Invasion of Privacy and other torts

Question 1

Invasion of privacy

Answer 1

I FLAP (Intrusion, False Light, Appropriation, Private facts)

1. Applies only to individuals, terminates upon death
   • Intrusion upon seclusion—D’s act of intrusion into P’s private affairs, objectionable to a reasonable person (no publication required)
   • False light—publication of facts about P or attributing views/actions to P that place him in false light objectionable to a reasonable person under circumstances; truth not always a defense; in matters of public interest, P must show malice
   • Misappropriation—unauthorized use of P’s picture or name for D’s advantage; lack of consent; injury (some states allow action to survive death)
   • Public disclosure of private facts—public disclosure of private facts (even if true) about P that would be highly offensive to a reasonable person and is not of legitimate concern to the public; in tension with First Amendment—disfavored tort
2. Damages—proof of emotional/mental distress enough, special damages not required
3. Defenses—Absolute/qualified privilege for false light/public disclosure; consent applies to all types of privacy torts, but any mistake re: consent negates defense; truth not a defense

Question 2

Intentional misrepresentation

Answer 2

1. False representation of material fact—generally no duty to disclose
2. Scienter—knowledge or reckless disregard of truth
3. Intent to induce P to act or refrain in reliance on misrepresentation
4. Causation—actual reliance
5. Justifiable reliance—not justifiable if statement obviously false or lay opinion
6. Damages—actual economic loss/consequential damages, no nominal damages

Question 3

Negligent misrepresentation

Answer 3

1. D (accounting firm or other supplier of commercial information)
2. Provides false information to P as a result of D’s negligence in the course of D’s business or profession
3. P justifiably relies on the information and incurs pecuniary damages as a result
   • P must be in contractual relationship with D or D knows P is a member of a limited group for whose benefit the information is supplied
   • Information must be relied on in a transaction that D intends to influence or knows recipient intends to
4. Defenses—standard negligence defenses
5. Damages—reliance and consequential

Question 4

Intentional interference with business relations

Answer 4

1. Intentional interference with contract
   • D knew of valid contractual relationship between P and third party
   • D intentionally interfered with contract in a way that substantially exceeds fair competition and free expression, resulting in a breach and
   • Breach caused damages to P

• Defenses—justified if motivated by health, safety, or morals; contract is terminable at will; D is business competitor

2. Interference with prospective economic advantage (no contract)
   • More egregious conduct required for liability, should be independently tortious; violates federal or state law; improper conduct per balancing analysis
   • Business competitor will not be liable for encouraging switching business

3. Theft of trade secrets
• P owns valid trade secret (provides a business advantage)
• Not generally known
• Reasonable precautions to protect
• D took secret by improper means

Question 5

Injurious falsehoods

Answer 5

1. Trade libel—malicious publication of derogatory statement relating to P’s title to business property/quality of products, and interference or damage to business relationships; proof of special damages required and mental suffering damages unavailable; truth and fair competition are valid defenses
2. Slander of title—publication of false statement derogatory to P’s title to real property; malice; special damages as a result of diminished value in the eyes of third parties

Question 6

Wrongful use of the legal system

Answer 6

1. Malicious prosecution—intentional & malicious institution of legal proceeding for improper purpose; no probable cause; action dismissed in favor of the person against whom it was brought
   • Damages can include legal expenses, lost work time, loss of reputation, emotional
   distress
   • Judges and prosecutors have absolute immunity from liability
2. Abuse of Process—use of legal process against P in a wrongful manner to accomplish a purpose other than that for which the process was intended; willful act; proof of damages required