Economic_dignitary Torts Flashcards
PRIVACY TORT: FALSE LIGHT
What are the 3 elements ofFALSE LIGHT?
NOTE: NY distinction
1)PUBLICATION: WIDESPREAD DISSEMINATION of a MAJOR FALSEHOOD abt π
2) HIGHLY OFFENSIVE: Stmt would be HIGHLY OFFENSIVE to a REASONABLE PERSON
3) MALICE: 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 sufficient
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
e. g. mis-characterizing π’s religious beliefs is an example of false light that is NOT also defamation
NY DISTINCTION
In NY, there is no “common law right to privacy”; → THIS TORT DOES NOT EXIST. However, “appropriation” is recognized and protected by STATUTE, which provides for the following defenses to prima facie appropriation…
(i) Prior written consent
(ii) A photographer exhibiting his work (unless continues after written notice of objection)
(iii) Goods or artwork containing name/picture that has been disposed of
PRIVACY TORT: MISAPPROPRIATION
What are the 2 elements ofMISAPPROPRIATION of likeness?
NOTE: NY distinction
1) UNAUTHORIZED USE of π’s IMAGE OR NAME
2) The use is for ∆’s COMMERCIAL advantage
NOTE: there IS a newsworthiness exception w.r.t. this tort (e.g. if Sports Illustrated put pic of Lebron James on mag, then mag isn’t liable; unauthorized bio also okay)
NOTE: no need to prove special economic damages, emotional distress/anguish is sufficient
NY DISTINCTION
In NY, there is no “common law right to privacy”; → THIS TORT DOES NOT EXIST. However, “appropriation” is recognized and protected by STATUTE, which provides for the following defenses to prima facie appropriation…
(i) Prior written consent
(ii) A photographer exhibiting his work (unless continues after written notice of objection)
(iii) Goods or artwork containing name/picture that has been disposed of
The c/a survives death of π Does not protect corporations
FRAUD
What are the 6 elements ofintentional misrepresentation (FRAUD)?
1) MISREPRESENTATION of a MATERIAL fact → SILENCE is generally NOT ENOUGH
2) INTENT
∆ intentionallyOR recklessly made thefalsestmt
→ An HONEST ERROR generally WILL NOT COUNT
3) Goal to INDUCE RELIANCE
∆ had intent to induce π’s reliance on the stmt
→ Misrepresentation made w/desire to lure π into the transaction
NOTE: sometimes misrepresentation is found when false info was intended to lure π into the transaction but π shared the info to a 3rd party who then relied on the info and entered into the transaction
4) JUSTIFIABLE ACTUAL RELIANCE occurred
RELIANCE by π actually occurred AND must be justifiable → Generally, reliance is justified only as to a stmt of fact BUT NOT OPINION
→ JUSTIFIABLE to rely on stmt of fact by a ∆ who has SUPERIOR SKILL or INFORMATION
5) CAUSATION
6) DAMAGES: ACTUAL PECUNIARY DAMAGES occurred (e.g. economic loss)
NOTE: there are NO DEFENSES to intentional misrepresentation
5 ELEMENTS IN PLAIN LANGUAGE
—————————————————–
I was Defrauded by John b/c he:
1) Lied to me (STATEMENT)
2) On Purpose (INTENT)
3) With the Goal of Tricking Me (INDUCE RELIANCE)
4) And I Fell For It (RELIANCE OCCURRED)
5) So ______ happened to me (CAUSATION)
6) And I Got Screwed (DAMAGES OCCURRED)
DEFENSES to PRIVACY TORTS
What are 3 defenses toinvasion of privacy torts?
NOTE: NY distinction
1) CONSENT: Express consent OR implied consent BUT incapacitated individuals (incompetents; drunks; etc) are DEEMED INCAPABLE of consent
→ APPLIES FOR ALL 4 PRIVACY tots
2) ABSOLUTE PRIVILEGE
Encompasses remarks…made during judicial proceedings (judges, lawyers, witnesses, etc)
(i) by legislators during proceedings
(ii) by witnesses, attorneys and others
during proceedings
(iii) by federal executive officials
(iv) in “compelled” broadcasts
(v) b/t spouses
→ ONLY APPLIES w/r/t FALSE LIGHT or DISCLOSURE torts
→ can NEVER be lost
3) CONDITIONAL/QUALIFIED PRIVILEGE
Generally: will arise in any situation where there is public interest to encourage ppl to speak candidly
→ ONLY APPLIES w/r/t FALSE LIGHT or DISCLOSURE torts
→ Can be lost through ABUSE: i.e. it must be made in GOOD FAITH (no priveledge for deliberate lies); and confined to RELEVANT STMTS/BE IN SCOPE
→ can also arise w/o there being a public interest but ∆’s stmts must be to defend HIS OWN actions, property, or reputation and NOT that of anyone else no matter how close ALSO there is a scope and reasonably furthering interest in defending oneself may not include a wide publication
NOTE: TRUTH, INADVERTENCE and LACK OF MALICE ARE NOT defenses
NOTE:
NY DISTINCTION
In NY, there is no “common law right to privacy”; → THIS TORT DOES NOT EXIST. However, “appropriation” is recognized and protected by STATUTE, which provides for the following defenses to prima facie appropriation…
(i) Prior written consent
(ii) A photographer exhibiting his work (unless continues after written notice of objection)
(iii) Goods or artwork containing name/picture that has been disposed of
DEFAMATION DEFENSES
What are 4 DEFENSES to DEFAMATION?
1) Consent: EXPRESS consent OR IMPLIED consent BUT incapacitated individuals (incompetents; drunks; etc) are DEEMED INCAPABLE of consent
2) Truth: where π doesn’t have to prove falsity (i.e. purely private matter),
Burden on ∆ to prove truth and if ∆ proves truth then it’s a complete defense
3) ABSOLUTE PRIVILEGE
Encompasses remarks…made during judicial proceedings (judges, lawyers, witnesses, etc)
(i) by legislators during proceedings
(ii) by witnesses, attorneys and others
during proceedings
(iii) by federal executive officials
(iv) in “compelled” broadcasts
(v) b/t spouses
→ can NEVER be lost
4) CONDITIONAL/QUALIFIED PRIVILEGE
Generally: will arise in any situation where there is public interest to encourage ppl to speak candidly
→ can be lost through ABUSE: i.e. it must be made in GOOD FAITH (no priveledge for deliberate lies); and confined to RELEVANT STMTS/BE IN SCOPE
→ can also arise w/o there being a public interest but ∆’s stmts must be to defend HIS OWN actions, property, or reputation and NOT that of anyone else no matter how close. ALSO there is a scope and reasonably furthering interest in defending oneself may not include a wide publication
INDUCING A BREACH OF CONTRACT
What are the 4 elements ofinterference w/ business relations?
1) VALID K: existence of a VALID K b/t π and a 3d party OR a valid business expectancy of π
Note: K myst not be terminable at will
2) AWARENESS: ∆’s must have KNOWLEDGE of the K (relationship / expectancy)
3) PERSUASION: intentional interference by the ∆ inducing a breach/termination of the K/expectancy
e. g. lowering the price of goods being sold to get 3rd party to breach and buy his goods
4) BREACH: There must be a breach of the contract (damages)
- ——————4 ELEMENTS————–
1) Valid K
2) AWARENESS
3) PERSUASION
4) BREACH
PRIVACY TORT: DISCLOSURE
What are the 3 elements of DISCLOSURE?
NOTE: NY distinction
1) WIDESPREAD DISSEMINATION (public disclosure)of private/confidential infoabt π
NOTE: Liability can attach even if the information disclosed was true
2) disclosurewould be highly offensive to a reasonable person
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 initially sharing this information made it be considered as 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 sufficient
NY DISTINCTION
In NY, there is no “common law right to privacy”; → THIS TORT DOES NOT EXIST. However, “appropriation” is recognized and protected by STATUTE, which provides for the following defenses to prima facie appropriation…
(i) Prior written consent
(ii) A photographer exhibiting his work (unless
continues after written notice of objection)
(iii) Goods or artwork containing name/picture that
has been disposed of
What are the 4 elements of DEFAMATION?
NOTE: NY Distinction
CHARACTERISTICS OF DEFAMATION
(i) Focused on reputation
(ii) Cause of action to redress a harm to reputation
(iii) Mostly an economic tort
1) DEFAMATORY LANGUAGE
π must show that ∆ made a DEFAMATORY statement IDENTIFYING π
DEFAMATORY = ALLEGATION OF FACT casting a negative reflection on π
MERE INSULTS NOT DEFAMATORY b/c they do not allege facts (e.g. “Bob is a son of a bitch” is not defamatory)
OPINIONS not actionable unless they appear to be a fact-based opinion.
2) OF OR CONCERNING π
IDENTIFYING: Doesn’t have to be direct citation of π name but has to be concerning A LIVING PERSON
e.g. Can say anything we want about Michael Jackson now
STATEMENT ABOUT 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
Stmt MUST BE FALSE → if stmt is TRUE, then NO c/a for defamation
BURDEN OF PROVING FALSITY: a Defamatory stmt is PRESUMED FALSE UNLESS it is a MATTER OF PUBLIC CONCERN. In that case π must PROVE FALSITY
MATTER OF PUBLIC CONCERN: SEE FLASHCARD ON TOPIC
3) PUBLICATION
Publication (intentionally OR negligently)by ∆ to a 3rd person
→ MUST be shared w/at least 1 other person than π
NO DE MINIMIS RQMT: revealing to ONE 3rd 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)
4) DAMAGE TO REPUTATION
DAMAGE to π’s reputation (type depends on type of defamation)
LIBEL: Defamatory stmt is written/taped/printed/filmed or otherwise in a PERMANENT MEDIUM: GENERAL damages are PRESUMED AND no need to prove special damages
NY DISTINCTION: If stmt does not fit into one of the Slander Pe Se categories then π must prove damages
SLANDER: Defamatory stmt is spoken
π has to PROVE special ECONOMIC DAMAGES unless it is slander per se (4 categories/5 in NY)
STIGMA OR SOCIAL HARM DOES NOT COUNT
The wider the publication the grater the damage
…[1st Am reqs] ONLY IF matter of “public concern”…
NOTE: liability for IIED for defamatory speech MUST meet the defamation stds and CANNOT exist for speech otherwise protected by the 1st Am
PRIVACY TORT: INTRUSION
What are the 2 elements ofINTRUSION upon a person’s seclusion?
NOTE: NY distinction
1) ∆’s PRYING OR INTRUDING into a PRIVATE matter
→ MUST have a REASONABLE EXPECTATION OF PRIVACY → 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
e. g. UNAUTHORIZED video surveillance, wire tap, etc.
NOTE: no need to prove special economic damages, emotional distress/anguish is sufficient
NY DISTINCTION
In NY, there is no “common law right to privacy”; → THIS TORT DOES NOT EXIST. However, “appropriation” is recognized and protected by STATUTE, which provides for the following defenses to prima facie appropriation…
(i) Prior written consent
(ii) A photographer exhibiting his work (unless continues after written notice of objection)
(iii) Goods or artwork containing name/picture that has been disposed of
PRIVILEGED INTERFERENCE W/K IS ALLOWED
When isinterference w/ business relations by ∆ privileged?
A privilege can be found if ∆…
1) ∆ interfered only with π’s prospective business rather than existing K
2) ∆ used commercially acceptable means of persuasion rather than illegal/threatening tactics
3) ∆ is a competitor of π seeking the same prospective business and used commercially accepted means of interference
4) ∆ is a fiduciary of the 3d party, responsible for giving advice
(i) Father
(ii) Financial Adviser
(iii) Attorney
(iv) Clergy
What are the 5 elements ofmalicious prosecution?
1) ∆ will have PREVIOUSLY COMMENCED a criminal or civil PROCEEDING against π
Note: Prosecutors are immune from liability
2) Suit will have been TERMINATED IN FAVOR OF π
2) Suit will have been TERMINATED B/C NO PROBABLE CAUSE
4) There must be an IMPROPER MOTIVE why the case was brought
E.g. brought case for revenge
5) π must suffer DAMAGES
SPECIAL CASE: MATTER OF PUBLIC CONCERN
What special treatment is applied to MATTERS OF PUBLIC CONCERN?
MATTER OF PUBLIC CONCERN = Newsworthy matters that affect the public in general or which may be issues subject to public debate
STATEMENT ABOUT PUBLIC OR PRIVATE π
π’s STATUS will affect if there is fault on ∆’s part
1) π has BURDEN to PROVE FALSITY
2) PUBLIC/PRIVATE Mens Rea Distinction
→ (i) If π is PUBLIC OFFICIAL/FIGURE: π has to prove malice (∆’s knowledge that stmt was false OR reckless disregard as to its truth) to get damages
→ (ii) If π is PRIVATE PERSON (AND stmt is a matter of PUBLIC CONCERN), π has to prove at least negligence as to the stmts falsity to get damages for ACTUAL INJURY
DEFAMATORY LANGUAGE: SLANDER PER SE
NY DISTINCTION
SLANDER PER SE → EXCEPTION to π having to prove Damages → Damages are presumed for statements:
(i) related to π’s BUSINESS/PROFESSION;
(ii) alleging that π committed a CRIME OF MORAL TURPITUDE (e.g. perjury, murder, fraud, embezzlement);
(iii) alleging that a female π is UNCHASTE;
(iv) alleging that π has LOATHSOME DISEASE (leprosy; or Venereal Disease)
NY DISTINCTION: there is an ADDITIONAL slander per se CATEGORY available: imputation of HOMOSEXUALITY
DEFAMATORY LANGUAGE: WHO MAY BE LIABLE FOR PUBLICATION
1) PRIMARY PUBLISHERS LIABLE (newspaper, magazine, TV station) to the same extent as the author or speaker.
→ REPEATING defamatory language gets same liability as author EVEN IF re-broadcaster states their source or says that they do not believe the defamation
1) DISTRIBUTORS/SELLERS ARE LIABLE (SECONDARY PUBLISHERS) → ONLY IF KNEW OR SHOULD HAVE KNOWN of defamatory content
INTERNET SERVICE PROVIDER DOES NOT count as secondary publisher
