Defamation/Privacy/Economic Torts Flashcards
What are the elements of defamation?
Defamation is an economic tort regarding reputation [not hurt feelings].
Elements:
- D must make a defamatory statement, that specifically identifies the P
- There must be publication of the statement [de minimis]
- There must be damages [sometimes presumed]
What makes a statement defamatory?
It tends to adversely affect the reputation of the subject.
Mere name calling IS NOT defamatory [it is not factual, you just get the impression the speaker does not like the person].
Gray Zone: Statements of opinion. If they intimate a fact they can be defamatory “You’d be crazy to hire P and let him get his hands on your money.”
How does a defamatory statement “specifically identify the P?”
How does this work regarding groups of people?
Can obviously be by name, can also be by title.
If a small group is defamed, everybody in the group is defamed.
Example: 1 of the 3 hair stylists at the salon is a prostitute. All 3 are defamed.
If a large group is defamed, nobody is defamed.
NOTE: A statement is only defamatory if the person is alive.
What does the “publication element” of defamation really mean?
Just that at least 1 person other than the plaintiff himself was told.
Negligent publication also counts: If you are sending a letter to an embezzler (future P), but the address is written incorrectly and it goes to someone else.
When are damages in defamation presumed?
Slander vs. Libel?
Libel: Defamation is written down or otherwise recorded. Damages are presumed.
Slander: An oral or spoken defamation. [“S” for spoken].
1) Slander per se: Damages are presumed. If the statement falls into one of these categories:
- Related to P’s business or Profession
- A statement that P committed a crime of moral turpitude [serious crime]
- Statement imputing the chastity of a woman.
- Statement that P has leprosy or venereal disease.
- NEW YORK adds imputation of homosexuality.
2) Other slander:P must prove economic harm!
*Get NY distinction on extrinsic fact for this*
What are the 3 affirmative defenses to defamation?
1) Consent
2) Truth
3) Privileges
Who has burden of proof to prove truth of a defamatory statement?
D has burden of proff to raise this affirmative defense.
What absolute privileges operate as affirmative defenses to defamation?
1) Absolute Privileges: The privilege flows from who the D is:
- Statements made by spouses communicating with each other
- Officers of the Government in the conduct of official activities [most importantly, judiciary, including lawyers and witnesses.
- Members of the media. [Privilege when they engage in accurate reporting of public proceedings].
What qualifying privileges operate as affirmative defenses to defamation?
Qualifying privileges to defamation arise out of context:
- People writing letters of recommendation or giving references.
- Statements made to the police.
These statements must be made in good faith (reasonably think it is true), and must be confined to matters relevant to the purpose of the privilege
What must a P show when a defamatory statement concerns matters of public concern?
P must show:
1) The 3 defamation elements, PLUS
2) Plaintiff must PROVE the statement is false [switched burden of proof]
3) Intent/Recklessness: Public Figure Plaintiff must show the statements was made with fault/culpability [either that the D knew (intent) the statement was false when he made it, or that it was made with reckless disregard to the truth].
* Exception:* If the plaintiff is a private figure (little guy), P only needs to show negligence for the third element.
What degree of D’s fault must a public figure show to prevail on a defamation claim regarding a matter of public concern?
Intent or Recklessness.
Negligence if a private figure is suing for defamation regarding a matter of public concern.
What are the 4 privacy torts?
- Appropriation [NY+MBE]
- Intrusion [MBE only]
- False Light [MBE only]
- Disclosure [MBE only]
Which of the privacy torts exists in NY?
Only appropriation.
What is appropriation?
What is the remedy?
Defendant uses plaintiff’s name or image for a commercial advantage.
Cautions:
- Newsworthiness: You can use images/names in a newspaper/magazine no problem.
- This tort is not limited to celebrities.
Remedy: Damages or injunction.
[The only privacy tort recognized in NY]
What is intrusion?
Def: Invasion of P’s seclusion in a way that would be highly offensive to an average person.
Examples: Secret camera in your house, or intercepts your phone calls or emails, or peers in your window or listens at your keyhole.
Caution:
Must be in a location where you have a reasonable expectation of privacy [not in public, eavesdropping ok at a cocktail party].
