Economic and Dignitary Torts

Question 1

What are the elements of common law defamation? What are the constitutional elements?

Answer 1

The elements of common law defamation are:

1. Defamatory language;
2. “Of or concerning” the plaintiff;
3. Publication thereof by defendant to a third person; and
4. Damage to plaintiff’s reputation - depends on the type of defamation, slander or libel, involved.
   a. Libel - written or printed publication of defamatory language. Plaintiff does not need to prove special damages and general damages are presumed.
   b. Slander - spoken defamation. Plaintiff must prove special (economic) damages, unless it falls with slander per se categories: (i) adversely reflect on one’s conduct in a business or profession; (ii) one has a loathsome disease (e.g. leprosy; VD); (iii) one is or was guilty of a crime involving moral turpitude (most common law crimes); OR (iv) a woman is unchaste.

If the defamation involves a matter of public concern, the Constitution requires the plaintiff to prove two additional elements:

5. Falsity of the defamatory language; and
6. Fault (not in good faith) on the part of the defendant.
   a. Public figure: “actual malice,” which means knowledge that the statement was false OR reckless disregard as to whether it was false.
   b. Private figure: actual malice OR negligence + actual injury.

Question 2

What are the defenses to defamation?

Answer 2

1. Consent
2. Truth: where the plaintiff does not have to prove falsity, defendant may prove truth as a complete defense.
3. Absolute privilege: remarks made during judicial proceedings, by legislators during proceedings, by federal executive officials, in “compelled” broadcasts, and between spouses.
4. Qualified privilege: sometimes the speaker may have a qualified privilege for the following - reports of official proceedings; statements in the interest of the publisher; statements in the interest of the recipient; and statements in the common interest of the publisher and recipient. Must act in good faith and reasonable belief in the truth.

This privilege can be lost if (i) the statement is not within the scope of the privilege, or (ii) it is shown that the speaker acted with actual malice.

Question 3

What are the four branches of the invasion of the right to privacy?

Answer 3

a. Appropriation of Plaintiff’s Picture or Name: It is necessary to show unauthorized use of plaintiff’s picture or name for defendant’s commercial advantage.

EXCEPTION: Newsworthy uses

b. Intrusion on Plaintiff’s Affairs or Seclusion: The act of prying or intruding must be highly offensive to a reasonable person. The intrusion must be a place where there is a “reasonable expectation of privacy.”
c. Publication of Facts Placing Plaintiff in False Light: Wide publication of a false statement. “False light” exists where one attributes to plaintiff views he does not hold or actions he did not take. The false light must be something highly offensive to a reasonable person under the circumstances. There must be publicity.

LIMITATION: For the First Amendment, if the matter is of public interest, actual malice on the defendant’s part must be proved.

d. Public Disclosure of Private Facts About Plaintiff: This wrong involves public disclosure of private information about plaintiff (e.g. matters of public record are not sufficient). The public disclosure must be highly offensive to a reasonable person of ordinary sensibilities.

Question 4

What are the elements of intentional misrepresentation (fraud, deceit)?

Answer 4

1. Affirmative misrepresentation of a material past or present fact;
   a. Opinions don’t count.
   b. Silence doesn’t count either.
2. Scienter (i.e. when defendant made the statement, she knew or believed it was false or that there was no basis for the statement);
3. Intent to induce plaintiff to act or refrain from acting in reliance upon the misrepresentation;
4. Causation (actual reliance)
5. Justifiable reliance; AND
6. Damgaes (plaintiff must suffer actual pecuniary loss)

Question 5

What are the elements of negligent misrepresentation?

Answer 5

1. Misrepresentation by defendant in a business or professional capacity;
2. Breach of duty toward a particular plaintiff;
3. Causation;
4. Justifiable reliance; and
5. Damages

Generally, this action is confined to misrepresentations made in a commercial setting, and liability will attach only if reliance by the particular plaintiff could be contemplated.

Question 6

What are the elements of interference with business relations?

Answer 6

1. Existence of a valid contractual relationship between plaintiff and a third party or valid business expectancy of plaintiff;
2. Defendant’s knowledge of the relationship or expectancy;
3. Intentional interference by defendant inducing a breach of termination of the relationship or expectancy; and
4. Damages