Defamation, Privacy, Dignitary Harms

Question 1

What are the elements of defamation?

Answer 1

• defamatory statement
• that specifically identifies P (reader would understand who it was)
• published to a third party
• damage to P reputation
• falsity of statement
• fault on the part of D

Question 2

What is a defamatory statement? Must be on face?

Answer 2

One tending to adversely affect one’s reputation. Statement of opinion is only actionable if it appears to be based on specific facts. Name-calling insufficient.

If not defamatory on face, can plead additional facts as inducement to establish defamatory by innuendo.

Question 3

Cam you defame dead person? Corp?

Answer 3

No, yes

Question 4

is extrinsic evidence allowed to prove that defamatory statement refers to P?

Answer 4

Yes - this is called colloquium.

Question 5

Can statement re a group be actionable defamation?

Answer 5

• if refers to all members of small group - yes
• if refers to some members of small group - yes, if P can show reader would view statement as referring to them
• large group - NO

Question 6

Must publication of defamation be intentional?

Answer 6

Publication must be intentional but not defamation itself.

Question 7

What is the single publication rule?

Answer 7

Generally, each repetition of statement is considered separate publication for damages purposes, but now most states have single publication rule which says copies of periodicals/newspapers/etc. are all treated as one publication.

Question 8

Who may be held liable for defamation?

Answer 8

Primary publishers to same extend as author or speaker.

Anyone who repeats (even if says they do not believe it) (?)

not ISPs

Question 9

What damages must defamation P show?

Answer 9

Depends on type of defamation:

(1) libel: defamation in permanent form (writing, tv) - general damages are presumed, P does not need to prove special damages
- minority jdx’s: ONLY if statement is libel on its face will they presume general damages, otherwise require special damages proof

(2) slander: spoken defamation - P must prove special damages UNLESS the statement:
- adversely reflected the P’s biz or profession
- stated P committed serious crime
- impute P w/ serious sexual misconduct
- state P has loathsome disease

Question 10

When does P have to prove falsity?

Answer 10

Most jdx’s require P to prove falsity. At c/l rule was D use truth as defense. Some states still follow c/l rule - but even then P will have to prove falsity in cases where P is obligated under 1A to prove fault.

Question 11

What degree of fault must defamation P show?

Answer 11

In general, majority states req. showing of fault in all cases (negligence+).

(1) public official or public figure - ACTUAL MALICE
- public figure = someone who has achieved pervasive fame or notoriety OR by voluntarily assuming a central role in a particular public controversy
- actual malice = knowledge of falsity OR reckless disregard wrt falsity

(2) private person + matter of public concern - NEGLIGENCE
- if negligent, then can only recover for actual injury (= any proven injury)
- if actual malice found, damages presumed + can get punitives

Question 12

What are 3 possible defenses to defamation?

Answer 12

1. consent - complete defense (valid, knowing, voluntary, etc)
2. truth (when P not obligated to prove)
3. privilege
   (a) absolute privilege for comms between spouses + remarks made during judicial proceedings, by legislators during proceedings (ANY comments), or by federal executive officials in compelled broadcasts

(b) qualified privilege - D has burden to show privilege applies i.e. that there is public interest in encouraging candor (e.g. references and recs, reports of public hearings, statements made to ppl taking official action, statements made in defense of self/reputation)

Question 13

What are the 4 types of invasion of privacy? What is req’d of all?

Answer 13

1. appropriation of P’s picture or name
2. intrusion on P’s affairs or seclusion
3. publication of facts placing P in false light
4. public disclosure of private facts about P

Reqs:

• personal right - doesn’t extend to others
• must be proximately caused by D
• NO need to prove special damages - emotional distress and mental anguish sufficient

Question 14

Does P need to prove special damages in invasion of privacy claim?

Answer 14

No - emotion distress and mental anguish are enough

Question 15

What is appropriation of P picture/name claim?

Answer 15

• unauthorized use
• of P photo or name
• for D’s commercial advantage

Note: liability generally limited to ads, promotions (mere economic benefit insufficient)

Question 16

What are elements of intrusion into seclusion claim?

Answer 16

• intrusion is highly offensive to reasonable person
• into private sphere - (e.g. no public photos)

E.g. eavesdropping, spying, intercept calls

Question 17

What are elements of false light claim?

Answer 17

• D attributes to P views they did not hold or actions they did not take
• that puts P in false light that would be highly offensive to reasonable person
• statement published to public at large/large group
• If a matter of public interest, requires actual malice on part of D

Question 18

What are elements of public disclosure of private facts claim?

Answer 18

• public disclosure
• of private info re P
• that is highly offensive to reasonable person

Note: truth irrelevant

Question 19

What must P show to est prima facie case of intentional misrepresentation (fraud, deciept)? What are defenses?

Answer 19

• misrepresentation of a material past or present fact (usually not opinion, unless purported superior knowledge)
• scienter - D knew or believe it was false
• intent to induce P to act or refrain from acting in reliance on misrepresentation
• causation - actual reliance (note: could be liable to 3rd parties if foreseeable)
• justifiable reliance
• damages - P must suffer actual pecuniary loss

Note: NO defenses

Question 20

When does someone have duty to disclose fact?

Answer 20

Not unless (1) fiduciary relationship (2) selling real property and knows P is unaware of/cannot reasonably discover material info about transaction, (3) has spoken and their utterance deceives P

Question 21

What elements are req’d in a prima facie case for negligent misrepresentation?

Answer 21

• misrepresentation by D in biz or professional capacity
• breach of duty towards a particular P
• causation
• justifiable reliance
• damages

Question 22

What elements are req’d in prima facie case of interference with business relations?

Answer 22

• existence of valid K relationship between P and third party OR valid biz expectancy of P
• D knowledge of relationship
• intentional interference by D inducing breach or termination of the relationship or expectancy
• damages

Question 23

When may interference with business relations be privileged? I.e. D has defense?

Answer 23

When D :

(1) interefered only with P’s prospective biz not existing
(2) used commercially acceptable means of persuasion rather than illegal/threatening tactics
(3) is a competitor of P seeking same customers
(4) has financial interest in or responsibility for third party