Dignitary Torts

Question 1

Appropriation & False Light

Answer 1

Appropriation - Use of P’s name or likeness for commercial purposes without P’s consent.

• Newsworthiness exception - no liability for use of P’s name or likeness for the purpose of reporting news

False light - widespread dissemination (Publication) of a material misrepresentation or falsehood about P that would be objectionable to a reasonable person.

• Includes mischaracterization of P’s views or conduct
• Matters of public concern - D must have actual malice or reckless disregard for the truth of the matter publicized
  
  • Note - this is the same as the constitutional considerations for defamation
• No newsworthiness exception

Question 2

Intrustion upon seclusion

Answer 2

Intrusion upon seclusion - Intrusion upon P’s private affairs in a manner that would be objectionable to a reasonable person

• P must have a reasonable expectation of privacy
  
  • There is no reasonable expectation of privacy in a public place
• Often arises in the context of peeping, eavesdropping or using hidden cameras on P’s Private property
• No newsworthiness exception
  *

Question 3

Disclosure

Answer 3

Disclosure of P’s confidential or private information

• Requirements - disclosure must be:
  1. Objectionalbe to a reasonable person
• Public activities are not objectionable
• IE D discloses that the mayor secretly goes to gay clubs - mayor cannot recover for disclosure b/c his acts occur in public places
  2. Publicized to at least some small extent

Newsworthiness exception - no liability if private facts are newsworthy

Question 4

Defamation

Answer 4

A statement concerning P, made by D to a third person, that is harmful to P’s reputation

• If the statement involves a matter of public concern or a public figure official, falsity and fault may be required.

Elements:

1. Defamatory statement - adversely affects P’s reputation
   
   • Must be based on specific facts: name-calling is insufficient
2. Concerning P - it must be reasonably understood that the statement concerns a living P or a very small group of P’s
3. Publication - the statement must be intentionally or negligently made to a third person
4. Harmful to P’s reputation
5. Falsity & fault - only required if the statement involves a matter of public concern or a public figure official

Liability for republication - the republisher of a defamatory statement is liable to the same extent as the original publisher

Damages - P’s burden in proving damages depends on whether the defamatory statement was libel or slander

Question 5

Defamation:

Constitutional Considerations

Answer 5

1st Ammend considerations arise when defamation involves a public figure, public official and/or a matter of public concern.

Public figures, public officials, and matters of public concern

• Public figure - one who has pervasive fame or notoriety or voluntarily assumes a central role in a particular public matter
• Public official - public office holder
• Matter of public concern - statement relates to a community interest or concern (includes national interests and concerns)

**Additional elements **- if defamation involves a public figure, official, and/or public concern, P must prove:

1. Falsity - P must prove the statement was false
2. Fault - P must prove D was at fault; standards differ for public vs. private pigures:
   
   • Public official or figure - actual malice standard (knowledge of the statement’s falsity or reckless disregard to whether it was false)
   • Private figure - negligence of the statement’s veracity

Damages

• Public figures or officials - compensatory damages are presumed; puntivtive damages are available
• Private figures - damages for actual injury only; P must prove actual malic for compensatory or punitive damages

note: for private figures and private matters, there is no fault standard at common law

Question 6

Defamation:

Damages Considerations

Answer 6

Damages depend on thether the defamatory statement constitutes libel, slander or slander per se

Libel - P does not have to prove damages

• Libel - a written defamatory statement
  
  • Note - TV and radio broadcasts are considered libel

Slander - P must prove special damages unless the statement constitutes slander per se

• Slander - a spoken defamatory statement
• Special damages - a specific economic loss resulting from the slander, beyond damage to P’s reputation or emotional injury
• Slander per se - A slanderous statement that either:

1. Concerns and adversely reflects on P’s business or preofessional reputation
2. Claims that P has a loathsome disease
3. Claims that P committed a crime of moral turpitude
4. Imputes a woman’s chastity

Question 7

Defamation:

Defenses

Answer 7

Consent, truth, and privilege may be valid defenses to defamation

Consent

• IE P may consent to an organization investigating her and sharing it’s findings with potential employers

Truth

• Truth is a complete defense to a defamation claim

Privilege

• **Absolute privilege ** - Protects statements by gov officials in their official capacity
• Qualified privilege - D’s liability for defamatory statements is limited if the purpose of the speech is to promote truthfulness
  
  • IE credit report, letter of recommendation, employment reference

Question 8

Wrongful Legal Proceedings:

Malicious Prosecution & Abuse of Process

Answer 8

Malicious Prosecution

• Arises when D brings a completely frivolous charge or claim against P with an improper purpose

1. Elements:
   
   1. ​​D commenced a prior criminal or civil legal proceeding against P
      
      • Prosecutors are immune
   2. The proceeding terminated in P’s favor
   3. No probable cause for the original proceeding
   • D knew P was not gulity (criminal) or liable (civil) or had insufficient facts to reasonably believe in P’s guilt or fault
     4. D had an improper purpose in initiating the proceeding
     5. Damages

Abuse of Process

• Arises when D uses the legal system as an ulterior purpose to threaten or act against P
• Elements:

1. Wrongful use of process for an ulterior purpose
2. Definite act or threat against P to accomplish an ulterior purpose
3. Damages