Harm to Economic and Dignitary Interests Flashcards
Defamation (CL)
Elements: Defamatory lang; of or concerning P; publication by D to a 3rd person; and damage to P's reputation.
Defamatory Language
Def: Lang. tending to adversely impact reputation.
Opinion only actionable IF it appears to be based on specific facts & an express allegation of those facts would be defamatory.
Inducement and innuendo – P may plead add’l facts as inducement to establish defamatory meaning by innuendo.
Defamation of deceased ppl is NOT actionable.
Of or concerning the P
Def: RP would understand that the statement made refers to the P.
Pleading Colloquium- Extrinsic evidence can be used to show the statement refers to the P.
Publication
Def. & Liability
Def: Communication of defamation to 3rd person who understands it.
- may be intentional OR negligently published
- only need intent to publish, not intent to defame
*Each repetition is a separate defamation. BUT magazines and newspapers privy to Single Publication. Rule (all copies treated as on publication).
Liability:
- ->Primary publishers (TV stations, newspapers, etc.) liable to same extent as author/speaker even if source of statement is given.
- ->Secondary publishers (selling papers, playing tapes) liable only if he knows/should know of defamatory content.
- ->Internet Service Provider NOT treated as publisher when user of its service posts defamatory content.
Damage to P’s Reputation
Libel v. slander
Libel (written/printed)
- General damages presumed
- No need to prove special damages
- includes radio & TV broadcasts
Slander (spoken)
- P must prove special damages, UNLESS defamation is slander per se
- Slander per se: adversely reflect on one’s conduct in a business or profession; one has loathsome disease; one is or was guilty of a crime involving moral turpitude; or woman who’s unchaste
First Amendment Defamation
Elements: When defamation is a matter of public concern, P must prove: Defamatory lang; of or concerning P; publication by D to a 3rd person; damage to P's reputation; FALSITY; and FAULT BY D.
- NOT false, then no liability for 1st Amdt defamation!
- NOT a matter of public concern –> go to CL defamation!
- Public concern –> consider content, form, context
Fault by D in 1st Amdt Defamation
Type of fault depends on status of P.
Public official/figure or Private Person.
Defenses to Defamation
Absolute v. Qualified
Consent - complete defense. Intentional torts rules apply.
Truth - defense to matters of private concern; D has BOP
Absolute Privilege:
- ->never lost
- ->for remarks made during judicial proceedings; by legislators during proceedings (even if statement unrelated to proceeding); by federal executive officials in compelled broadcasts; and b/w spouses;
- ->D has BOP
Qualified Privilege;
- ->lost if statement NOT w/in scope of privilege; or it’s shown that speaker acted w/ actual malice
- -> D has BOP
- ->for reports of official proceedings; statements in interest of the publisher**; and statements in the common interest of the publisher & recipient
- *ex: defense of one’s actions, property, or reputation
*Mitigating factors NOT defense but may be considered on issue of damages.
Public Official/Figure
MUST prove actual malice (knowledge that statement is false; OR reckless disregard as to falsity).
*Damages are presumed for libel or slander per se IF actual malice shown.
Public Figure –> achievement of pervasive fame or notoriety OR voluntarily assumed central role in particular public controversy. (ex: celebrity such as Beyonce; high up political official, i.e. Barack; really famous local gov’t official i.e. Keisha).
IOP Causation and Damages
Invasion of P’s interest in privacy must’ve been proximately caused by D’s conduct.
NO need to prove special damages. Emotional distress and MA are sufficient damages.
IOP Defenses
Consent and defamation privilege defenses (abs; qual).
Intentional Misrepresentation (fraud, deceit)
Misrepresentation of a material past/present fact;
When D made statement D knew or believed it was false or that there was no basis for the statement;
Intent to induce P to act/refrain from acting in reliance on statement;
Actual reliance (causation);
Justifiable reliance; AND
Damages (P MUST prove actual pecuniary loss)
Negligent Misrepresentation
Misrepresentation by D in a business/professional capacity; Breach of duty toward particular P; Causation; Justifiable reliance; and Damages.
- ->Generally confined to statements made in commercial setting.
- ->Liability if reliance by particular P could be contemplated.
*foreseeability that statement will be communicated to 3rd party does NOT make D liable to 3rd party.
Interference with Business Relations
Existence of valid contractual relationship b/w P & 3rd party OR valid business expectancy of P;
D’s knowledge of relationship or expectancy;
Intentional interference by D including breach or termination of relationship or expectancy; AND
Damages.
*Privilege only if D's conduct is proper attempt to obtain business for itself or protect its interests. Considerations: (prospective v. existing) (persuasion v. illegal threatening) (competitor of P) (financial interest in 3rd party)
Wrongful Institution of Legal Proceedings
Malicious Prosecution v. Abuse of Process
Malicious Prosecution:
-institution of criminal proceedings against P;
-termination in P’s favor;
-no probable cause for prior proceedings;
-improper purpose; and
-damages
Prosecutors immune from liability
(Most states extend MP to cover civil cases too)
Abuse of Process:
- wrongful use of process for ulterior purpose; and
- definite act or threat against P to accomplish that purpose.
