Harm to Economic & Dignitary Interests & Privacy Flashcards
1
Q
Harm to Economic & Dignitary Interests & Privacy COAs
A
- Defamation
- Invasion to Right of Privacy
- Misrepresentation
- Interference With Business Relations
- Wrongful Institution of Legal Proceedings
2
Q
COA for Defamation
A
- The D must make a defamatory statement that identifies the P
- D must publish the defamatory statement
- There must be Damage
3
Q
Defamatory statement that identifies the P
A
- Something is defamatory if it tends to adversely effect reputation
- Usually a statement made in a factual nature the reflects negatively on a trait of character
- Name calling is not a defamatory statement
- Can identify P in anyway it can be understood as the P
- P has to be alive when the statement is made
4
Q
Actionability of a Defamatory v Actionability of Opinion Statement
A
- Defamatory statement generally must be a statement of factto be actionable.
- A statement of opinion may be actionable if it appears to be based on specific facts and an express allegation of those facts would be defamatory
- Whether a publish statement is one of “fact” or “opinion” dpeends on the circumstances surrounding the publication and the nature of the words used.
- The broader the language - the less likely it will be interpreted as a statement of fact or opinion.
- A statement of opinion is not actionable if it is not readily capable of being proven as true of false
5
Q
publication of a defamatory statement
A
- Publication is anything made public (anyone other than P), not said privately
- Element is satisfied as long as D has shared statement with 1 person other than the P
- The more people told - the greater the damage and therefore the greater the recovery
- Publication does not need to be deliberate - accidental or negligent publication is sufficient
6
Q
Element of Damage for Defamation depends on:
A
- Libel Cases
- Slander
7
Q
Damage in Libel Cases
A
- Underlying defamatory statement was written down or memorialized
- P does not have to prove damage - presumption of damage
- Radio and TV broadcasts are being treated as libel
8
Q
Damage in Slander Cases
A
- Defamatory statement was oral or spoken in nature
- Has to actually be proven
- 4 types of slander, called slander per se which gives P a presumption of damage rather than having to prove actual damage
9
Q
4 types of Slander
A
- Relating to business or profession
- Statement saying P has committed a serious crime - a crime of moral turpitude
- Any crime with a component of dishonesty or serious violence
- Statement imputing un-chastity to a woman
- This is about virginity - the statement saying they had sex is slander per se, not talking about anything short of sex
- Statement that the P suffers from a loathsome disease
- Leprosy
- Venereal Disease
- Ex: Syphilis
10
Q
Recovery for Defamation
A
- Cannot recover from social harm
- Can recover for economic harm
11
Q
Group Defamation
A
- Small group and defamitory statement refers to all members = each member may establish the statement concerns him
- large group = no one can prove it is concerning him
- if statement refers to some members of a small group, P can recover if a reasonable person would view the statement as referring to the P
12
Q
Defenses to Defamation
A
- Consent
- Truth
- Privilege
13
Q
Types of Privilage under Defamtiation Defense
A
- Absolute Privilage
- Qualifying Privilige
14
Q
Types of Absolute Privalge Defense to Defamation
A
- Spouses
- Spouses communicating with each other cannot be found for defamation, even if disclosure to the spouse is a publication
- Officers of the Government in the conduct of their official duties (of all 3 branches)
- In judicial realm, lawyers and witnesses are covered by the privilege if in the scope of their official duties
15
Q
What is the Qualifying Privilage Defense to Defamation and when does it arise?
A
- Recommendations
- People making recommendations can make candid disclosure without worrying about being sued for defamation
- Statements to police
16
Q
Rules for the Qualifiying Privilage Defense to Defamation
A
- You have got to make the statement with a reasonable and good faith belief the statement is actually correct
- You have to confine yourself to matter that is relevant to the subject at hand
17
Q
Burdens of Proof for Qualifying Privilages
A
- D bears BoP to establish the privilage and proving it exists
- If D establishes it, P bears burden of proving the privilage has been lost through abuse
- A qualified privalage may be lost through abuse (npt within scope or made with malice)
18
Q
Matters of public concern (something newsworthy where there is widespread interest)
A
Must prove Actual Malice
19
Q
Actual Malice
A
- Knowledge the statement was false; or
- Reckless Disregard as to whether it was false
This is a subjective test. Ds spite will not be enough to constitute malice, Deliberately changing a quotation may constitute malice if the alteration causes material change in the meaning conveyed by the quotation.
20
Q
Damages for Public Figure or Official
A
Presumed damages under CL rules (and punative damages where appropriate)
21
Q
Private Person if Matter is of Public Concern
A
- P must prove negligence of falsity or truth
22
Q
Damages for Private Person of Public Concern
A
Damages only for proved “actual injury” (if P proves actual malice, presumed and punative damages may be available)
23
Q
Matter of Private Concern
A
No fault requirement
24
Q
Privacy COAs
A
- Appropriation of Ps Picture or Name
- Intrusion on Ps Affairs or Seclusion
- Publication of Facts Placing P in False Light
- Public Disclosure of Private Facts About P
25
Appropriation of Ps picture or name
* D uses Ps name or image for commercial purpose
* Usually advertising, packaging or trademark
* Liability os generally limited to ads and promos
* Exam Caution
* Newsworthiness Exception
* Sports Illustrated putting Tom Brady on Cover
* Claim is Not limited to celebrities
* Does not need to be offensive
26
Intrusion on Ps Affairs or Seclusion
* Invasion of Ps physical seclusion in a way that would be highly offensive to an average person
* Ex: Wiretapping, peeping or listening through the keyhole
* Exam Trick
* Have to be in a place where you have REOP
* Ex: Your home
27
False Light
* Wide spread dissemination of a material falsehood about a P that would be highly offensive to an average person (false gossip)
* Ex: inadvertent juxtapositions that suggest something inaccurate
* Ex: taking a picture in a way to make it look like a politician is leaving a brothel
* Exam trick
* False light overlaps with Defamation
* Must prove actual malice if of public concern
* You can sustain both COA, but not always
28
Public Disclosure of Private Facts about P
* A wide spread dissemination of confidential information about the plaintiff that is highly offensive to the average person (true gossip)
* Ex: Disclosure of medical records
* Exam Trick:
* Newsworthiness Exception
* If newsworthy, not actionable
* Ex: Investigative journalism
29
The Extent of the Right of Privacy
1. right of privacy is a personal right and does not extend to members of a family
2. does not survive after the death of the P
3. not assignable
4. not applicable to corporation
30
Privacy COA Defenses
1. Consent
1. Express
2. Or implied
2. Absolute and qualified privilege defeat:
1. False light
2. And disclosur
31
Types of Misrepresentation
1. Intentional Misrepresentation
2. Negligent Misrepresentation
32
Intentional Misrepresentation COA
1. **Misrepresentation** of a material past or present fact
2. **Scienter** - she knew or believed it was false or that there was no basis for the statement
3. **Intent** to induce P to act or refrain from acting in reliance upon misrepresentation
4. **Causation** (actual reliance)
5. **Justifiable Reliance**; and
6. **Damages** (P must suffer actual pecuniary loss)
33
Is there a General Duty to Disclose Material Fact under Intentional Misrepresentation?
No
34
When there a General Duty to Disclose Material Fact under Intentional Misrepresentation?
1. D stands in a fiduciary relationship to the P
2. D is selling property to P and knows that the P is unaware of, or cannot reasonably discover, material info about the transaction; or
3. D has spoken and her utternance decieves the P
Physical concealment of a material fact may also constitute a misrepresentation.
35
3rd Party Reliance on Intentional Misrepresentation
D will be liable if he could reasonably foresee that the 3rd party would so rely
36
Reliance on Opion of Intentional Misrepresentation
Relaiance is only justifiable on representations of fact. Reliance on opinion is justifiable only if the D offering the opinion has superior knowledge of the subject matter.
37
Negligent Misrepresentation PFC
1. Misrepresentation by D in a business or professional capacity
2. Breach of duty owed toward the P
3. Causation
4. Justifiable reliance; and
5. Damages
This is usually made in the commercial setting
38
Interference with Business Relations
1. valid contractual relationship between P and a 3rd party or valid business expectancy of P
2. Ds knowledge of the relationship or expectancy
3. intentional interference by D inducing a breach or termination of the relationship or expectancy; and
4. damages
39
Privilages for Interference with Business Relations
Ds conduct may be privilaged if there was a proper attempt to obtain business for itself or protect its interests. A privilage is more likely to be found if D:
1. interfered with prospective business rather than existing K
2. used commercially acceptable means of persuation rather than illegal or threatening actions
3. is a competitor of P seeking the same prospective customers; or
4. has a financial interest in or responsibility for the 3rd party, or is responding to the 3rd party's request for business advice
40
Types of Wrongful Institution of Legal Proceedings
1. Malicious Prosecution
2. Abuse of Process
41
Malicious Prosecution PFC
1. Institution of criminal proceeding against P (like filing a complaint with police)
2. termination in Ps favor
3. absence of probable cause
4. improper purpose
5. damage
Prosecutors are immune from liability
Malicious Prosecution extends to actions over civil cases in some jurisdictions
42
Abuse of Process PFC
1. wrongful use for ulterior purpose
2. definate act or threat against P in order to accomplish ulterior purpose
