Harm to Economic & Dignitary Interests

Question 1

What is defamation? What are the elements of a defamation claim?

Answer 1

(i) Defamatory language; (ii) “of or concerning” the P; (iii) Publication thereof by D to a third person; (iv) and damage to P’s reputation.

Question 2

If defamation involves a matter of public concern, what two additional elements does the Constitution require the P prove?

Answer 2

In addition to the other elements, (1) P must prove falsity of the defamatory language and (2) fault on the part of D.

Question 3

What is considered defamatory language?

Answer 3

If it tends to adversely affect the reputation of another; typically an allegation or representation of fact that reflects negatively on a person’s character and reputation (e.g. “Pete shot a man, unprovoked” or “Pete embezzled money from the companies escrow account”).

A statement of opinion is actionable only if it appears to be based on specific facts. Name calling doesn’t count as a defamatory statement (e.g. “P is a son of a bitch”).

No need to identify the P by name but can identify the person by his position or title

Question 4

Can a dead person’s estate assert a claim for defamation?

Answer 4

No, defamation doesn’t apply to dead persons. A person, therefore, can defame someone who is dead without legal consequences.

Question 5

What does the publication element of a defamation claim require?

Answer 5

D must reveal or share the statement with at least one person other than the P (because begins to chip away at the P’s reputation). Publication can be accomplished negligently, need not be on purpose.

Question 6

What is libel? Does P have to prove damage under this cause of action?

Answer 6

Defamation that is written down or otherwise permanently captured (filmed or taped).

A libel P doesn’t have to prove damage; it is presumed (effect is that no verdict directed against you if don’t prove damage).

Question 7

What is slander?

Answer 7

Spoken or oral defamation; divides into two categories: (1) Slander per se & (2) Slander not per se.

Question 8

What is required to prove slander per se?

Answer 8

Treated like libel for damage purposes, presumption of damage; any slander relating to four specified topics:

(1) Statement made regarding a person’s business or profession
(2) Statement that P committed a crime of moral turpitude (any serious crime such as fraud, murder, arson, rape, or other serious crimes like husband paid for prostitution services)
(3) Statement imputing unchastity (sexual activity before marriage) to a woman, doesn’t apply to men (e.g. Suzy had sex with her boyfriend)
(4) Statement that P suffers from a loathsome disease (e.g. leprosy or venereal disease).

Question 9

What must be proved for a slander not per se claim?

Answer 9

P must prove that there was economic harm; social harm does not count, not enough that you are kicked out of the club.

Question 10

What are the affirmative defenses available for a defamation cause of action?

Answer 10

Consent, Truth, and Privilege

Question 11

Under the affirmative defense of consent, what is express consent?

Answer 11

Explicit permission, oral or written, to the D to commit a tort; Fraud or duress negate express consent.

Question 12

Under the affirmative defense of consent, what is implied consent?

Answer 12

Custom and usage - go to a place or engage in activity where invasions are routine (e.g. go to a barber shop to get hair cut is not a battery, if a stranger on a subway tried to cut hair it is a battery; sports are good examples of custom and usage)

OR

Arising from D’s reasonable interpretation of P’s objective conduct - body language of consent (e.g dating)

Question 13

Under the affirmative defense of consent, what happens if D exceeds the scope of consent?

Answer 13

If D exceeds the scope of consent, then is liable for tort.

Question 14

Under the affirmative defense of consent, what is the role of capacity?

Answer 14

Only someone with legal capacity could give valid consent.

Question 15

What is the effect of the affirmative defense of truth for a defamation claim?

Answer 15

D can escape liability if can prove that what he said is true.

Question 16

What are the two privileges available under a defamation claim?

Answer 16

(1) Absolute privilege and (2) Qualified privilege

Question 17

Under the affirmative defense of privilege asserted for a defamation claim, what is an absolute privilege? What is it based on?

Answer 17

Based on who says it; flows from who the D is:

Spouses - Can say anything to your spouse, rule promotes marital harmony

Officers of the government in there official work - privilege covers judge, lawyers, witnesses, jurors, legislative, and executive branch members can’t be liable for defamation for anything we put in court papers, or anything said in court.

Question 18

Under the affirmative defense of privilege asserted for a defamation claim, what is an qualified privilege? What is it based on? What two conditions must D observe?

Answer 18

Based on the context of the speech, arises whenever there is a public interest in encouraging candor (recipient has an interest in the information), and it is reasonable for the defendant to make the publication of the statement.

Arises when the statement made is inaccurate; e.g. recommendations and references from former employer.

D must observe two conditions:
(1) D’s statements must be made in good faith (a reasonable, honest belief that they are correct);

(2) Comments must be confined to relevant matters

Question 19

Under the affirmative defense of qualified privilege asserted for a defamation claim, what two conditions must D observe?

Answer 19

D must observe two conditions:
(1) D’s statements must be made in good faith (a reasonable, honest belief that they are correct);

(2) Comments must be confined to relevant matters

Question 20

When dealing with matters of public concern, what is the P required to prove? What are the differences for proof when considering whether P is a public figure or a private figure?

Answer 20

(1) Falsity: Statement is presumed true and P must prove that it is false
(2) Fault: D didn’t have reasonable belief that the statement was true; kind of fault that you have to prove depends on who you are:

Public figure - D made statements with knowledge of falsity, malice, or reckless disregard of its accuracy

Private figure - P only need show that D made statements negligently

Question 21

What are the four wrongs included under the tort of invasion of right to privacy?

Answer 21

(1) Appropriation
(2) Intrusion
(3) False Light
(4) Disclosure

Question 22

What defenses are available for an invasion of right to privacy cause of action?

Answer 22

The defense of consent applies to all invasion of right to privacy claims.

Defamation privileges (absolute and qualified) will defeat a claim of false light and disclosure

Truth generally is not a good defense; nor is inadvertence, good faith, or lack of malice.

Question 23

Under the invasion of right to privacy wrongs, what is appropriation?

Answer 23

The wrong of appropriation occurs when D uses P’s name or picture for a commercial purpose (typically advertisements or promotions of products or services) without the consent (authorization) of the P.

Newsworthy limitation, e.g. the WaPost can post a picture of Tom Brady.

Exam caution: Everyone has this cause of action, not just celebrities.

Question 24

Under the invasion of right to privacy wrongs, what is intrusion?

Answer 24

Intrusion on P’s affairs or seclusion is a core privacy tort. Specifically, it is an invasion of the P’s physical seclusion (prying or intruding) in a way that is highly offensive to the average person (e.g. wiretapping or “Peeping Tom”).

Exam caution: Must be in a place where have a reasonable expectation of privacy (e.g. pictures taken in a public place are not actionable). Intrusion must be private. Pics taken in public places are not actionable.

Question 25

Under the invasion of right to privacy wrongs, what is false light?

Answer 25

False light is a wrong that exists where there is widespread dissemination of a major falsehood (spreading lies; attributing to P views he does not hold or actions he did not take) about a person that is highly offensive to a reasonable person under the circumstances.

Exam caution: This overlaps defamation, but is broader than it. Different damages for each; for defamation must prove economic harm, in false light claim get damages for social harm. Not universally recognized, but still a majority doctrine. Least heavily tested of the right to privacy.

Question 26

Under the invasion of right to privacy wrongs, what is disclosure? Are there any limitations?

Answer 26

Public disclosure of private facts about P is a wrong that involves widespread dissemination about confidential/private information that is highly offensive to the average person. (e.g. dissemination of medical, academic, or financial records);

There is a newsworthy limitation, e.g. with celebrities their confidential/private information is always disclosed and that is okay.

Exam caution: It must be truly private information.