Misc - defamation, privacy invasion, harm to economic + dignitary interest Flashcards
List (5)
Elements of defamation
- Defamatory statement the specifically identifies the P
- Published to the 3rd party
- Damage to P’s reputation
- Falsity of defamatory language - true/false test
- Fault of part of D
What does “fault of D’s part” mean in regards to defamatory statements
how aware was D (person who made statement) that statement was false
good-faith belief it was a true statement - NO fault
What needs to be proven for defamation of public figures
actual malice
what are the elements for proving actual malice
- Knowledge that statement was false -OR-
- Reckless disregard as to whether statement was false
What needs to be proven for defamation of private figures
only negligence
What are the 4 privacy torts
“CLIP”
- C: commercial appropriation
- L: false light
- I: intrusion into ones seclusion or solitude
- P: public disclosure of private facts
- requires proof that the publicized matter would be highly offensive to a reasonable person
CLIP
The sales representative of a hot dog company gave the proprietor of a corner hot dog stand a poster of an actress endorsing those hot dogs, which the proprietor put in the window. Sales picked up, but the actress filed suit against the proprietor for invasion of privacy because, in fact, she was a spokesperson for a rival hot dog company.
Will the actress prevail?
A No, because the actress is a public figure.
B No, because the proprietor was reasonably justified in believing the poster was authorized.
C Yes, because the actress had not given her permission to use the poster.
D Yes, because the proprietor gained profit from using the poster.
C Yes, because the actress had not given her permission to use the poster.
The proprietor has used the actress’s picture to promote the sale of hot dogs. The actress did not in any way consent to this use by the proprietor of her picture. Therefore, the “CLIP” elements that the actress needs to prove are present, and she will prevail.
(D) is wrong because there is no requirement that the defendant have actually profited from using the picture. The proprietor is liable for this tort simply because he used the actress’s picture without her permission to promote and advertise the hot dogs.
defamation
Defamation is actionable if the plaintiff proves defamatory language, “of or concerning” the plaintiff, publication by the defendant to a third person, falsity of the defamatory langauage, fault on the defendant’s part, and damage to the plaintiff’s reputation
defamation
A wife who maintained a joint checking account with her husband was surprised by an alert from her bank that their account was overdrawn. When she called the bank for an explanation, the bank representative told her that the transaction records showed a large amount of funds withdrawn from the account through a debit card for local escort services, which according to media reports were being investigated by the authorities for prostitution offenses. The wife told the bank representative that the bank must have made a mistake, but he insisted that the records were accurate. After the call, the wife confirmed that her debit card was in her purse and that her husband’s was in his wallet. She went out to her husband’s car and smashed the headlights with a baseball bat and carved her name in the leather seats. She then accused her husband of infidelity and threatened a divorce. He denied being responsible for the charges and claimed that the bank must have made an error. Because the bank had just closed for a holiday weekend, the husband endured a couple of days of strained relations with his wife before he could go to the bank and have the transaction records reviewed. On further review, the bank discovered that the charges were erroneous and should have been charged to another account.
Can the husband recover damages from the bank for defamation?
A No, because the bank representative made no defamatory statement about the husband.
B No, because the bank representative made the statements for the wife’s benefit.
C Yes, because the husband can show pecuniary harm to him from the bank representative’s statements.
D Yes, because the bank representative’s statements constituted slander per se.
B No, because the bank representative made the statements for the wife’s benefit.
the bank representative’s statements were made under a qualified privilege. To prove defamation, the husband must show: (i) defamatory language by the defendant (ii) of or concerning the plaintiff (iii) published to a third person (iv) that causes damage to reputation, (v) falsity of the defamatory language, and (vi) fault on the defendant’s part.
A man working at a clothing store discovered that his girlfriend, a coworker, had been taking money from the cash register. Not wanting to be a party to the situation, he ended the relationship and found another job. Not long after this, the man’s new boss, who knew why the man had quit, came into the clothing store. He asked the girlfriend if she missed her boyfriend working with her at the store. She replied, “Yes, but when we found that he was stealing from the cash register, we had no choice but to let him go.”
If the man sues his former girlfriend for defamation, the fact that the new boss knew the truth of why the man had left his job at the store will have what result?
A It will act as a complete defense to an action for defamation.
B It will establish that the man has not suffered any actual injury.
C It may diminish the damages that the man would be entitled to recover.
D It proves that the girlfriend had no reasonable ground for believing that the man was fired for dishonesty.
C It may diminish the damages that the man would be entitled to recover.
The girlfriend is liable for defamation because she made a defamatory statement about the man to a third person. As long as it is understood in its defamatory sense, an accusation need not be believed to be actionable. Because the statement that he was stealing at his job constituted slander per se, damages are presumed, completing the prima facie case. Nevertheless, the stated fact will diminish the amount of damages that the man will recover because his reputation was not likely harmed in the eyes of his boss.
(D) is wrong because the fact that the new boss did not believe the statement does not prove lack of basis for the girlfriend to have made it.
A salesman in a highly visible and competitive field went to the police station to post bond for his son, who had been arrested for possession of a small quantity of narcotics. A photographer for the local newspaper who was at the police station took a picture of the salesman flanked by two bulky police officers. The photo, which looked like the pictures of alleged criminals being taken into custody, ran on a quarter of the front page because it was a slow news day. The photo was accompanied by a very small caption giving the salesman’s name and stating that his son had been arrested for possession of narcotics. The salesman’s boss was hypersensitive about the reputation of his company and fired the salesman after he saw the picture in the newspaper.
If the salesman brings an invasion of privacy action against the newspaper, what is the most likely basis?
A Intrusion upon seclusion.
C Public disclosure of private facts.
D Appropriation of plaintiff’s picture for commercial purposes.
B False light publicity.
To establish a prima facie case for invasion of privacy based on publication by defendant of facts placing plaintiff in a false light, the following elements must be proved:
- publication of facts about plaintiff by defendant placing plaintiff in a false light in the public eye; and
- the “false light” must be something that would be highly offensive to a reasonable person under the circumstances.
The large picture of the salesman flanked by two bulky police officers could suggest that the salesman committed a crime because it looked like pictures that newspapers often print of alleged criminals being taken into custody. This “false light” would be highly offensive to a reasonable person under the circumstance
C in Clip
Commercial appropriation
must be for the promotion or advertisement of a product or service
L in Clip
PFC for false light
- publication of facts about plaintiff by defendant placing plaintiff in a false light in the public eye; and
- the “false light” must be something that would be highly offensive to a reasonable person under the circumstances
I in Clip
PFC for Intrusion upon plaintiff’s affairs or seclusion
- an act of prying or intruding on the affairs or seclusion of plaintiff by defendant
- the intrusion must be something that would be highly offensive to a reasonable person; and
- the thing to which there is an intrusion or prying must be “private.”
P in CLIP
PFC Public disclosure of private facts
- publication or public disclosure of private information about the plaintiff, and
- the matter made public is such that its disclosure would be highly offensive to a reasonable person.
