Torts Flashcards
Defamation (types)
Libel (printed) and slander (spoken/oral)
Defamation (elements)
P must prove that D made a statement that was:
(1) defamatory and false; (2) of or concerning P; (3) statement was published to a 3rd party who understood its defamatory nature; and (4) it damaged P’s reputation
Define defamatory
Statement diminishing respect, esteem, or good will for P, OR deterring others from associating w/P
Define publication (an who does not fall qualify as a publisher)
ANY communication to award party of the false and defamatory statement (guilty if repeating stat. even if stat. did not originate w/you)
Note: internet providers (e.g., Comcast) and platforms (e.g., FB) are NOT publishers
What are the types of Ps in a defamation suit?
Public officials or public figures, and private individuals
Who are public officials for defamation purposes)?
Public officials: substantial authority/control over govt office (even if not elected)
Who are public figures for defamation purposes?
Public figures: can be general (society’s influencers, e.g., Madonna) or limited purpose (someone who involves themselves w/particular public controversy, e.g., Monica Lewinsky)
What are the constitutional limitations on defamation for public figures/officials?
Public officials/figures must show: (i) statement is false AND (ii) person making it KNEW or recklessly disregarded the truth of statement.
Aka actual malice = knowledge or reckless disregard
What are the constitutional limitations on defamation for private individuals (on a matter of public concern? + What are the damages available for it?
P must show that: (i) statement is false and (ii) person making the statement was negligent (should have known it was false)
Damages: it can recover actual damages, UNLESS showing actual malice (knew/reckless disregard)
What are the constitutional limitations on private individuals on NOT matter of public concern? + what are the damages available?
Unclear, but a minimum for P to prove negligence.
Damages: general damages (w/o proving actual malice)
What are the damages for libel and slander?
Libel — recover general damages w/o proof of meaurable harm
Slander— special damages w/proof of measurable harm
When can you recover for slander w/o proof of measurable harm?
Under slander per se which are statements regarding: (1) commission of a serious crime; (2) unfitness of person for trade/profession; (3) loathsome disease; (4) severe sexual misconduct
What are the defenses for defamation?
- Consent
- Absolute privileges (complete immunity for statement made: in judicial/legislative proceedings; b/w spouses; in required radio/tv ads)
- Conditional privileges (statements made in good faith pursuant to some duty/responsibility such as in the interest of defendant, or on the recipient of the statement, or affecting some importan public interest
Invasion of privacy, who does it apply to?
Individuals and only until they die
What are the types of invasion of privacy? (IFLAP my wings)
I: intrusion upon seclusion
F: False Light
A: appropriation of the right to publicity
P: public disclosure of private facts
Define intrusion upon seclusion
A reasonable person would object on D’s intrusion upon P’s private affairs
Define False Light
D makes (1) public facts aboutP; (2) placing P in a false light; (3) which would be highly offensive to a reasonable person
Define appropriation of right to publicity
Someone appropriates your name or likeliness for their advantage w/o your consent, and causes injury
NOTE: it MUST be exploitative (does not need to be commercial exploitation)
Define public disclosure of private facts
(1) D publicizes a matter concerning the private life of another
(2) such matter is (a) highly offensive to a reasonable person; and (b) is not of legitimate/newsworthy concern to the public
Note: this is hard to prove b/c mot things are of legitimate/newsworthy concern
What are the damages for invasion of privacy?
P does NOT need to prove special damages, emotional or mental distress is sufficient
What are defenses to invasion of privacy?
Qualified and absolute privilege — applicable to FL and P
Consent — applicable to all, complete bar.
Truth — NOT a defense to privacy torts
What are defenses for SPL?
- Comparative fault: P’s own negligence will reduce his recovery.
NOTE: manufacturers/sellers will generally still be liable even with P’s foreseeable product misuse, modification, or alteration but it will be viewed as comparative fault. - Substantial changes to the product — BAR recovery
- Assumption of the risk — full BAR
