Harm to Economic and Dignitary Interests

Question 1

What are the common law elements of defamation?

Answer 1

(i) Defamatory language;
(ii) Of or concerning the plaintiff;
(iii) Publication thereof by defendant to a third person;
(iv) Damage to the plaintiff’s reputation

Question 2

What two additional elements must be proven if the defamation involves a matter of public concern?

Answer 2

(I) falsity of the defamatory language; and

(ii) Fault on the part of the defendant

Question 3

What is “defamatory language”?

Answer 3

Language tending to adversely affect one’s reputation.

Question 4

What if a statement on its face can be an innuendo or inducement of defamatory statements?

Answer 4

These are not sufficient to classify as defamatory.

Question 5

Who can be defamed?

Answer 5

Any living person, defamation of a deceased person is not actionable.

Question 6

What does “of and concerning” a plaintiff mean?

Answer 6

That the defamatory statement specifically identifies or is capable of identifying the plaintiff.

Question 7

What if a defamatory statement refers to all members of a small group, may they each claim the statement is “of and concerning” him?

Answer 7

Yes.

Question 8

If a group is large, can each member claim the statement is of and concerning him?

Answer 8

No.

Question 9

What if a statement refers to some members of a small group, can a plaintiff recover?

Answer 9

Only if a reasonable person would view the statement as referring to the plaintiff.

Question 10

What is publication?

Answer 10

Communication of the statement to someone other than the plaintiff.

Question 11

What is libel? What is the consequence of liable?

Answer 11

Libel is the written or printed publication of defamatory language. The plaintiff does not need to prove special damages and general damages are presumed.

Question 12

What is slander? What is the consequence of slander?

Answer 12

Slander is spoken defamation. Plaintiff must prove special damages, unless defamation falls within slander per se categories.

Question 13

What are the slander per se categories?

Answer 13

Defamatory statements that:

(i) Adversely reflect on one’s conduct in business or profession;
(ii) One has a loathsome disease;
(iii) One is or was guilty of a crime involving moral turpitude; or
(iv) A woman was unchaste

Question 14

When is the First Amendment implicated in a defamation suit?

Answer 14

If the matter is of public concern.

Question 15

What fault must be established if the defamatory statements are about a public figure or public official?

Answer 15

That the defendant acted with malice, (e.g., knowledge of the falsity, or reckless disregard as to whether it was false). Subjective test.

Question 16

What must a private person in a matter of public concern prove, with regard to fault in a defamation case?

Answer 16

At least negligence as to the statement’s truth or falsity.

Question 17

What damages may be recovered by a private person in a matter of public concern?

Answer 17

Damages only for proved actual injury.

Question 18

What damages may be recovered by a public official or public figure?

Answer 18

Presumed damages under common law rules, and punitive where appropriate.

Question 19

What must a private person in a matter of private concern prove, with regard to fault in a defamation case?

Answer 19

No fault as to the truth or falsity of the statement need be proven.

Question 20

What damages may be recovered by a private person in a matter of private concern?

Answer 20

Presumed damages under common law, and punitives where appropriate

Question 21

What are the defenses to defamation?

Answer 21

Consent is a complete defense. Truth. Absolute privilege, qualified privilege.

Question 22

What is the absolute privilege?

Answer 22

It can never be lost. A defendant may be protected by an absolute privilege for the following: remarks made during judicial proceedings, by legislators during proceedings, by federal executive officials, in compelled broadcasts, and between spouses.

Question 23

What is the qualified privilege?

Answer 23

It can be lost through abuse. Applies in the following: reports of official proceedings, statements in the interest of the publisher–defense of one’s actions, property or reputation; statements in the interest of the recipient; statements in the common interest of the publisher and recipient.

Question 24

When may the qualified privilege be lost?

Answer 24

(i) statement not within the scope of the privilege or

(ii) it is shown that the speaker acted with malice.

Question 25

What are the four kinds of wrongs within the tort of invasion of privacy?

Answer 25

(i) Appropriation of Plaintiff’s picture or name
(ii) Intrusion into plaintiff’s affairs or seclusion
(iii) Publication of facts placing plaintiff in false light
(iv) Public disclosure of private facts about plaintiff.

Question 26

What must be shown for appropriation of plaintiff’s likeness? What is the liability?

Answer 26

Unauthorized use of plaintiffs picture or name, for defendant’s commercial advantage. Liability is limited to advertisements or promotions. Mere economic benefit to defendant by itself is not sufficient.

Question 27

What must be shown for intrusion on plaintiff’s affairs or seclusion?

Answer 27

The act of prying or intruding must be highly offensive to a reasonable person. The thing into which there is an intrusion must be private. Photographs taken in public do not constitute private.

Question 28

What must be shown for false light?

Answer 28

False light exists where one attribute 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. For liability to attach there must be publicity.

Question 29

What must be shown for public disclosure of private facts?

Answer 29

Disclosure of private information that is highly offensive to a reasonable person of ordinary sensibilities.

Question 30

What are the defenses to the tort of right of privacy?

Answer 30

Consent and defamation privilege defenses. Truth is generally not a good defense, nor is inadvertence, good faith, lack of malice.

Question 31

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

Answer 31

(i) misrepresentation of material fact
(ii) scienter (when D made the statement she knew or believed it was false or that there was no basis for the statement)
(iii) Intent to induce plaintiff to act or refrain from acting in reliance upon the misrepresentation
(iv) Causation (actual reliance);
(v) Justifiable reliance; and
(vi) Damages (P must suffer actual pecuniary loss)

Question 32

What are the elements of negligent misrepresentation?

Answer 32

(i) Misrepresentation by a defendant in a business or professional capacity;
(ii) Breach of duty toward a particular plaintiff;
(iii) Causation;
(iv) Justifiable reliance; and
(v) Damages

Question 33

What are the elements of interference with business relations?

Answer 33

(i) Existence of a valid contractual relationship between P and third party OR valid business expectancy of P;
(ii) D’s knowledge of the relationship or expectancy;
(iii) intentional interference by defendant inducing a breach or termination of the relationship or expectancy; and
(iv) Damages

Question 34

What are the elements of malicious prosecution?

Answer 34

(i) Institution of criminal proceedings against plaintiff;
(ii) Termination in plaintiff’s favor;
(iii) Absence of probable cause for prior proceedings;
(iv) Improper purpose;
(v) Damages

Prosecutors are immune from liability

Question 35

Who is immune from a malicious prosecution tort?

Answer 35

Prosecutors.

Question 36

Is there a tort of malicious prosecution for civil cases?

Answer 36

Most jurisdictions have extended the malicious prosecution action to cover civil cases.

Question 37

What are the elements of abuse of process?

Answer 37

(i) Wrongful use of process for an ulterior purpose; and

(ii) definite act or threat against plaintiff in order to accomplish an ulterior purpose.