Defamation, Privacy Torts, Misrepresentation, & Nuisance Flashcards
defamation - key points on governing law, alternative claims, death of plaintiff
• governing law:
- If the defendant is a PRIVATE person and the defamatory statement concerns a private matter, tort law governs the dispute.
- If the defendant is a PUBLIC official or public figure or the defamatory statement involves an issue of public concern, the dispute is governed by tort law and the First Amendment.
• alternative claims: if the First Amendment bars plaintiff’s recovery for defamation, plaintiff may not use other torts, such as IIED or Right to Privacy, to recover.
• Defamation and Right to Privacy suits are “personal” and thus END AT THE PLAINTIFF’S DEATH (in most states) and cannot be brought on behalf of someone who is already dead
»> with the possible exception of Misappropriation of Plaintiff’s Name or Likeness
defamation - pvt figure plaintiff, NOT a matter of public concern (PF case)
- A. Plaintiff is a private figure and the issue is not of public concern (e.g., a purely private dispute, such as a person accusing his neighbor of being “a drunk”).
- In such cases, the plaintiff has the burden of proving typical defamation factors:
i. defendant made a defamatory statement about plaintiff
ii. published by defendant to a third person who understands the statement and the language, AND
»> even negligently!
iii. damages
defamation - pvt figure plaintiff, NOT a matter of public concern (“defendant made a defamatory statement about plaintiff”)
• a statement is defamatory if it exposes the plaintiff to public hatred, contempt, scorn, shame, or ridicule (i.e. “lowers the plaintiff in the eyes of the community”)
• the statement must concern FACTS or opinions implying underlying facts (“A committed perjury in last week’s hearing”)
»> ***pure opinions (“A is a very poor lawyer”) or name-calling (“A is a racist”) will not suffice!
- ***plaintiff need not prove actual falsehood if the matter is not one of public concern
- the plaintiff is not required to prove that anyone who heard the statement believed it to be true
- the plaintiff must show that a reasonable person would think that the statement concerns the plaintiff and would understand the defamatory nature of the statement, unless the defamatory nature of the statement is clear on its face (i.e., defamation per se)
- at common law, defamation was a strict liability tort; most states today require proof that the defendant was at least negligent
defamation - pvt figure plaintiff, NOT a matter of public concern (“published by defendant to a third person who understands the statement and the language” - intent requirement)
publication may be intentional or negligent!
defamation - pvt figure plaintiff, NOT a matter of public concern (damages)
• damages are PRESUMED for harm to the plaintiff’s reputation for:
> > > all libel (written defamation, radio, TV, tape-recordings, most communications by computer)
> > > slander per se (oral defamation concerning (1) plaintiff’s trade or profession; (2) accusing plaintiff of a serious crime; (3) alleging that plaintiff currently has a loathsome disease (e.g., VD, Leprosy); or (4) alleging that plaintiff is unchaste
• for all other slanders, plaintiff must prove ACTUAL money losses (e.g., lost job, lost customers)
»> if the plaintiff is able to prove actual money losses, the plaintiff may also obtain damages for reputational harm
defamation - pvt figure plaintiff, NOT a matter of public concern (4 affirmative defenses)
- consent (e.g., plaintiff consented to release of investigative report)
- *** truth (defendant must prove truth)
• 3. absolute privileges
»> statements by federal or state legislators on the floor of the legislature or in committee sessions;
»> statements by executive officials in the course of their duties;
»> statements made in judicial proceedings by judges, jurors, attorneys, parties, and witnesses if in any way related to the proceeding;
»> statements between spouses
(if an absolute privilege exists, defendant may not lose it, REGARDLESS OF MALICE)
• 4. qualified (or conditional) privileges:
»> answering requests for information from prospective employers (e.g., references) or credit agencies;
»> reporting a crime to the police;
»> testifying in administrative hearings
(defendant will lose a qualified privilege if he makes false statements intentionally, recklessly, maliciously, or over-publishes the statement)
defamation - public figure, matter of public concern (what is a public figure?)
– a public official is an elected or appointed government official with substantial responsibility over government affairs (e.g., governor, state senator, mayor, police officer)
– a public figure is someone who has general notoriety (e.g., Brad Pitt, Michael Jordon) or someone who has asserted herself into a controversy
»> the spouse of a public figure is not automatically treated as a public figure
– for a limited purpose public figure, you only have to prove Actual Malice if the defamation relates to the reason you are famous!
defamation - public figure, matter of public concern (PF case)
– To prevail, a public official or figure must prove:
- i. a defamatory statement about the plaintiff
- ii. published by defendant (to a third person)
• iii. in addition, the plaintiff must prove the following two factors:
»> the statement is FALSE (probably by clear & convincing evidence)
»> ACTUAL MALICE: the defendant made the statement knowing it was false or with reckless disregard for the truth–i.e., a subjective belief that it was false or entertaining serious doubts as to its truthfulness (by clear and convincing evidence)
»»> **remember that malice here does not mean maliciously
»»> **remember, “recklessly” means a conscious disregard – so if someone simply doesn’t fact check, that is negligence, but if someone has some evidence of falsity and doesn’t research further, that is more likely recklessness
defamation - pvt figure plaintiff, matter of public concern (what constitutes “matter of public concern”; PF case)
– a matter is of public concern if the public has a legitimate interest in the subject (e.g., a private lawyer accused of overbilling the government for legal work)
– To prevail, the plaintiff must prove:
- i. a defamatory statement about plaintiff
- ii. published by defendant (to a third person)
• iii. in addition, the plaintiff must prove the following two factors (by a preponderance):
»> the statement is FALSE
»> the defendant made the statement (at least) NEGLIGENTLY
- iv. plaintiff must also prove actual damages (but actual damages are not limited to out-of-pocket losses)
- v. to recover presumed or punitive damages, plaintiff must prove that defendant made the statement with Actual Malice
misappropriation of plaintiff’s name/likeness:
what is it
key exception
distinguish from other privacy torts
real relationship/incidental use test
involves attempts by people to control the exploitation of names/likenesses/fame/and any pecuniary value attached to them (typically use to sponsor/endorse something)
***this tort does NOT cover “newsworthy” uses of another’s name or likeness, such as newspapers, magazines, or books
**unlike intrusion, disclosure, or false light, appropriation does not require the invasion of something secret/private pertaining to plaintiff, nor does it involve falsity
»> the interest protected is a proprietary one in the exclusive use of plaintiff’s name and likeness as an aspect of his identity
real relationship/incidental use test: if a publisher uses an image of an individual to entice the reader into buying a magazine or to illustrate a new story, that image must have a real relationship to the text within the publication – if it does, the use of the image is likely to be protected as “incidental” to the publication’s commercial status
»> this test is easily met, especially w regard to mainstream news publishers
intrusion into plaintiff’s seclusion:
key inquiry
governing rule
3 elements
o key inquiry: whether there is a reasonable expectation of privacy
o governing rule: one who INTENTIONALLY intrudes (physically or otherwise) upon the solitude of another or his private affairs is subject to liability to the other for invasion of his privacy, IF the intrusion would be highly offensive to a reasonable person
o Elements:
(1) intentional intrusion (physical or otherwise),
(2) solitude/seclusion (plaintiff must have an objectively reasonable expectation of privacy), AND
(3) intrusion is highly offensive to a reasonable person
»> courts must consider the extent to which the intrusion was, under the circumstances, justified by the legitimate motive of gathering the news – the mere fact the intruder was in pursuit of a “story” does not, however, justify an otherwise offensive intrusion (depends as well on the particular method of investigation used)
»> privacy is not, for purposes of this tort, an all-or nothing characteristic – it depends on the facts of the case
false light:
premise
2 elements
reminder for public figure plaintiffs
o premise: protects plaintiff’s right to put forth an accurate image of themselves before the public and to not have the image sullied by falsehoods that would be offensive to a reasonable person
»> protects right to inviolate personality, even if plaintiff is portrayed positively
o PF case:
(1) plaintiff must prove that ∆ has given WIDESPREAD publicity to a matter concerning another that places the other before the public in a “false light,” AND
(2) the “false light” in which the other was placed would be highly offensive to a reasonable person
o **distinguish “false” from “offensive” (the latter, on its own, is not protected here)
o **If the plaintiff is a public official or public figure, the plaintiff must satisfy the actual malice test to prevail on this tort.
public disclosure of private facts:
PF case
relationship to defamation
note on plaintiff’s desire to keep their info private
PF case:
- (1) ∆ publicly disclosed
- (2) a private fact
- (3) the disclosure is highly offensive to a person of reasonable sensibilities, AND
- (4) is of no legitimate public concern (i.e. not “newsworthy” based on contemporary mores)
creates liability for TRUTHFUL revelations under certain circumstances (so it’s a good alternative to a defamation charge, which only protects against false facts)
»> so for PDPF, you would say “the facts aren’t false, but they’re still highly offensive and not at all newsworthy!”
people who do not desire the limelight and do not deliberately choose a way of life/course of conduct calculated to thrust them into it nevertheless have no legal right to extinguish it if the experience that has befallen them are newsworthy, even if they would prefer that those experiences be kept quiet
distinguish PDPF from defamation
- defamation needs publication to a 3p whereas PDPF needs mass dispersment
- PDPF is aimed primarily at the mass media
- defamation “lowers plaintiff in the eyes of the community,” whereas for PDPF, π can recover even if the disclosed facts painted plaintiff in a positive light
- PDPF is often used as a backup claim to defamation - “okay, the statement wasn’t false, but it was highly offensive and not at all newsworthy”
rule for publishing matters in the public record
• There is an absolute privilege for publishing matters in the public record – i.e. obtained legally and honestly because they were disseminated publicly (e.g., name of rape victim).
