PRIVACY AND AFFIRMATIVE DEFENSES

Question 1

Appropriation

Answer 1

D uses P name or image for commercial purposes

Ex. cereal manufacturer uses tiger woods on box without permission

• newsworthiness exception (sports illustrated article)
• not limited to celebrities

Question 2

Intrusion

Answer 2

INVASION OF Ps SECLUSION that would be highly offensive to an average person

Ex. wiretapping, intercepting of intimate communications, etc…

-MUST HAVE REASONABLE EXPECTATION OF PRIVACY (home, hotel room, bathroom, dressing room, etc…)

Question 3

False Light ((NO IN FLORIDA))

Answer 3

D must widely disseminate a MATERIAL FALSEHOOD that would be highly offensive to an average person

-does not have to be defamatory, just FALSE (religious beliefs, etc..)

((FLORIDA) NO FALSE LIGHT but there is “DEFAMATION BY IMPLICATION”–> prejudices the Plaintiff in the eyes of a substantial and respectable minority in the community)

Question 4

Disclosure

Answer 4

D widely disseminates CONFIDENTIAL INFORMATION that would be highly offensive to an average person

-accurate but sensitive
-newsworthiness exception→ INVESTIGATIVE JOURNALISM
Ex. Mitt Romney’s health as it pertains to presidency→ NO TORT
Ex. My health as it pertains to Obama Care→ TORT
-must be genuine and truly CONFIDENTIAL
Ex. if you disclose the information and widely disseminate information not truly confidential

Question 5

Affirmative Defenses for Privacy (2)

Answer 5

1. consent (all 4)

2. privilege (FALSE LIGHT and DISCLOSURE)

Question 6

2 Business Torts

Answer 6

1. Misrepresentation

2. Interference with Business relations

Question 7

Misrepresentation (business tort) (2)

Answer 7

1. intentional

2. negligent

Question 8

Intentional Misrep (business tort) (6)

Answer 8

1. misrep (past/present fact)
2. scienter (knew/believed false or no basis for)
3. intent (to induce or refrain)
4. causation (actual reliance)
5. justifiable reliance
6. damages (actual pecuniary loss)

-NO DEFENSES

Question 9

Negligent Misrep (business tort) (5)

Answer 9

1. misrep (by D in business/profess capacity)
2. breach of duty to particular P
3. causation (actual reliance)
4. justifiable reliance
5. damages

• commercial setting
• P foreseeable

Question 10

Interference with business relations (business tort) (4)

Answer 10

1. existence of valid K relationship btwn P and 3rd p OR valid business expectancy of P
2. D knowledge of the relationship/expectancy
3. intentional interference by D inducing breach or termination of relationship/expectancy
4. damages

Question 11

Malicious Prosecution (5)

Answer 11

1. imposition of criminal proceedings against P
2. termination in P favor
3. absence of probable cause (insufficient facts for reasonable person to believe guilty OR D did not actually believe guilty)
4. improper purpose
5. damages

• prosecutors are immune from liability
• most juries have extended to CIVIL

Question 12

Abuse of Process (2)

Answer 12

1. wrongful use of process for ulterior purpose

2. definite act or threat against P in order to accomplish purpose