Personal Rights Flashcards
Defamation Elements
- False unprivileged statement of fact
- Communicated to a third person (not a party to the action)
- Of and concerning the Plaintiff
- CA: P must be identifiable so the person who it was communicated to understands who you are talking about
- NY: (better for publishers) Look to see that the fictional character is so closely akin to the real person claiming defamation that people knowing the real person would have no difficult linking the two together. - The statement is likely to Harm the person’s reputation
- Lower them in the estimation of the community
- Deters third persons from associating or dealing with him (lost job or friends or opportunities) - Requisite degree of fault
- Merely negligence, OR
- Actual malice (public official, public figure, or limited public figure (person in a news story) - Damages
Determining whether a person is a “limited public figure” for defamation?
(1) A public controversy must exist
(2) Look at nature and extent of person’s participation in the controversy:
a. Voluntary participation?
b. Could the person counteract/counterbalance the information?
c. Prominence of the role the person played from the public controversy
Defenses to a defamation claims
1) The statement was an opinion
2) The statement is true
3) CCP 425.16 (CA):
1. D has to show that cause of action arises from an act in furtherance of public interest (freedom of speech)
2. The burden shifts to P to show a likelihood of success on the merits that they will reasonably prevail on the action. If they can’t, the case is dismissed.
Difference between False Light and Defamation
Defamation concerns statements that are actually false while false light focuses on false implication
A person can sue for false light when something is said about them that can be highly offensive and is implied to be true
Elements of a False Light Claim
- Public Disclosure: More than 3 people (as oppose to 1 like defamation)
- False implication created
- Of and Concerning the P (Someone must be able to recognize them)
- Placing the P in a false light which is highly offensive to a REASONABLE person
- With Fault: actual malice for public official, public figure, limited public figure or negligence for private person (same as defamation)
- Damages
How to show “actual malice” when determining fault
Applies when P is a public official (mayor), public figure (celebrity), or a limited public figure (someone in a news story that gets a lot of press or someone in a big criminal trial)
Actual malice requires that the statements were made w/ a reckless disregard for the truth
- D knew the statement was false or D showed a reckless disregard as to whether it was true or false.
D did in fact entertain serious doubts about the truth or falsity of the publication
Failure to investigate is not sufficient for finding actual malice
- Depends on whether there are sufficient circumstances to suggest that you should investigate: if you get it from a reliable source, no duty to investigate
Public Disclosure of Embarrassing Private Facts Elements
- Disclosure to the public (Three or more people)
- Of private facts about the P
- Highly offensive to a reasonable person
- Lack of legit public concern/newsworthiness:
Newsworthy: would a reasonable member in the community entertain a legit interest in it?
If yes, look for a nexus between P and the matter of public interest- a logical relationship between P and the legit public interest.
If so, ask if the intrusiveness is greatly disproportionate to the relevance?
- Damage
**TRUTH IS NOT A DEFENSE (b/c they are facts)
Intrusion on Seclusion Elements
- Unauthorized intentional intrusion
P needs a reasonable expectation of seclusion - Highly offensive to a reasonable person
- Damages causing anguish/suffering
*Talking about company business doesn’t violate someone’s right of privacy
*In CA, you must disclose to the individual that they are being recorded (medical lab isn’t a CA case)
When to use Intrusion on Seclusion CoA
Protects people’s reasonable expectation of privacy (someone trespasses/paparazzi- actual intrusion when photographer goes on property and constructive intrusion)
This expectation of privacy is subjective, but it must be objectively reasonable.
Commercial Appropriation Elements
- Use of the name or image of a person in an identifiable manner
- To the benefit of the wrongdoer
- Without consent
- Injury to the person’s dignity/self esteem
Defenses to Commercial Appropriation
- First amendment protection
- Newsworthiness/ matter of public interest
When to Use Commercial Appropriation CoA
Protects against personal feelings of anguish and embarrassment the individual has whereas under right of publicity it’s the commercial name and likeness
When someone sues for Public Disclosure of Private Facts, they also sue for this b/c very similar (right of publicity grew from commercial appropriation)
Right of Publicity (Common Law, CA)
(1) Connection between P’s identity and the appropriation of the name or likeness
(2) Of the P to the Ds advantage
(3) Lack of consent
(4) Resulting economic injury
SoL: 2 years
Right of Publicity (Statute, CA)
CA Civ Code §3344
ELEMENTS:
1. any person who knowingly uses another’s another’s NAME, VOICE, SIGNATURE, PHOTOGRAPH (still and moving), or likeness in any manner shall be liable in damages (any profits from the unauthorized use, as well as punitive damages, attorney fees, and costs.)
EXCEPTION: if something is newsworthy, it doesn’t require consent.
CA Civ Code §3344.1
Right of publicity is descendible (like property rights)- the right lasts for 70 years after the individual’s death.
The holder of the deceased person’s right of publicity must register w/ the secretary of state, and
To qualify under the statute, the deceased person’s right of publicity must have had commercial value at the time of death or got commercial value bc of the person’s death.
SoL: 2 Years
Right of Publicity (NY)
NY Civil Rights Law 50 & 51:
If you use someone’s name, voice, or likeness without their consent for advertising or trade- it’s a violation (misdemeanor)
UNLESS the use is incidental or the use is newsworthy
Can bring equitable action OR sue and recover damages for any injuries sustained by reason of such use
