Privacy Torts Flashcards
Defamation Elements
(1) A defamatory statement by the defendant
- A defamatory statement is one that adversely affects the plaintiff’s reputation
- The defamatory statement must generally be a statement of fact.
(2) Of and concerning the Plaintiff
- A reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff.
- Extrinsic evidence may be offered to establish that the statement refers to the plaintiff (if not immediately obvious)
(3) Published to a third party
- Communication of the defamation to a third person who understands it
- Can be made either intentionally or negligently
- Each repetition is a separate publication, but most states have adopted a “single publication” rule for copies in print media
(4) Falsity of the Defamatory Language, and
- CL: did not have to prove the statement was false, D just had to prove it was a true statement.
- Now, many states require P to prove falsity
(5) Fault on the defendant’s part
- If P is a public official or a public figure, actual malice must be proven (Knowledge that the statement was false OR Reckless disregard as to whether it was false). Defendant’s spite or ill-will is not enough.
- If P is a private person, only negligence regarding the falsity must be proved if the statement involves a matter of “public concern.”
(6) Damage to the Plaintiff’s reputation
- Not limited to economic damages, can be damages for impairment to reputation and personal humiliation
- What type of damages? Ask if Libel or Slander
Can Statements of Opinions be Actionable?
Yes, if it appears to be based on specific facts and an express allegation of those facts would be defamatory.
Depends on the circumstances surrounding the publication and the nature of the words used.
What if the Statement is not Defamatory on its face?
The plaintiff may plead additional facts as “inducement” to establish defamatory meaning by “innuendo.”
Group Defamation
[Under “of and concerning the plaintiff” prong]
If the defamatory statement refers to ALL members of a small group, each member may establish that the statement specifically identifies them by alleging that they are a group member.
If the statement refers to SOME members of a small group, the plaintiff can recover if a reasonable person would view the statement as referring to the plaintiff.
If the statement is about a LARGE group, no member can prove that the statement specifically identifies them.
Who is Liable for Defamation After the Original Author or Speaker?
Primary publishers are liable to the same extent as the author or speaker.
One who repeats a defamation is liable on the same general basis as the primary publisher (even if she states the source or makes it clear that she does not believe the defamation).
One selling papers or playing audio files is a secondary publisher and is liable only if he knows or should know of the defamatory content.
An Internet service provider is not treated as a publisher when a user of its service posts defamatory content.
What is a Matter of Public Concern
The plaintiff must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff.
Two Types of Defamation
LIBEL: Defamation that is embodied in permanent form (e.g., a written or printed publication of defamatory language)
- Defamation in radio and television programs is treated by most courts today as libel.
P typically does not need to prove special damages to recover- general damages are presumed. However, a minority of courts will presume general damages only if the statement is defamatory on its face (libel per se) and require proof of special damages if the statement requires extrinsic facts to establish its defamatory nature (libel per quod).)
SLANDER: Spoken defamation. P must prove special damages unless the defamation falls within one of the slander per se categories. These are defamatory statements that:
* Adversely reflect on the plaintiff’s business or profession
* State that the plaintiff has committed a serious crime
* Impute that the plaintiff has engaged in serious sexual misconduct
* State that the plaintiff has a loathsome disease
Defenses to Defamation
Consent
Truth
Privilege
Absolute Privileges (can never be lost):
- Communications between spouses
- Remarks made during judicial proceedings by legislators, or by federal executive officials in “compelled” broadcasts
Qualified Privilege (can be lost through abuse):
- References and recommendations
- Reports of public hearings or meetings
- Statements made to those who are to take official action
- Statements made to defend one’s own actions, property, or reputation
Four Kinds of Invasion of Privacy
- Appropriation of the plaintiff’s picture or name
- Intrusion on the plaintiff’s affairs or seclusion
- Publication of facts placing the plaintiff in a false light
- Public disclosure of private facts about the plaintiff
Appropriation of Plaintiff’s Picture or Name
Must show unauthorized use of the plaintiff’s picture or name for the defendant’s commercial advantage.
Liability is generally limited to advertisements or promotions of products or services.
Mere economic benefit to the defendant (not in connection with promoting a product or service) by itself is not sufficient.
Intrusion on Plaintiff’s Affairs or Seclusion
Forbids acts such as eavesdropping, spying, interception of phone calls or electronic communications, and other similar conduct.
The act of intruding must be highly offensive to a reasonable person.
The intrusion must be into a “private” matter. Photographs taken in public places are not actionable.
False Light
“False light” exists where one attributes to the plaintiff views they do not hold or actions they did not take.
- Must be something highly offensive to a reasonable person under the circumstances.
- Defendant must circulate the statement to the public at large. Sharing the statement with only one or a few persons will not be sufficient to trigger liability.
First Amendment Limitation: if the matter is of public interest, actual malice on the defendant’s part must be proved.
Public Disclosure of Private Facts About Plaintiff
This wrong involves public disclosure of private information about the plaintiff. Matters of public record are not sufficient.
The public disclosure must be highly offensive to a reasonable person of ordinary sensibilities. Liability may attach even though the actual statement is true.
First Amendment limitations probably apply if the matter is of legitimate public interest.
Defenses to the Invasion of Privacy Torts
Consent + Qualified and Absolute Privileges.
Truth generally is not a good defense; nor is inadvertence, good faith, or lack of malice.
Intentional Misrepresentation (Fraud, Deceit)
To establish a prima facie case of intentional misrepresentation or fraud, plaintiff must prove:
(1) Misrepresentation by defendant
(2) Scienter (defendant made the statement knowing it to be false or made it with reckless disregard as to its truth or falsity)
(3) Intent to induce plaintiff’s reliance on the misrepresentation
(4) Causation (actual reliance on the misrepresentation)
(5) Justifiable reliance on the misrepresentation, and
- If a third party relies on the defendant’s representation, the defendant will be liable if they could reasonably foresee that the third party would so rely.
(6) Damages
NO DEFENSES TO INTENTIONAL MISREPRESENTATION
