T16 - Defamation Flashcards
DEFAMATION, INVASION OF PRIVACY, AND OTHER HARM TO ECONOMIC AND DIGNITARY INTERESTS
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Defamation:
Elements?
5 elemebnts
The elements of defamation are:
• A DEFAMATORY STATEMENT that SPECIFICALLY IDENTIFIES the plaintiff
- Defamatory statements specificlaly referring to P. Dont have to ID by name.
- Defamation of a deceased person is not actionable.
• PUBLISHED to a third party
- Must be published to 3rd party. Pulished = must be to at least 1 OTHER person beyond Plaintiff.
• FALSITY of the defamatory language
• FAULT on the part of the defendant
- Fault: relates to awareness that stmt was inaccurate.
• DAMAGE to the plaintiff’s reputation.
Defemation Element 1:
A defamatory statement,
that…
Statement of opinion?
a. Inducement and Innuendo?
DEFAMATORY STATEMENT: A defamatory statement is one tending to adversely affect one’s reputation.
A statement of opinion is actionable only if it appears to be based on specific facts, and an express allegation of those facts would be defamatory. Name-calling is insufficient.
a. Inducement and Innuendo: If the statement is not defamatory on its face, the plaintiff may plead additional facts as “inducement” to establish defamatory meaning by “innuendo.”
b. Living Person Requirement: Any living person may be defamed. Defamation of a deceased person is not actionable. In a limited sense, a corporation, unincorporated association, or partnership may be defamed (for example, by remarks as to its financial condition, honesty, integrity, etc.).
Element 1: A Defamatory Stmt that Spec’ IDs P
Statement of opinion?
A statement of opinion is actionable only if it appears to be based on specific facts, and an express allegation of those facts would be defamatory.
Fault required depends on P
Private Person: negligence
Public figure: Knowledge of falsity or reckless disregard (MALICE).
- includes anyone in the public eye, and anyone involved in the public concern - even the V of a crime if their ID has been publicized.
Limited public figures: Public figure std Only if stmt relates to the reason they were in the public eye.
Libel
Defamation in permanent public form.
Damages PRESUMED (they dont need to be proved).
Slander per se
Words so clearly defamatory that ordinary person would undertand injury.
Damages presumed.
Defemation Element 2: Published to a third party
Requisite intent?
a. Who May Be Liable?
PUBLICATION:
Publication means communication of the defamation to a THIRD PERSON who UNDERSTANDS it.
Such publication can be made either intentionally or negligently.
It is the intent to publish, not the intent to defame, that is the requisite intent.
Each repetition is a separate publication.
However, for magazines, newspapers, etc., most states have adopted a “single publication” rule under which all copies are treated as one publication.
EXAM: The situation where a defamatory statement about the P is made only to the plaintiff. As a general rule, in this situation there is no publication and thus no defamation.
a. Who May Be Liable?
Primary publishers (for example, newspapers, TV stations, etc.) 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.
Defemation Element 3: Falsity of the defamatory language
Falsity
Under traditional common law, the P did not have to prove that the statement was false.
Rather the D was obliged to prove truth as a defense.
Many states have altered that rule, however, and now require the P to prove falsity as part of the case-in- chief. Even in states that still follow the traditional rule, the P must prove falsity in any case where the P is constitutionally obligated to prove fault.
EXAM: If you see a true statement on the exam, consider whether the P may have a cause of action for intentional infliction of emotional distress or invasion of right to privacy (unless the plaintiff is a public figure or a matter of public concern is involved).
Defemation Element 4: Fault on the part of the defendant
A majority of states require a showing of fault on the part of the D. In addition, there are constitutional limitations depending on the plaintiff’s status.
a. Public Official or Figure Must Prove Actual Malice
Under the New York Times v. Sullivan rule, actual malice must be proved in defamation cases brought by public officials and public figures.
• What Constitutes a Public Figure? A person becomes a “public figure” by achieving pervasive fame or notoriety or by voluntarily assuming a central role in a particular public controversy.
• Definition of Actual Malice: Actual malice (as defined by New York Times v. Sullivan) is:
— KNOWLEDGE that the statement was false OR
— RECKLESS DISREGARD as to whether it was false
This is a subjective test. The D’s spite or ill will is not enough to constitute malice.
Deliberately altering a quotation may constitute malice if the alteration causes a MATERIAL CHANGE in the meaning conveyed by the quotation.
b. PRIVATE PERSONS Must Prove Negligence If Matter of Public Concern
• Under Gertz v. Welch, when a private person is the P, only negligence regarding the falsity must be proved if the statement involves a matter of “public concern.”
If the statement is not a matter of public concern, constitutional restrictions do not apply (but note that many states require a showing of negligence as a matter of state law). If the defendant is negligent, only “actual injury” damages are recoverable. However, if actual malice is found, damages may be presumed, and punitive damages allowed.
• What Constitutes Actual Injury? Actual injury is not limited to economic damages. It may include damages for impairment to reputation and personal humiliation as long as the plaintiff presents evidence of such damages (in other words, no presumed damages).
• What Is a Matter of Public Concern?
To determine whether the defamatory statement involves a matter of public concern or private concern, the courts will look at the content, form, and context of the publication.
Defemation Element 5: Damage to the plaintiff’s reputation
The type of damages the P must prove depends on the type of defamation (libel or slander) involved. Damages generally are presumed under the law of libel.
In some slander cases, the plaintiff must prove that they suffered special damages—that is, they must have suffered some pecuniary loss in order to recover anything.
But once the P has proved special damages, they may recover general damages as well.
a. LIBEL: Libel is a defamation that is embodied in permanent form. It is often a written or printed publication of defamatory language. Defamation in radio and television programs is treated by most courts today as libel. The plaintiff typically does not need to prove special damages to recover and general damages are presumed. (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 reference to extrinsic facts to establish its defam- atory nature (libel per quod).)
b. SLANDER: Slander is spoken defamation. The plaintiff 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 (this in- cludes most common law crimes and is sometimes referred to as crimes involving “moral turpitude”)
• Impute that the plaintiff has engaged in serious sexual misconduct
• State that the plaintiff has a loathsome disease
Defenses to Defamation
a. Consent
Consent is a complete defense. The rules relating to consent to inten- tional torts apply here.
b. Truth
In cases where the plaintiff is not obligated to prove falsity of the statement as part of their own case, the defendant may prove truth as a complete defense.
c. Privilege
•Absolute Privilege—Can Never Be Lost: The defendant may be protected by an absolute privilege for the following:
• • Communications between spouses
• • Remarks made during judicial proceedings, by legislators during proceedings (even if not related to the proceedings), by federal executive officials, in “compelled” broadcasts
• Qualified Privilege—Can Be Lost Through Abuse: A qualified privilege arises only when there is a public interest in encouraging candor. The D bears the burden of proving that a privilege exists. Whether a speaker has a quali- fied privilege will be determined on a case-by-case basis. The qualified privilege may be lost if the statement is not within the scope of the privilege or it is shown that the speaker acted with actual malice. Some possible examples include:
• • References and recommendations
• • Reports of public hearings or meetings
• • Statements made to those who are to take official action (for example, statements made to a parole board about a prisoner)
• • Statements made to defend one’s own actions, property, or reputation
Mitigating Factors
Mitigating factors (for example, no malice, retraction, anger of the speaker provoked by the plaintiff) may be considered by the jury on the damages issue; they are not defenses to liability.
INVASION OF RIGHT TO PRIVACY
The right of privacy is a personal right and does not extend to members of a family, does not survive the death of the plaintiff, and is not assignable. The right of privacy is not applicable to corpo- rations. The invasion of the plaintiff’s interest in privacy must have been proximately caused by the defendant’s conduct. The plaintiff need not plead and prove special damages. Emotional distress and mental anguish are sufficient damages.
This tort includes four kinds of wrongs:
• 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
INVASION OF RIGHT TO PRIVACY, Wrong 1:
Appropriation of Plaintiff’s Picture or Name
It is necessary to show unauthorized use of the plaintiff’s picture or name for the defendant’s commercial advantage. Liability is gener- ally 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.
