Economic:dignitary Torts Flashcards
What are the 3 elements offalse light? NOTE: NY distinction
1)widespread dissemination of a major falsehood abt π 2) actwould be highly offensive to a reasonable person …ONLY IF the matter is in the public interest… 3) the ∆ had malice (i.e. knowledge of falsehood or reckless disregard as to its falsity) NOTE: no need to prove special economic damages, emotional distress/anguish is suffiicent NOTE: this tort ~ defamation; differences: (i) for false light the falsehood doesn’t have to defame; (ii) re: damage award: defamation = economic damages, BUT false light = dignitary damages NY DISTINCTION In NY, there is no “common law right to privacy”»_space;this tort doesn’t exist
What are the 2 elements ofmisappropriation of likeness? NOTE: NY distinction
1) The unauthorized use of π’s picture or name 2) The use is for ∆’s COMMERCIAL advantage NOTE: there is a newsworthiness exeption wrt this tort (e.g. if Sports Illustrated put pic of Jeter on mag, then mag isn’t liable; unauthorized bio) NOTE: no need to prove special economic damages, emotional distress/anguish is suffiicent NY DISTINCTION In NY, there is no “common law right to privacy”; however, “appropriation” is recognized by STATUTE The c/a survives death of π Does not protect corporations
What are the 5 elements ofintentional misrepresentation (fraud)?
1) misrepresentation of a material fact Silence is generally NOT enough 2) scienter (∆ intentionallyOR recklessly made thefalsestmt) 3) ∆ had intent to induce π’s reliance on the stmt 4) justifiable and actual reliance by π Generally, reliance is justified only as to a stmt of fact (not opinion) 5) actual pecuniary damages (e.g. economic loss) NOTE: there are NO defenses to intentional misrepresentation
What are defenses toinvasion of privacy torts? NOTE: NY distinction
1) Consent: Express consent OR implied consent BUT incapcitated individuals (incompetents; drunks; etc) are DEEMED INCAPABLE of consent 2) Absolute privilege w/r/t false light or disclosure: can NEVER be loss; encompasses remarks… made during judicial proceedings (judges, lawyers, witnesses, etc) by legislators during proceedings by federal executive officals in “compelled” broadcasts b/t spouses 3) Qualified privilege w/r/t false light or disclosure: can be lost thru abuse (i.e. it must be made in GOOD FAITH; and confined to RELEVANT STMTS/BE IN SCOPE) Generally: will arise in any situation where there is public interest to encourage ppl to speak candidly NOTE: truth IS NOT a defense NY DISTINCTION:In NY, there is no “common law right to privacy” only protection of appropriation by statute, which provides for the following defenses to prima facie appropriation… Prior written consent A photographer exhibiting his work (unless continues after written notice of objection) Goods or artwork containing name/picture that has been disposed of
What are 4 defenses todefamation?
1) Consent: Express consent OR implied consent BUT incapcitated individuals (incompetents; drunks; etc) are DEEMED INCAPABLE of consent 2) Truth: where π doesn’t have to prove falsity (i.e. purely private matter), if ∆ proves truth then it’s a complete defense 3) Absolute privilege:can NEVER be loss; encompasses remarks… made during judicial proceedings (judges, lawyers, withnesses, etc) by legislators during proceedings by federal executive officals in “compelled” broadcasts b/t spouses 4) Qualified privilege: can be lost thru abuse (i.e. it must be made in GOOD FAITH; and confined to RELEVANT STMTS/BE IN SCOPE) Generally: will arise in any situation where there is public interest to encourage ppl to speak candidly
What are the 4 elements ofinterference w/ business relations?
1) existence of a valid K relationship b/t π and a 3d party OR a valid business expectancy of π 2) ∆’s knowledge of the relationship/expectancy 3) intentional interference by the ∆ inducing a breach/termination of the K/expectancy 4) damages
What are the 3 elements of disclosure? NOTE: NY distinction
1) public disclosureof a private/confidential infoabt π Liability would attach even if the information disclosed was true 2) disclosurewould be highly offensive to a reasonable person …ONLY IF the matter is in the public interest… 3) the ∆ had malice (i.e. knowledge of falsehood or reckless disregard as to its falsity) EXCEPTION: the “duel spheres of life” fact-pattern»_space;It’s often that you share info with one sphere (neighbors) but NOT other (employer); if that info is carried to another sphere (employer), then it’s not actionable as this is considered public NOTE:there is a news worthiness exception (if there is a public desire to know, then this is relaxed) NOTE: no need to prove special economic damages, emotional distress/anguish is suffiicent NY DISTINCTION In NY, there is no “common law right to privacy”»_space;this tort doesn’t exist
What are the 5 elements of defamation? NOTE: NY Distinction
1) Defamatory language of OR concerning the π Defamatory = if it adversely affects the reputation the subject of that stmt (i.e. name calling»_space; never; fact-based opinion»_space; maybe) Has to be concerning a living person Stmts abt a group: (i) if the stmts are about a large group, NO one is defamed; (ii) if the stmt is about a small group, π may recover if it can be reasonably be associated with π 2) Publication (intentionally OR negligently)by ∆ to a 3d person (NOT just π) NO de minimis req: revealing to ONE 3d person is sufficient for publication Primary publishers (newspapers, etc) are ALWAYS liable; secondary publishers (newspaper stand, etc) MAY be liable (if they knew of defamatory content) 3) Damage to π’s reputation (type depends on type of defamation) Libel (written/printed/broadcasted publication of defamatory language): general damages are PRESUMED; no need to prove special damages Slander (spoken defamatory language): UNLESS slander per se [(i) related to π’s business/profession; (ii) π has committed crime of moral torpitude (e.g. fraud); (iii) the woman π is unchaste; (iv) π has loathesome disease (leprosy; or STD)], π has to prove special economic damages NY DISTINCTION: there is an additional slander per se category available: imputation of homosexulaity …[1st Am reqs] ONLY IF matter of “public concern”… 4) Falsity of the dematory language If stmt is TRUE, then NO c/a for defamation 5) Fault on ∆’s part (depending π’s status) If π is PUBLIC OFFICIAL OR FIGURE, π has to prove malice (knowledge that stmt is false OR reckless disrgard as to its truth) to get damages If π is PRIVATE PERSON (AND matter of PUBLIC CONCERN), π has to prove at least negligence as to stmts falsity to get damages for ACTUAL INJURY NOTE: liability for IIED for defamatory speech MUST meet the defamation stds and CANNOT exist for speech otherwise protected by the 1st Am
What are the 2 elements ofintrusion upon a person’s seclusion? NOTE: NY distinction
1) ∆’s prying or intruding into a private matter If no reasonable expectation of privacy (out in park), then not private and NO c/a for intrusion 2) Intrusion is highly offensive to a reasonable person NOTE: no need to prove special economic damages, emotional distress/anguish is suffiicent NY DISTINCTION In NY, there is no “common law right to privacy”»_space;this tort doesn’t exist
When isinterference w/ business relations by ∆ privileged?
A privilege can be found if ∆… interfered only with π’s prospective business rather than existing K used commercially acceptable means of persuasion rather than illegal/threatening tactics is a competitior of π seeking the same prospective business is a fiduciary of the 3d party, responsible for giving advice
What are the 2 elements ofmalicious prosecution?
1) ∆ institutes criminal or civil proceedings against π w/o probable cause Prosecutors are immune from liability 2) termination in favor of the π 3) case was brought for an improper purpose (e.g. brought case for revenge) 4) damages
