Harm to Economic/Dignitary Interests Flashcards
DEFAMATION
1) D must make a defamatory statement
- Not mere name-calling
- Person must be alive
(2) Of or concerning the P
- Does not have to be explicitly ID’ed
2) Publication of that statement
- One person is sufficient
- Intentional publication NOT required - can be negligent
3) Damages
AFFIRMATIVE DEFENSES TO DEFAMATION
1) Consent
2) Truth
- D has burden of proof
3) Privilege
ABSOLUTE PRIVILEGES
- Flows from identity of speaker
- Can never be lost
1) Communication between spouses
2) Government officers in the conduct of official activities
- Includes lawyers, witnesses, etc.
3) Members of the media when engaged in accurate reporting of public proceedings
QUALIFIED PRIVILEGES
Flows from context where in the public interest to encourage honesty and candor
- Recognized when the recipient has an interest in the info and it is reasonable for D to make publication
- i.e. letters of recommendation, giving references, statements made to police
1) Statement made in good faith
2) Confined to matters topically relevant to the privilege
CONSTITUTIONAL DEFAMATION
2 additional elements where defamation involves a matter of PUBLIC CONCERN:
1) Falsity
2) Fault/Culpability (i.e. MALICE)
- If P is a PUBLIC figure: prove intent/recklessness (i.e. knew falsity, or reckless disregard for truth)
- If P is a PRIVATE figure: negligence is sufficient
SLANDER PER SE
Damages are PRESUMED
4 types of statements:
1) Related to P’s business or profession
2) P committed a crime of moral turpitude
3) Imputing un-chastity to a woman
4) P suffers from a loathsome disease (leprosy or VD)
NY: 5) Imputation of homosexuality
PRESUMED DAMAGES
- All instances of Libel
- Slander per se
IN NY:
Proof of damages required if libel is not defamatory on its face and does not fall in a per se category
APPROPRIATION
D makes unauthorized use of P’s name or image for a commercial advantage
**ONLY privacy tort recognized in NY by statute
INTRUSION
Invasion of P’s seclusion in a way that will be highly offensive to an average person
-MUST be in a location where you have a reasonable expectation of privacy
FALSE LIGHT
- Widespread dissemination of a major falsehood about an average person
- Need not be defamatory to be actionable (i.e. mischaracterizing one’s beliefs)
- Can recover emotional and social damages
DEFENSE: Privilege
DISCLOSURE
Widespread dissemination of confidential info about P that would be highly offensive to an average person
- Info is true, but intimate (i.e. tax return, medical record)
- Newsworthiness exception may relax liability - public desire to know
- Dual spheres of life (i.e. out of the closet but not at work)
DEFENSE: Privilege
-IN NY: Can bring claim for breach of fiduciary duty
ARE OPINIONS DEFAMATORY?
Only if they appear to be based on specific facts, and an express allegation of those facts would be defamatory
GROUP DEFAMATION
- If defamatory statements refers to ALL members of a SMALL group, each member may establish that the statement is “of and concerning” him by alleging that he is a group member
- If it is a LARGE group, NO member can prove that the statement is “of and concerning” him
4 PRIVACY TORTS
(1) Appropriation of P’s Picture or Name
(2) Intrusion P’s Affairs or Seclusion
(3) Publication of Facts Placing P In “False Light”
(4) Public Disclosure of Private Facts
INTENTIONAL MISREPRESENTATION/FRAUD
ELEMENTS
(1) Misrepresentation of a material fact
- Usually silence not enough
(2) Scienter
- Intent/knowledge of falsity
(3) Intent to Induce Reliance
(4) Causation (actual reliance)
(5) Justifiable Reliance
(6) Damages (actual pecuniary loss)
