Defamation; Privacy Torts

Question 1

Common law defamation

Answer 1

Elements of a common law claim:
1) Defamatory language;
2) Of or concerning the plaintiff;
3) Published by defendant to a third person;
4) Damage to plaintiff’s reputation

Question 2

First Amendment Defamation

Answer 2

Six elements total

First four elements of common law claim
5) Falsity of the defamatory language;
6) Fault on the part of the defendant

Question 3

Element 1: Defamatory Language

Answer 3

Must be something that could adversely affect plaintiff’s reputation.

Opinion is not enough unless it appears based on specific facts/allegations.

No defamation claims for deceased.

Question 4

Element 2: Of or concerning P

Answer 4

If a reasonable listener, reader or viewer would not know who the statement was regarding, this element is not met.

Question 5

Element 3: Publication

Answer 5

Do not interpret this literally.

Publication means written or spoken so that a third person reads or hears it.

It can be an intentional publication or negligent publication (ie., someone walking down hall hears a private conversation- statements are published to person walking down the hall)

Question 6

Element 4: Damage to P’s reputation

Answer 6

Varies depending on what TYPE of defamation it is.

Options: slander (spoken), slander per se, libel (printed).

Libel: general damages presumed; P does not prove special damages.

Slander per se: treated the same as libel.

Slander: Plaintiff must prove special damages.

Question 7

Slander Per Se

Answer 7

Slander per se falls into four categories. Statements that:

 1) One is or was guilty of a crime of moral turpitude;
 2) One has a loathsome disease;
 3) Adversely reflect on one’s conduct in a business or profession; or 
  4) A woman is unchaste.

Question 8

First Amendment Defamation

Answer 8

This applies where it is a matter of public concern.

A matter of public concern: this element could be debatable. Does it affect the community or is it a purely private matter?

Question 9

Element 5: Falsity

Answer 9

Plaintiff must prove the falsity of the statement.

This element is for First Amendment defamation ONLY.

Question 10

Element 6: Fault on the part of D

Answer 10

Plaintiff must prove fault. The level of fault will depend on P’s status.

Is P a public figure or private individual?

Public figure/public official: P must prove malice on the part of D.

Private individual: P must prove negligence.

Question 11

What’s a Public Figure?

Answer 11

A public figure is someone who achieve fame or notoriety or voluntarily assumes a central role in a public controversy.

Question 12

Malice Requirement

Answer 12

Under New York Times v. Sullivan, malice must be proved in First Amendment defamation cases brought public figures/public officials.

Malice is:
1) Knowledge that the statement was false; or
2) Reckless disregard as to whether it was false.

Remember, private persons do not need to prove malice.

Question 13

What level of fault?

Answer 13

If it is a matter of public concern and P is a public official or public figure, malice must be proved.

If it is a matter of public concern and P is a private figure, negligence must be proved.

If it is a private matter and a private individual, don’t address this element- this is a common law defamation case.

Question 14

Defenses to Defamation

Answer 14

Consent

Truth

Absolute privileges

Qualified privileges

Question 15

Exam Tip: First Amendment Defamation

Answer 15

If it is a matter of public concern but you cannot prove element 5, (it is actually true), consider whether a claim for IIED or a privacy tort could be raised instead.

Question 16

Privacy Torts

Answer 16

Four main privacy torts:
1) Appropriation of P’s picture or name;
2) Intrusion upon P’s affairs or seclusion;
3) Publication of facts placing P in a false light;
4) Public disclosure of private facts about P

Question 17

Appropriation

Answer 17

Unauthorized use of P’s name or likeness for D’s commercial advantage.

Question 18

Intrusion

Answer 18

Prying or intruding that would be objectionable to a reasonable person.

P must be in a place of privacy. No intrusion actions for things in public.

Question 19

False Light

Answer 19

False light must be something objectionable to a reasonable person under the circumstances.

This is broader than defamation.

Question 20

Public Disclosure of Private Facts

Answer 20

Information must be private and disclosure must be objectionable to a reasonable person.

Question 21

Causation

Answer 21

For all privacy actions, the invasion upon P’s privacy must have been proximately caused by D’s conduct.

Question 22

Damages

Answer 22

No requirement to prove special damages.

Emotional distress and mental anguish are sufficient damages for invasion to privacy actions.

Question 23

Defenses

Answer 23

Consent

Privileges of defamation law, absolute and qualified, apply where applicable.