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Defamation > Final Exam > Flashcards

Final Exam Flashcards

1
Q

Defamation Elements

A
  1. False and defamatory expression (defamatory meaning)
  2. Of and concerning the Plaintiff (Colloquium)
  3. Publication to a third party (Fault)
  4. Causing injury to P’s reputation (Damages)
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2
Q

Two types of False and defamatory statement

A

Libel and Slander

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3
Q

Common Law Libel

A

Common law libel is where the defamatory statement is a writing or something analogous to writing.

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4
Q

Libel Per Se

A

-Expression is clearly or obviously defamatory/ damaging to reputation on its face.
-Damages are presumed

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5
Q

Libel Per Quod

A

-Expression is innocent or ambiguous on its face but extrinsic facts make it libelous
“P is dating his high school sweetheart” → P is married
-Special / Pecuniary (Economic) Damages must be proven by P

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6
Q

Slander/Libel Per Se

A

Categories (C.L.U.B.S)
1.Crime of Moral Turpitude (Violent, serious)
2.Loathsome Disease
(STD’s, diseases acquired through socially repugnant conduct. Look for certain diseases like cancer, HIV, etc., which may or may not fall under this category)
3. Unfit for Business
(Questions P’s competence, abilities, honesty, Single Occurrence/Event not sufficient unless under extreme circumstances)
4. Sexual Deviance / Misconduct
-DAMAGES PRESUMED

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7
Q

What is defamatory? Narrow view/majority view + Lesser view

A

Narrow view/Majority view: subjects P to scorn, hatred, ridicule, contempt

Lesser view/Minority view:
-Expression lowers esteem of P in the community (Look down effect)
-DETERS others from associating w/ P (keep away effect)

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8
Q

False and Defamatory expression (Defamatory meaning) Restatement Test

A

-“Look Down” Effect
(DISCREDITS P’s character and dignity in the community)
-“Keep Away” Effect
(Undermines P’s social relations and financial standing, DETERS others from associating with P)

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9
Q

False and Defamatory expression - Perspective/Listener

A

Reasonable person standard: The complained-of language must tend to lower P in the esteem of any substantial or respectable minority, even though it may be quite a small minority.

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10
Q

Publication

A

Publication is the intentional or negligent communication of a defamatory expression to at least one person besides the plaintiff

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11
Q

Publication

A

Publication is the intentional or negligent communication of a defamatory expression to at least one person besides the plaintiff. Publication is the fault requirement for defamation and requires at least negligence.

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12
Q

Publication (fault) acts or omissions

A

Omission: Publication if D knows of the publication and fails to use reasonable care to abate the defamation
Ex. - Landlord fails to take down defamatory note about P posted in bulletin board.

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13
Q

Self Publication

A

-Publication by P where D knows communication to a 3rd party is likely (Firing P for stealing, P has to tell future employers)
OR
-P is unaware of the defamatory nature of the communication (ie. Delivers it in an envelope)

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14
Q

Publication and Believability

A

Does not matter if recipients believe it or not → still publication. May affect damages.

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15
Q

Publication and Identity of P

A

Recipients do not need to know P’s name or him personally, as long as P’s identifiable
Ex – D accuses P of being a thief in front of other people, they don’t know P personally.

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16
Q

Publication and Agency

A

Publication may be made to one’s agent (3rd person), but communication may be privileged
Ex. - Boss dictates defamatory letter to legal assistant.

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17
Q

Publication and Primary Publishers

A

People/groups that generate defamatory content are primary publishers and potentially liable.
Ex – D tells church member that clergyman is stealing church donations → Publication

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18
Q

Publication and Repeater Liability (Secondary Publishers)

A

-People/group who repeat a defamatory statement are potentially liable.
Ex. - Church member tells a reporter what D said → Publication
-Reporters of defamation are potentially liable
Ex – Reporter prints story: “according to church sources…” → Publication.

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19
Q

Single Publication Rule

A

A single communication received by two or more people simultaneously is a single publication.
-Print
Ex – A defamatory statement published in many copies of newspaper → single publication.
-Broadcasts
-Internet Posts
–Original post is a single publication and triggers the SOL
-SOL runs from first publication

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20
Q

Subsequent Editions

A

Separate publication if it results from a separate editorial edition and reaches a new audience
More likely to seem true if republished, more time to fact check since 1st ed.

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21
Q

Of and Concerning P (Colloquium)

A

The defamatory expression is of and concerning the Plaintiff and the listener connects the statement to P.
Test: Would a reasonable person identify P from the expression?

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22
Q

Factors for identifying P: Literary References

A

-Appearance
-Habits
-Occupation History
-Context (time/Place)
-Disclaimers not determinative (i.e., “This is a work of fiction.”)
Ex. Bindrim v. Mitchell -Novel’s character depicted a psychotherapist as weirdo (nude therapy), even though physical appearance was different, the uniqueness of the therapy and other factors outweighed it
Piranha 3D - Cheesy sci-fi b-movie had a character similar to “girls gone wild” founder as a drug user, etc…the court said the tone of the movie (comedy, horror) made it less believable

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23
Q

Factors for identifying P in group references

A

-Size of Group → Smaller group, more likely to ID P
-Prominence of group
-Scope of the reference
-P’s prominence within the group → is P easy to ID (“Kobe is the Lakers’ star)

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24
Q

Damages Generally

A
  1. Presumed:
    -Libel and Slander Per Se
    -Private P / Private Matter
  2. Actual / Special:
    -Libel and Slander Per Quod
    -Public Figure
    -Private Person / Public Concern
  3. Punitive:
    -Actual Malice
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25
Q

Truth defense to Defam

A

Defendant is not liable for a true statement that damages P’s reputation
Burden of Proof: D must prove that statement is true

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26
Q

Truth defense: Substantial truth

A

-The statement does not need to be literally 100% true, but rather substantially true
-The effect of the “Sting”: D must show that the sting of the statement is true / substantially the same as the truth and the effect on the reader/listener.

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27
Q

Opinion implying Fact

A

If opinion gives listener/reader a reasonable impression that there is a factual basis for the opinion = statement is actionable/may be defamatory
Ex. “I think bob has a drinking problem” = opinion vs. “I think bob has a drinking problem because I have seen him sitting on his front porch drinking beer before noon every day this week” = actionable

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28
Q

Absolute Privileges

A

Generally, absolute privileges give D the absolute right to make the defamatory expression.
-Confers complete immunity
-D has BOP to show privilege

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29
Q

Consent Privilege (absolute)

A

Actual or apparent agreement by P to publication of defamatory expression.
Scope: Must fall w/in the agreed parameters of time, place, manner, persons, purpose

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30
Q

Types of Governmental Privileges (absolute)

A

Judicial/Quasi Judicial
Legislative
Executive

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31
Q

Gov Privilege: Judical/Quasi Judicial

A

-Protects Statements made during judicial/quasi judicial proceedings
-Policy: to allow free expression, candid fact finding, and prevent self censorship.
-Persons Covered: Litigants, judges, jurors, witnesses.

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32
Q

Scope of Judicial/Quasi Judicial gov privilege

A

-Expressions that achieve the object of the litigation
-Must have a connection or logical relation to the action.
-Press conferences by attorneys outside the court room are not absolutely privileged.
-Hypo: Insurance fraud investigator questions acquaintances of P about insurance fraud AND his extramarital affairs → the questions about fraud are privileged but not the affair stuff because it was not related to the action.

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33
Q

Gov privilege: Legislative

A

-Context: Speech on the floor or in committees
-Persons Covered: Legislators, their staff, aides, witnesses, consultants. NOT lobbyists.
-Scope:
Expressions that relate/further legislative functions, speeches, hearings, testimony, reports. Committee meetings.
-Campaign Statements: Not privileged because they are not part of law making.
-Hypo: D defames opponent during campaign speech.

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34
Q

Gov Privilege: Executive

A

-Federal Officials:
The Federal Tort Claim Act and the Westfall Act gives the privilege to federal employees as long as the statement is sufficiently related to / within the scope of their job.
-State Officials: High Ranking Officials: Governor, AG, Sec. Of State, etc.

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35
Q

Gov Privilege: Defam and civil rights

A

Recognizes the privilege unless there is a deprivation of rights beyond reputation: Liberty; Property

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36
Q

Types of qualified privileges

A

-Public interest privilege
-Common Interest / defense of self / interest of others
-Fair comment privilege
-Fair and accurate report of Public proceedings

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37
Q

Qualified Privileges General Rule

A

Defendant has a conditional right to make defamatory expression, meaning the privilege is lost if it is abused

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38
Q

Qualified privilege: Public Interest

A

PUBLIC CONCERN DEFENSE: Newsworthy. Reporting a crime or matter of public concern (public concern = rights and responsibilities of the public)

39
Q

Qualified privilege: Self protection

A

D reasonably believed his own interests were in jeopardy

40
Q

Qualified privilege: Interest of others

A

TEST:
-Info affects sufficiently important interest of recipient
And
-Duty to the recipient
OR Comports to standards of decency

41
Q

Qualified privilege: Common Interest

A

circumstances would lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that facts exist which another sharing such common interest is entitled to know

Church members, Union Members, Employees, faculty, etc.

42
Q

Qualified privileges: Fair reporting/Neutral reportage

A

Fair reporting insulates news media in certain circumstances
-Matter of public concern
-Must be accurate, complete, and fair

“allows those who fairly and accurately report certain types of official/governmental action to be immune from liability for claims arising out of such reports”

43
Q

Qualified Privileges re: Interests Analysis

A

-D must have reasonable / good faith belief that the interest is in jeopardy.
-Burden of Proof on D to show the privilege
-Burden Shift: P must show that D abused the privilege.
Malice, knowledge of falsity, spite, hatred, etc.

44
Q

Report and Comment Privileges: Application

A

Apply to media reporting on PUBLIC affairs

45
Q

Fair Comment Privilege

A

PUBLIC CONCERN DEFENSE:
-Under majority view-is protected if comment was on a matter of public interest, based upon true facts and expressed honestly.
-Under the minority view, the privilege remains even if the facts were not accurate, as long as the D honestly believed the facts asserted.

46
Q

Fair Report Privilege (California)

A

Fair and True Test:
-A defamatory expression is privileged if it is a fair and accurate report of public/gov’t documents or proceedings.
-BOP: P must show that D abused the privilege (not accurate, purpose of causing harm)

47
Q

Neutral Reportage Privilege

A

-The report is made by a responsible/prominent organization about a matter of public interest/policy against a public figure or organization
-Policy: Newspapers have an interest in reporting the truth and the public has a right to know what is going on in their community/country

48
Q

Constitutional Constraints on Defam: Analysis

A

-Have to involve public officials or public figures
-D has advantage
Look at:
-Type of Speaker (Def)
-Type of Plaintiff (Public v. Private)
-Intent/Proof (Public - Malice v. Private- Negligence/reckless disregard)

49
Q

Con. Constraints: Types of Speaker(Def)

A

-Public News/Media (Protection: Highest Level)
Policy:
Provide important information + Ostensibly have professional standards of truth.
-Private D’s
(Protection: Low Level)

50
Q

Con. Constraints: Types of Plaintiffs

A

-Public Officials
-General Purpose Public Figures
-Limited Purpose Public Figures
-Involuntary Public Figures
-Private persons

51
Q

Public Officials

A

A public official has:
-Substantial responsibility over public policy/affairs
-Qualifications/ Performance important to the public
-Access to the media to defend themselves.

52
Q

Public Officials rule

A

In matters involving public officials, it needs to be shown by clear and convincing evidence that the defendant had actual malice (knowledge of the falsity or reckless disregard as to whether the matter was true or false.)
-CLEAR AND CONVINCING evidence of ACTUAL MALICE
-Presumed and punitive damages if actual injury proven
(NYT v. Sullivan)

53
Q

General purpose public figures

A

-Celebs, prominent businesspeople
-Has
1) pervasive power and influence
2)pervasive fame and notoriety
3) entire lives open to scrutiny

54
Q

Defam elements for General purpose public figures

A

-defam expression
-falsity
-clear and convincing evidence of actual malice
-presumed and punitive damages if actual injury proven

55
Q

Actual malice

A

-Knowledge of falsity OR reckless disregard of whether or not the expression is false

56
Q

Limited purpose public figure

A

-someone who has DELIBERATELY and VOLUNTARILY inserted himself into the forefront of a controversy to influence its outcome and is only a public figure in the context of that controversy.
-Scope: The expression must relate to their public persona and the controversy they are famous for.

57
Q

Involuntary public figures

A

Very little guidance on this, extremely rare per SCOTUS
Possible examples: People whose jobs are heavily regulated (Air traffic controllers) or are of high public safety concern (BP oil execs)

58
Q

Private persons and matters of public concern

A

Rule: Public concern relates to any matter of political, social, or other concern to the community.
Trigger: Matter is of public concern and the plaintiff is a private individual, the Gertz standard will be applied.

59
Q

Private persons and matters of public concern: Gertz test

A

Gertz standard:
-P has a burden to prove that the statement is false.
-Standard of care: States may determine the appropriate standard of care for the publishers that defame private individuals, but it must require some level of fault (at least negligence)
–If the standard is negligence and no greater fault is shown = actual damages awarded
–If the standard is actual malice or actual malice is shown under negligence standard = punitive damages may be available

60
Q

Private persons and private matters

A

Use common law defamation / no actual malice requirement for punitive damages

61
Q

Protected scenarios

A

Parody/Satire
Outlandish situation, parody disclaimers, exaggerated
Business Review / Survey
Based on humorous tone, hyperbole, subjective tone
Financial Assessment
Secondhand report
Investigative report

62
Q

Internet service provider liability

A

CDA 230: ISPs are not liable unless they are partially/wholly creating the content
-Must do more than slight alterations or categorization of content
-Look at whether the ISP ALTERS the MEANING of the content or provides SUBSTANTIAL contributions by how it manages the information.

63
Q

Blogger liability

A

Assumed not credible.
-Fact or opinion?
-Media defendant? Depends on following and adherence to standards of professional journalism

64
Q

Milkovich Test for whether fact or opinion

A

four factors are considered to ascertain whether, under the “totality of circumstances,” a statement is fact or opinion.
These factors are:
(1) “the specific language used”;
(2) “whether the statement is verifiable”;
(3) “the general context of the statement”; and
(4) “the broader context in which the statement appeared.”

65
Q

Procedural limits: Anti-SLAPP

A

-Permits D to challenge defamation actions as an attempt to restrict D’s 1st Amendment Rights
-BOP on P to show that the defamation action is likely to prevail on the merits

66
Q

Procedural limits: Shield Laws

A

Give defendants in defamation action protection from having to reveal their sources
Ie. a news organization does not have to reveal its source.

67
Q

Plaintiff Limits: Libel Proof Plaintiff

A

Rule: Plaintiff’s reputation is so tarnished that it can’t be damaged any further.
UNLESS
-Some aspects of P’s character are still salvageable
-Geographic scope of damage to P’s reputation in a community/the statement diminishes P’s character in a new community

68
Q

Deceased people

A

cannot be defamed, no longer have a reputational interest

69
Q

Survivors/Relatives of deceased people

A

Rule: Defamation of a dead person does not automatically defame living relatives
-The statement must directly relate to both the living and the dead.
-Look at whether “the sting” of the statement also affects the survivor(s)

70
Q

Types of privacy torts

A

1.Intrusion upon seclusion
2.False Light
3.Public Disclosure of Private True Facts
4.Right to Publicity

71
Q

Nature of privacy generally

A

People have a right to control their personal dignity and autonomy as it pertains to their homes, personal information, relationships, body, and conversations.

72
Q

Intrusion upon Seclusion Elements

A
  1. Intentional/Negligent Intrusion
    2.Into Plaintiff’s seclusion
    –REOP
  2. Highly offensive to a reasonable person
  3. damages
73
Q

Intrusion upon Seclusion: Intent

A

Desire to invade OR knowledge to a substantial certainty that privacy will be invaded
Fault is required a matter of Policy

74
Q

Intrusion upon Seclusion: Intrusion

A

-Physical entry/access to P’s personal property, mechanical recording of P
-May be achieved through agency (ie. Hiring a detective)

75
Q

Intrusion upon Seclusion: Into P’s seclusion

A

P’s Spheres of Privacy: body, places, things, conversations, activities, events, information, relationships

76
Q

Intrusion upon Seclusion: Highly offensive to reasonable person

A

Factors:
D’s status and/or abuse of authority
Motive
Degree of P’s privacy interest
Extent of Invasion
Relationship between P and D
P’s Vulnerability
Frequency of D’s conduct

77
Q

Intrusion upon Seclusion: Damages

A

Special damages must be proven, not presumed

78
Q

False Light Elements

A

-Negligent or intentional Publication by defendant
-That causes P to be viewed in a
highly offensive + false light
-Causing damages
-If newsworthy, need actual malice

79
Q

False Light: publication

A

-D makes the matter public by communicating to the public at large or a large enough number of people that substantially certain to become public knowledge.
-Defamation only requires one person

80
Q

False Light: Places P in highly offensive + false light

A

-Published matter must be false or create an innuendo that casts P in a false light
-Must be highly offensive to a reasonable person
Factors:
D’s status / abuse of authority
Motive
Nature / Degree of P’s privacy interest
Extent of Distortion
Relationship between the parties
Ps vulnerability
Frequency of D’s conduct

81
Q

False Light: Actual malice

A

IF NEWSWORTHY: BOP on P to prove that the publication was done with actual malice
Standard:
Clear and convincing evidence
Knowledge/Reckless Disregard of the falsity or false implications.

82
Q

False light: Damages

A

Privacy, reputational, emotional tranquility

83
Q

Public Disclosure of Private True Facts Elements

A

-Intentional or negligent public disclosure
-of Private True Facts
-Highly Offensive to a reasonable person
-Not Newsworthy
-causing damages

84
Q

Public Disclosure of Private True Facts: Publicity

A

Public Medium:
Presumed to be mass publication if done through the media, TV, etc.
Private Medium:
By private means but to a considerable number of people so that it is substantially likely to become public knowledge

85
Q

Public Disclosure of Private True Facts: Of Private but true facts

A

Private?
-REOP: Subjective and Objective
-Factors:
Type of P: Public figures have lesser REOP
Scope of Release
Type / Accessibility of Information
-The more intimate information, greater REOP
-The more inaccessible information, greater REOP

86
Q

Public Disclosure of Private True Facts: Highly offensive to reasonable person

A

Per the Second Restatement, the following are considered offensive
Sex
Body
Home/relationships/family issues
Health
Competence
abnormal / embarrassing past

87
Q

Public Disclosure of Private True Facts: Not newsworthy

A

Common Decency Test (2d Restatement)
-not newsworthy if it creates interest that satisfies morbid or sensational curiosity, prying for its own sake
-Newsworthy when released for public debate, education, entertainment, enlightenment
BOP: On P to show not newsworthy

88
Q

Public Disclosure of Private True Facts: When can public records be released w/out liability

A

Public records may be released when
-they were lawfully obtained
-information on a matter of public significance
-chill of free speech if release punished.
Exception: P’s physical safety harmed or threatened (Don’t want to discourage reporting of crimes)

89
Q

Right to Publicity (Misappropriation of Name/Likeness) Elements

A
  1. Use of P’s name, likeness, or identity
  2. Appropriated for D’s benefit
  3. Causing Damages
90
Q

Right to Publicity: Use of P’s name/likeness/identity

A

-distinctive voice, saying or motto, fictional character, occupation that defines P
-Stealing commercial value of another person’s personality

91
Q

Right to Publicity: Appropriation for D’s benefit

A

-D derives some benefit/commercial gain from using P’s likeness
-Can be commercial or non commercial
-D need not gain economic benefit

92
Q

Right to Publicity: Transformative use test

A

Not appropriating when Expressive or newsworthy:
-Transformative Use Test:
An artist’s work is protected by 1a against a celebrity’s right of publicity challenge if it contains significant transformative elements, or if its value is not primarily derived from the celebrity’s fame.
-If substantially new product = NOT LIABLE

93
Q

Right to Publicity: Causation

A

P must show appropriation caused damages

Defamation (1 decks)

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