Page 45 Flashcards
Who has the burden of proving a qualified or conditional privilege for defamation?
Defendant
Under a qualified or conditional privilege for defamation, when is the defendant protected?
When he makes a statement, unless:
- he acts with malice
- exceeds the scope of his privilege
- makes a statement without believing it is true
What are the qualified or conditional privileges that apply to defamation?
IRAC DAC
- INTEREST: protection of own interest
- REPORT: fair and accurate report
- AUTHORS: freelance authors
- CONSTITUTIONAL privilege
- DICTATION
- ASK: credit agencies and prospective employers
- fair COMMENT
Why is it a qualified privilege for a boss to explain why he fired someone?
Because he was not trying to defame the person
Are you allowed to say matters of public interest to an official that is empowered to deal with the matter without being liable for defamation?
Yes, you can tell your suspicions to a cop
What are qualified or conditional privileges for defamation based on?
Moral, legal, or social obligations
How is a person allowed to protect his own interest as a qualified or conditional privilege to defamation?
If he is wrongly accused, he can exonerate himself by implicating someone else, or can explain why something happened
If someone asks you why you quit your job, and that requires that you make a statement about your boss that would otherwise be defamatory, do you have a qualified privilege to explain yourself?
Yes, under protection of your own interest
What is the fair and accurate report qualified privilege for defamation?
You can report a public meeting and info and public records as long as it is accurate and unbiased
Would a radio station or TV station be liable for a broadcast that has defamations during a campaign speech?
No, because that would fall under the fair and accurate report qualified privilege for defamation
What is the fair comment qualified privilege for defamation?
Critics are allowed to comment on the efforts of others like writers, stars, athletes, restaurants, etc.
What are the two different views about fair comment privilege to defamation?
- majority view: protected if it was about a matter of public interest, based on truth, and honestly believed
- minority view: as long as the critic honestly believed it, the privilege stays even if the facts are incorrect
If a credit agency or prospective employer asks you for information about someone, can you be liable for defamation?
No, responses to these people are privileged so long as the party who asked you for it needed the information, and the information was relevant
How can you lose a qualified privilege for defamation?
- if you don’t have an honest belief that what you said was true
- you give more information than was necessary
- you exceed the scope of the privilege
- you act with malice
What is the burden of proof for a qualified privilege for defamation?
- Defendant must prove the privilege is applicable
- Plaintiff must show the privilege was lost
What is excessive publication, and how can it result in the loss of a qualified privilege for defamation?
When a person speaks so loudly in a public place that they are overheard by others
Is dictation considered a privileged for defamation?
Sometimes, because of the confidential relationship involved, although most courts say that any publication to any third party is defamation
Does respondeat superior apply when a freelance author that was hired for a single assignment defamed someone?
Not unless:
- the publisher knew the freelancer was a deliberate liar, or
- didn’t believe the piece but published it anyway
If you get information from a questionable source and publish it, have you acted with malice?
You might have if the source’s credibility was seriously questioned by many other witnesses, and you didn’t listen to the taped conversations that disproved the story, or you didn’t interview someone that could verify the story, etc.
If you fail to investigate a story, can you be guilty of actual malice?
No
How can constitutional privilege make you not liable for defamation?
Publishing information about criminal conduct of candidates for elected office is never irrelevant because it relates to the candidate’s fitness for office
If you defame someone to advance your own interests, can that be conditionally privileged?
Yes, if it is said in the reasonable belief that it was true and it was relevant
Does there have to be a request for information in order to have a qualified privilege to escape liability for defamation if there was a sufficient relationship between the two people?
No, like an employee-employer relationship
How can consent be a conditional privilege to defamation?
If the plaintiff told you to tell other people something, then you had their consent
Can you consent to another person’s negligence?
No, this is only a defense to intentional torts. The negligence equivalent of consent is assumption of the risk
If malice can be established for defamation, then what kind of damages can be given?
General and punitive, a.k.a. presumed
If the fault requirement for defamation is negligence, then what has to be proved?
Actual damages
What is abuse of process?
Intentional misuse of the legal process for ulterior/improper purposes that result in damage to the plaintiff
What is an example of abuse of process?
Trying to punish someone that owes you money by putting excessive writs of attachment on thousands of pieces of their property
Can a public official be charged with abuse of process from his discretionary decision to prosecute?
No, they are immune from this
What are the two different kinds of abuse of process?
- Malicious prosecution
- Malicious institution of civil proceedings
What is malicious prosecution?
Instituting criminal proceedings:
- for an improper purpose
- without probable cause
- that terminates favorably to the P
- and causes the P damages
What are the two requirements for malicious prosecution?
Defendant:
- lacked PC
- was motivated by malice
If you report a crime to public officials in good faith, is that malicious prosecution?
No, you are privileged to do that
What are some examples of malicious prosecution?
- persuading a prosecutor to bring charges
- knowingly giving false info to authorities
What are the elements of malicious prosecution?
- D instigates prosecution
- maliciously
- without PC
- court finds for P
- damages
How do you act maliciously for that element of malicious prosecution?
Act with improper purpose, spite, ill will, abuse of position (purpose other than bringing a guilty person to justice)
How can you act without probable cause for malicious prosecution?
You don’t have a reasonable basis to think plaintiff committed the charge
If a D acts on the advice of counsel, can that count for malicious prosecution?
No, that establishes probable cause
When can a plaintiff sue for malicious prosecution?
After the initial action is finished and only if he is found innocent
If a trial terminates because of procedural or technical defects, can you then sue for malicious prosecution?
No, you had to have been found innocent
What are damages for malicious prosecution?
- economic consequences of litigation
- emotional distress
- reputational injury
- punitive damages if malice is present
What are defenses to malicious prosecution?
- judges, prosecutors, and cops are immune as long as they’re doing their job
- P was actually guilty
