Harm To Economic And Dignitary Interests

Question 1

Harm to economic and dignitary interests

Answer 1

Defamation; Invasion of Right to Privacy; Misrepresentation; Interference With Business Relations.

Question 2

Defamation

Answer 2

Redresses Injury to reputation**
PFC:
1) Defamatory Statement about this Plaintiff
2) Publication
3)Damage to P's Reputation
And IF the First Amendment applies:
4) Falsity
5)Fault

Question 3

Defamation:

1) Defamatory Statement about this Plaintiff

Answer 3

Statement that injures P’s reputation that is of fact. Name calling not enough. And is about this plaintiff: must be reasonably understood to be about P.

Question 4

Defamation:

2) Publication

Answer 4

1) Must be a communication to a third person.
2) Communication may either be intentionally or negligently made.
Negligent communication test: Was it reasonable to expect others would overhear it?
3) Third person must be capable of understanding the defamatory content.

Question 5

Defamation:

3) Damage to P’s Reputation

Answer 5

Categories:

1) Libel: written or broadcast–damage presumed.
2) Slander: spoken– P must prove special (money) damages
3) Slander per se: Slander regarded as particularly devastating to reputation–damage is presumed.

Question 6

3) Damage to P’s Reputation

(iii) Slander per se

Answer 6

(i) Business or Profession
(ii) Crime involving moral turpitude
(iii) Loathsome disease (leprosy and venereal disease).
(iv) Imputing unchastity to woman**

Question 7

Defenses to Defamation

Answer 7

I. Consent – same as IT
II. Truth (unless First Amendment)
III. Absolute and Qualified Privileges.

Question 8

Defenses to Defamation

III. Absolute and Qualified Privileges

Answer 8

Absolute: cannot be lost– (i) cmns between spouses; (ii) three governmental branches (judicial most tested anything in course of litigation is privileged).
Qualified: can be lost if abused (think of reference letter example– it is privileged unless person abuses it).

Question 9

When is First Amendment at issue?

Answer 9

When the matter is of public concern.

IF First Amendment applies, we:
(i)add two prima facie requirements (false and fault), and (ii) subtract one defense (truth).

Question 10

If First Amendment Applies–PFC Reqs

Answer 10

1) Plaintiff must prove statement was false. BOP is shifted from D to P to prove falsity. (subtract defense of truth).
2) Plaintiff must prove defendant was at fault: (i)Public figure P: must prove either intentional or reckless tortious conduct.
(ii) private person P: only has to prove negligent tortious conduct. Can assert others tho.

Question 11

“Actual Malice” Test

Answer 11

Statement was made either (i) knowing it was false, or (ii) with reckless disregard as to its truth or falsity.

Question 12

Bar Exam Note

Answer 12

If P is a public figure assume that matter is one of public concern. (first amendment applies).

Question 13

Invasion of Privacy:

Branch One

Answer 13

Appropriation by D of P’s Name or Picture for D’s commercial Advantage
Note: Commercial advantage is limited to the promotion of goods or services.

Question 14

Invasion of Privacy: Branch Two

Answer 14

Intrusion By Defendant Into P’s Privacy or Seclusion.
PFC req: D’s conduct must be highly offensive to a reasonable person.
P must be in a place where she has some expectation of privacy (but still consider intentional infliction of emotional distress-if it fits).

Question 15

Invasion of Privacy: Branch Three

Answer 15

Publication of Facts Placing P in a “False Light”
PFC req: D’s conduct must be highly offensive to a reasonable person. Reqs Publication: wide dissemination.
NOTE: Actual malice test: applies where matter is in the public interest and a public figure is involved. P should lose. Too hard to prove thats why.

Question 16

Invasion of Privacy: Branch Four

Answer 16

Publication of Private Facts about P
PFC req: D’s conduct must be highly offensive to a reasonable person. Reqs Publication: wide dissemination.
Statement is TRUE.
Bar Hypo–usually public place–not private fact!

Question 17

Defenses to Invasion of Privacy

Answer 17

1) Consent– same analysis as Intentional Tort

2) The Defamation Privileges (qualified and absolute)– apply to the publication branches.

Question 18

Four Branches of Invasion of Privacy

Answer 18

1) Appropriation by D of P’s Name or Picture for D’s commercial Advantage
2) Intrusion By Defendant Into P’s Privacy or Seclusion.
3) Publication of Facts Placing P in a “False Light”
4) Publication of Private Facts about P

Question 19

Misrepresentation

Answer 19

1) Intentional Misrepresentation

2) Negligent Misrepresentation

Question 20

Misrepresentation: Intentional Misrep

Answer 20

PFC:
1. Misrep of FACT not opinion unless made by someone with superior skill in area (bc of justifiable reliance). Silence is NOT enough–one must affirmative misspeak.
2. Scienter: malice–> statement made either knowing it was false or with reckless disregard to truth or falsity.
3. Intent to induce reliance.
4. Justifiable Reliance– note: no duty to investigate to show reliance is justifiable.
5/6. Causation/Damages

Question 21

Misrepresentation: Negligent Misrep**

Answer 21

PFC
1. Misrep of Fact
2. Negligently
3. Justifiable Reliance
4. Can Only be used in Commercial Setting.
5/6 Causation Damages

Question 22

Interference With Business Relations

Answer 22

PFC:

1. Valid Relationship Between Plaintiff and Third Person. Existing or prospective (easier for P to win if existing)
2. D’s Knowledge of Relationship
3. Intentional Interference–neg. not enough
4. Damage. eg. losing client/money.

Question 23

Interference With Business Relations: Defenses

Answer 23

1. Privileges–> question of fact
   (i) D’s persuasion conduct: the harsher the conduct the harder to get privilege.
   (ii) Relationship between parties
   a) P and D–> are they competitors-if so then competitors privilege to cover prospective relationships.
   b) D and Third person: are they close relatives, is D bus advisor, lawyer, etc.?

Question 24

KANSAS: Defamation (addition to above)

*damage to P’s reputation

Answer 24

In KS, the CL distinctions between general (presumed) damages and special damages are abolished. In all defamation actions, P must ALLEGE AND PROVE ACTUAL DAMAGES, regardless of whether the defamation is libel or slander, and regardless of the media or non-media nature of the D.

Question 25

KANSAS: Defamation

*Matters of purely private concern

Answer 25

In KS, private Ps need to prove at least negligence in all defamation cases, whether the statement is a matter of public concern or purely private concern.
Punitive damages can only be recovered if MALICE is established.
(public figures are still subject to the constitutional requirement that they prove “malice”)

Question 26

KANSAS: Invasion of Right to Privacy

* Appropriation of P’s picture or name

Answer 26

Noncommercial publication of matters of public interest by a newspaper is privileged and now subject to an invasion of privacy claim of misappropriation, even though the paper is published to make a profit.

Question 27

KANSAS: Invasion of Right to Privacy

* Publication of Facts Placing P in False Light

Answer 27

To be actionable, a false statement must be given widespread publicity likely to reach the community at large.

Question 28

KANSAS: Interference with Business Relations

*Privileges

Answer 28

Where the allegation of interference with business relations is based on alleged defamatory statements made by a former employer to prospective employer, the communication is subjected to a qualified privilege that requires the P to prove actual malice by the D.
*Majority defines malice in this case to be “actual evil-mindedness or specific intent to injure” rather than merely knowledge of falsity or reckless disregard for truth.

Question 29

KANSAS: Retaliatory or Wrongful Discharge

Answer 29

An action for retaliatory or wrongful discharge exists when an employer discharges a terminable, at will employee for a reason that contravenes some strong public policy or in retaliation for the employee’s exercise of a right supported by a strong public policy.

• Ex. exercise of right: KS, a retaliatory discharge action is allowed where n employee is fired for filing a worker’s compensation claim * same with demotion if WC claim
• Ex. contravention of strong PP: KS has also recognized a”whistle blower” exception in which a wrongful discharge action is allowed where EE is fired for good faith reporting of criminal activities to the authorities or to in-house management.