Defamation, Privacy, Misrepresentation and Business Torts Flashcards
What are the elements to a defamation action?
P must prove:
- D made a defamatory statement
- Of or concerning P
- Publication to a third party who understood nature
- Damages to P’s reputation
True or false: a statement must be false to be deemed defamatory language
True. Defamatory statements must be false to be actionable.
True or false: Opinions are actionable as defamation.
False. But an opinion that implies a basis in fact is actionable for defamation.
When can a member of a group bring a defamation action
Only if the group is so small or context is so clear the matter can reasonably be understood to refer to that member
How is publication defined?
Conveyed to a third party
+ newspapers
+ social media
+ conversations
True or false: a person who repeats a defamatory statement may be liable
True
What does a public figure have to prove for defamation?
Person who made the statement knew it was false or acted with reckless disregard (subjective) for the truth
What does a private individual have to prove for defamation?
Statement of public concern
Person who made the statement was negligent with respect to falsehood
True or false: Libel consists of written statements only
False. Written, printed, or recorded statement
Includes TV/radio broadcasts, email
Slander is a statement that is…?
Verbal
True or false: The truth is an absolute defense to defamation
True. Truthful statement cannot be actionable as defamation.
Note that the plaintiff must establish falsity (vs. D showing truthfulness)
Name the situations that lend themselves to absolute privileges
Completely immune from liability includes:
+ Judicial proceedings
+ legislative proceedings
+ Between spouses
+ required publications by radio/tv
A conditional statement is made in ______ pursuant to some duty or responsibility
Good faith
Includes statements made in the interest of D (defending reputation)
Interest of recipient of statement
Affecting some other public interest
True or false: Right of privacy applies to individuals but not corporations
True
The four separate causes of privacy actions are:
- Intrusion
- False Light
- Appropriation
- Private facts
The six elements of fraud are…?
- False representation
- Knowledge (Scienter)
- Intent
- Causation
- Justifiable Reliance
- Damages
True or false: there is no duty to disclose a material fact to other parties
True. UNLESS
+ fiduciary relationship
+ D is aware that the other party is mistaken about basic facts of transaction
+ Custom suggests disclosure should be made
+ Other party likely be misled by statements D made earlier
True or false: Reliance is justifiable if the facts are obviously false or it is clear that D was stating an opinion
False. Not justifiable.
What are the typical damages for fraud?
Most jurisdictions: benefit of the bargain if P proves actual, economic, or pecuniary loss
Some jurisdictions: out of pocked losses/cost of conforming
What are the elements to negligent misrepresentation?
- D provided false information to P
- During the course of a business or profession
- Causing justifiable reliance
- P is either in a contractual relationship with D or P is a third party known by D to be a member of a limited group for whose benefit the information is provided
True or false: Negligence defenses cannot be raised
False. They CAN be raised (i.e., contributory negligence, assumption of the risk)
What damages can a plaintiff recover for negligent misrepresentation?
Out of pocket and consequential damages IF the negligent representation is proven with sufficient certainty (elements evidenced)
Can terminable at will contracts count as a tort?
No. for intentional interference, the D must intentionally interfere and cause a breach
To rise to interference of contract, D’s conduct must be…?
Exceeding bounds of fair competition and free expression
Interference with a prospective economic advantage has all the same elements for interference with a contract except…?
a contract
What are the elements for misappropriate of trade secrets?
P owns info not publicly known
P has taken reasonable precautions to protect the info
D acquires the information by improper means
