Harm to Economic and Dignitary Interests Flashcards
What are the common law elements of defamation?
(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
What two additional elements must be proven if the defamation involves a matter of public concern?
(I) falsity of the defamatory language; and
(ii) Fault on the part of the defendant
What is “defamatory language”?
Language tending to adversely affect one’s reputation.
What if a statement on its face can be an innuendo or inducement of defamatory statements?
These are not sufficient to classify as defamatory.
Who can be defamed?
Any living person, defamation of a deceased person is not actionable.
What does “of and concerning” a plaintiff mean?
That the defamatory statement specifically identifies or is capable of identifying the plaintiff.
What if a defamatory statement refers to all members of a small group, may they each claim the statement is “of and concerning” him?
Yes.
If a group is large, can each member claim the statement is of and concerning him?
No.
What if a statement refers to some members of a small group, can a plaintiff recover?
Only if a reasonable person would view the statement as referring to the plaintiff.
What is publication?
Communication of the statement to someone other than the plaintiff.
What is libel? What is the consequence of liable?
Libel is the written or printed publication of defamatory language. The plaintiff does not need to prove special damages and general damages are presumed.
What is slander? What is the consequence of slander?
Slander is spoken defamation. Plaintiff must prove special damages, unless defamation falls within slander per se categories.
What are the slander per se categories?
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
When is the First Amendment implicated in a defamation suit?
If the matter is of public concern.
What fault must be established if the defamatory statements are about a public figure or public official?
That the defendant acted with malice, (e.g., knowledge of the falsity, or reckless disregard as to whether it was false). Subjective test.
What must a private person in a matter of public concern prove, with regard to fault in a defamation case?
At least negligence as to the statement’s truth or falsity.
What damages may be recovered by a private person in a matter of public concern?
Damages only for proved actual injury.
What damages may be recovered by a public official or public figure?
Presumed damages under common law rules, and punitive where appropriate.
What must a private person in a matter of private concern prove, with regard to fault in a defamation case?
No fault as to the truth or falsity of the statement need be proven.
What damages may be recovered by a private person in a matter of private concern?
Presumed damages under common law, and punitives where appropriate
What are the defenses to defamation?
Consent is a complete defense. Truth. Absolute privilege, qualified privilege.
What is the absolute privilege?
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.
What is the qualified privilege?
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.
When may the qualified privilege be lost?
(i) statement not within the scope of the privilege or
(ii) it is shown that the speaker acted with malice.
What are the four kinds of wrongs within the tort of invasion of privacy?
(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.
What must be shown for appropriation of plaintiff’s likeness? What is the liability?
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.
What must be shown for intrusion on plaintiff’s affairs or seclusion?
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.
What must be shown for false light?
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.
What must be shown for public disclosure of private facts?
Disclosure of private information that is highly offensive to a reasonable person of ordinary sensibilities.
What are the defenses to the tort of right of privacy?
Consent and defamation privilege defenses. Truth is generally not a good defense, nor is inadvertence, good faith, lack of malice.
What are the elements of intentional misrepresentation? (Fraud, deceit)
(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)
What are the elements of negligent misrepresentation?
(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
What are the elements of interference with business relations?
(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
What are the elements of malicious prosecution?
(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
Who is immune from a malicious prosecution tort?
Prosecutors.
Is there a tort of malicious prosecution for civil cases?
Most jurisdictions have extended the malicious prosecution action to cover civil cases.
What are the elements of abuse of process?
(i) Wrongful use of process for an ulterior purpose; and
(ii) definite act or threat against plaintiff in order to accomplish an ulterior purpose.
