Harm to Economic and Dignitary Interests

Question 1

What are the elements of defamation?

Answer 1

(1) Defamatory language
(2) “Of or concerning” the plaintiff
(3) Published by the defendant to a third person
And, when the plaintiff is a public figure or the topic is a matter of public concern (i.e., where constitutional limitations are in play):
(4) Falsity
(5) Fault

Question 2

What constitutes defamatory language?

Answer 2

Language that tends to adversely affect the plaintiff’s reputation. May be direct or indirect, may be defamatory on its face or may be defamatory once extrinsic facts are proven.

Question 3

When is a statement of opinion defamatory?

Answer 3

Though a statement of fact may always be defamatory, a statement of opinion is actionable only if based on/implying specific facts, express allegation of which would be defamatory.

Question 4

Who can be defamed?

Answer 4

Any living person (cannot defame the dead) and to a limited extent corporate entities.

Question 5

When is defamatory language aimed at a group rather than an individual defamatory?

Answer 5

If the defamatory language refers to all members of a small group, each member may assert it was “of or concerning them by proving group membership.

Where it refers to some members of a small group, the plaintiff may recover where a reasonable person would view the statement as referring to them.

Reference to all members of a large group can never be groups for defamation.

Question 6

What is publication for purposes of defamation?

Answer 6

Publication occurs when the defamatory language is communicated to a third person who understood it.

Question 7

What intent is required in ordinary defamation suits (those not requiring actual malice)?

Answer 7

The intent to publish the statement rather than the intent to defame.

Question 8

What is the effect of repetition of a defamatory statement?

Answer 8

General rule: Every repetition constitutes a new instance of defamation (and if repeated by a new person, they become subject to liability).

Exception: the “single publication” rule states that all copies of a newspaper, magazine or book edition constitutes a single publication (which occurs when the finished product is released for sale). Damages are calculated as to the total effect on all readers.

Question 9

Who may be liable for defamation?

Answer 9

The primary publisher (extending to each individual taking part in the publication) and the republishers (everyone who repeats the original publisher’s defamatory statement regardless of whether they make it clear they do not believe it or credit the source). A secondary publisher responsible for disseminating materials (newspaper vendor, etc) is only liable If they know or should know the content is defamatory. Republication may expand the primary publisher’s liability if they intended republication or if it was reasonably foreseeable.

Question 10

What types of damages are potentially available on a defamation claim?

Answer 10

General damages are presumed by law and need not be proven (available for libel and for slander per se).

Specific damages require the plaintiff prove pecuniary loss (required for all slander unless per se).

Question 11

What is libel?

Answer 11

A defamatory statement recorded in writing or other permanent form.

Question 12

What are the damages available for libel?

Answer 12

The plaintiff may obtain general damages, meaning they do not have to prove them. A minority position in the courts is that damages are presumed only for facially libelous statements (per se) and special damages are required for libel requiring extrinsic facts to establish defamatory nature (per quod).

Question 13

What is slander?

Answer 13

Spoken defamation (in less physical, permanent form than libel). Note: if repeated in recorded/written form, the repetition will be libel.

Question 14

What is slander per se?

Answer 14

Four categories of slander constitute slander per se:

(1) A defamatory statement adversely reflecting on plaintiff’s business, trade or professional abilities.
(2) A statement that the plaintiff has a “loathsome disease” (historically limited to leprosy and STDs).
(3) A statement that the plaintiff committed a crime of moral turpitude (a lot of crimes).
(4) A statement imputing unchastity to a woman.

Question 15

What damages are available for slander?

Answer 15

For slander per se, the plaintiff need not prove damages but for all other slander, they must prove special damages.

Question 16

When must falsity be proven?

Answer 16

Falsity is generally presumed, but must be proven as part of the plaintiff’s case if it is a category of case (public officials/figures/matters of public concern) where the plaintiff also needs to show fault.

Question 17

What is actual malice?

Answer 17

(1) Knowledge that the statement was false, or
(2) reckless disregard as to its truth or falsity (subjectively analyzed)
(NYT v. Sullivan)

Question 18

When must the plaintiff prove actual malice?

Answer 18

If the plaintiff is a public official or a public figure (1A limitation).

Question 19

Who constitutes a public figure?

Answer 19

(1) A celebrity (achieved such pervasive fame and notoriety that they are a public figure for all purposes and contexts)
(2) Where someone voluntarily assumes a central role in a public controversy they become a public figure for that set of issues

Question 20

What must a plaintiff prove if they are a private plaintiff but the statement is a matter of public concern?

Answer 20

Where this is the case the plaintiff is restricted by a requirement that they prove fault (the defendant must at least have been negligent as to the truth or falsity of the statement).

Question 21

What damages may a private plaintiff obtain if the defendant’s statement is a matter of public concern?

Answer 21

Plaintiff is limited to recovering damages for actual injury (no punitive damages) unless actual malice is proven.

Question 22

What is a matter of public concern?

Answer 22

Look to the content, form, and context of the publication.

Question 23

What are the defenses to defamation?

Answer 23

Consent
Truth (where plaintiff is not required to prove falsity, truth is an affirmative defense)
Absolute (unaffected by a showing of abuse/actual malice) or qualified privilege (lost if shown that there was abuse/actual malice)

Question 24

When may someone assert an absolute privilege defense to defamation?

Answer 24

All statements made in judicial proceedings by the judge, jury, counsel, witnesses, and parties
All remarks by legislators during legislative proceedings
All remarks by executive officials in exercising the function of office (must have reasonable relationship to executive matter at hand)
A broadcaster/publisher compelled to allow a speaker the use of their platform
Communication between spouses

Question 25

When may someone assert a qualified privilege against defamation?

Answer 25

Qualified privileges are lost through abuse/actual malice. Applicable to:

(1) Reports of public proceedings (inaccurate reports not excused)
(2) Statements made to someone who will take official action (e.g., statement to parole board about prisoner)
(3) Statements made in the course of a critique of public interest
(4) Statement made to defend oneself
(5) Statement made reasonably to someone with an interest in the information or where publisher and recipient have a common interest

Question 26

What are the four types of invasion of privacy?

Answer 26

(1) Appropriation of the plaintiff’s picture or name for commercial advantage
(2) Intrusion on the plaintiff’s affairs or seclusion
(3) Publication of facts placing the plaintiff in a false light
(4) Public disclosure of private facts

Question 27

What are the elements of a prima facie case of appropriation?

Answer 27

Unauthorized use of the plaintiff’s picture or name for the defendant’s commercial advantage (usually limited to use in advertising)

Question 28

What are the elements of intrusion on plaintiff’s affairs or seclusion?

Answer 28

(1) An act of prying or intruding on plaintiff’s affairs or seclusion
(2) That would be highly offensive to a reasonable person
(3) The intrusion was on something within the plaintiff’s private domain

Question 29

What are the elements of false light?

Answer 29

(1) Publication of facts about the plaintiff placing them in a false light (attributing to them actions they did not take or views they do not hold) in the public eye (requires publicity/more than publication in the defamation sense)
(2) Highly offensive to a reasonable person under the circumstances
(3) If the matter is of public interest – actual malice

Question 30

What are the elements of public disclosure of private facts?

Answer 30

(1) Publication or public disclosure of private information about the plaintiff. (May be true information.)
(2) Matter is such that disclosure of it would be highly offensive to a reasonable person.
(3) if it is on a matter of public interest, the plaintiff must also prove actual malice

Question 31

What are the defenses to invasion of privacy?

Answer 31

Consent and the same absolute and qualified privileges as are applicable too defamation.

Question 32

What are the elements of fraud?

Answer 32

(1) Misrepresentation of a material fact
(2) Scienter (knows or is in reckless disregard as to falsity)
(3) Intent to induce plaintiff’s reliance
(4) Causation
(5) Justifiable reliance by the plaintiff on the misrepresentation
(6) Damages (must show actual monetary loss)

Question 33

What is the effect of failure to disclose a material fact for purposes of a fraud claim?

Answer 33

General rule: no affirmative duty to disclose material facts

Exceptions:

(1) Where the defendant is in a fiduciary relationship with the plaintiff
(2) Where the defendant is selling real property and knows the plaintiff is unaware of and won’t discover material information about the transaction
(3) Where the defendant’s words have deceived the plaintiff, there is a duty to correct
(4) Where the defendant has actively concealed a material fact

Question 34

What are the exceptions to the requirement that the defendant to a fraud claim must have intended to induce the plaintiff’s reliance?

Answer 34

(1) the misrepresentation is a continuous deception (e.g., misrepresentation on a product label) or
(2) the reliance is the reasonably foreseeable reliance of a third party

Question 35

When is reliance justifiable in a fraud claim?

Answer 35

Reliance on a statement of fact is nearly always justified, unless it was obviously false. There is no duty to investigate the veracity of a statement of fact.

Reliance on a statement of opinion is rarely justifiable unless the defendant possesses superior knowledge.

A statement about future events Is usually considered an opinion statements, unless it is characterizable as a statement of present intent.

Question 36

What are the elements of negligent misrepresentation?

Answer 36

(1) Misrepresentation in a business or professional capacity
(2) breach of duty to the plaintiff
(3) causation
(4) justifiable reliance
(5) damages

Question 37

What are the elements of interference with business relations?

Answer 37

(1) A valid contractual relationship or valid business expectancy
(2) Defendant knows of relationship or expectancy
(3) Intentional interference inducing breach or termination
(4) Damages

Question 38

What are the elements of malicious prosecution?

Answer 38

(1) Institution of criminal proceedings against plaintiff. For example, filing a police report would be sufficient, but it is not enough to just give info to a prosecutor. (Many jurisdictions have extended this tort to civil cases)
(2) Termination of proceeding in favor of plaintiff
(3) Absence of probable cause
(4) Improper purpose/malice
(5) Damages

Question 39

What are the elements of abuse of process?

Answer 39

(1) the wrongful use of process for an ulterior purpose, and
(2) some definite act or threat against plaintiff to accomplish that purpose
[not applicable where the defendant maliciously uses machinery of law for the immediate purpose for which it is designed]