Torts AMP Set - Defamation, Privacy And Economic Torts

Question 1

A newspaper that publishes a defamatory statement made by a columnist is __________.

A liable as a secondary publisher

B liable as a primary publisher

C not liable absent at least negligence that the statement was defamatory

D liable as a republisher

Answer 1

B

The newspaper is liable as a primary publisher. Each individual who takes part in making the publication is charged with the publication as a primary publisher; e.g., a newspaper or TV station carrying a defamatory message would be viewed as a primary publisher and held responsible for that message to the same extent as the author or speaker. The newspaper is not liable as a republisher or as a secondary publisher. A republisher is one who repeats a defamatory statement. A republisher usually will be held liable on the same general basis as a primary publisher. A secondary publisher is responsible only for disseminating materials that might contain defamatory matter (e.g., a vendor of newspapers, a player of a tape) and is liable only if he knew or should have known of the defamatory content. Because the newspaper is a primary publisher rather than a secondary publisher, it will be liable even absent negligence that the statement was defamatory. QUESTION ID: T0008 Additional Learning

Question 2

Common law defamation includes which of the following elements?

A Falsity of the defamatory language and damage to the plaintiff’s reputation

B Intentional or negligent publication and falsity of the defamatory language

C Intentional or negligent publication and damage to the plaintiff’s reputation

Answer 2

C

Intentional or negligent publication and damage to the plaintiff’s reputation are elements of common law defamation. At common law, the following elements were required for a prima facie case of defamation: (i) Defamatory language on the part of the defendant; (ii) Defamatory language “of and concerning” the plaintiff (i.e., identifying the plaintiff to a reasonable reader, listener, or viewer); (iii) Publication of the defamatory language by the defendant to a third person; and (iv) Damage to the reputation of the plaintiff. As to (iii), the publication may be made either intentionally or negligently. As to (iv), damages is an element of the prima facie case even though in some cases damages may be presumed. Falsity of the defamatory language is not an element of common law defamation. The element of falsity is constitutionally required when the defamation refers to a public figure or involves a matter of public concern. QUESTION ID: T0001A Additional Learning

Question 3

Presumed damages may be recovered for defamation on a matter of purely private concern:

A Only if malice is established

B Even if malice is not established

C Only if actual injury is shown

Answer 3

B

Presumed damages may be recovered for a purely private concern even if malice is not established. When the defamatory statement involves a matter of purely private concern, the restrictions from Gertz v. Robert Welch, Inc. (i.e., prohibiting liability without fault and restricting the recovery of presumed or punitive damages) do not apply (note, though, that many states require proof of negligence as a matter of state law even for defamation on matters of private concern). Presumed damages may be recovered as permitted by common law. Thus, it is not true that presumed damages for defamation on a matter of purely private concern require proof of malice or actual injury. These requirements pertain to defamation involving public figures or matters of public concern. QUESTION ID: T0011C Additional Learning

Question 4

A defendant’s interference with the plaintiff’s business contract may be acceptable if the interference is justified by __________.

A Competition

B Privilege

C Persuasion

Answer 4

B

Privilege may make interference with a business contract acceptable. Interference with contract provides for liability if there is intentional interference by a defendant that induces a breach or termination of a contract or expectancy. However, the defendant’s conduct may be privileged if he is properly attempting to obtain business or protect his interests. Several factors determine whether the defendant has a privilege to interfere, such as if the plaintiff is pursuing a prospective business relationship but does not have an existing contract, or if the defendant uses commercially accepted means of persuasion rather than illegal or threatening tactics. Persuasion and competition are not the reasons that interference with a business contract may be acceptable; interference may be acceptable because it is privileged. However, persuasion and competition may provide the foundation for a defendant’s conduct being privileged. For instance, interference with a plaintiff’s prospective business relationship will likely be privileged if the defendant is a competitor of the plaintiff pursuing the same customer. QUESTION ID: T0017B Additional Learning

Question 5

What must be shown for a qualified privilege to apply for defamatory statements?

A The statement must not have been made with ill-will

B There must be a common interest between the publisher and the recipient

C The statement must be in response to a request by the recipient

D The statement must be reasonably relevant to the interest being protected

Answer 5

D

For a qualified privilege to apply, the statement must be reasonably relevant to the interest being protected. The privilege does not encompass the publication of irrelevant defamatory matter unconnected with the public or private interest entitled to protection. There need not be a common interest between the publisher and the recipient; statements made in the interest of one party but not the other may fall within a qualified privilege. While a qualified privilege does not apply if the defendant acted with actual malice, that term refers to knowledge of falsity or reckless disregard of truth rather than ill will; hence, a defendant acting with ill will may still assert a qualified privilege. The statement need NOT be in response to a request by the recipient; if the publisher has a relationship with the recipient, volunteered statements may fall within the privilege. QUESTION ID: T0013B Additional Learning

Question 6

In an action for fraud or deceit, with regard to the element of misrepresentation:

A The defendant cannot be liable for failing to disclose a material fact unless a fiduciary relationship exists between the parties

B The defendant cannot be liable for a misrepresentation of opinion

C The defendant cannot actively conceal a material fact

Answer 6

With regard to the element of misrepresentation in an action for fraud or deceit, the defendant cannot actively conceal a material fact. While there is no general duty to disclose a material fact, where a person actively conceals a material fact, she is under a duty to disclose this fact, and failure to do so satisfies the misrepresentation element of a prima facie case for intentional misrepresentation. The defendant CAN be liable for a misrepresentation of opinion. Typically, the misrepresentation is of a material past or present fact. However, in cases where reliance on an opinion is justified, a misrepresentation of opinion may be actionable. It is also incorrect to state that the defendant cannot be liable for failing to disclose a material fact unless a fiduciary relationship exists between the parties. There are other exceptions where failure to disclose may satisfy the misrepresentation element, such as when the defendant is selling real property and knows that the plaintiff is unaware of and cannot reasonably discover material information about the transaction, or when the defendant speaks and her utterance deceives the plaintiff. QUESTION ID: T0016B Additional Learning

Question 7

There is an absolute privilege at common law for a defamatory statement if:

A It is a report of a public proceeding

B The statement’s publication is compelled by law
Incorrect

C The speaker made the statement in defense of her own actions

Answer 7

B

If a defamatory statement’s publication is compelled by law, there is an absolute privilege for the publisher, not a qualified privilege. Thus, if a newspaper was compelled to print a public notice, and the notice contained a defamatory statement, the newspaper would be absolutely privileged in its publication. A report of a public proceeding is not absolutely privileged; rather there is a qualified privilege at common law. Inaccurate reports of the statements made during the proceeding are not protected. If a speaker made a defamatory statement in defense of her own actions, the speaker is not absolutely privileged; the speaker is only protected by a qualified privilege. The privilege may be lost if the statement was made with knowledge of its falsity or with reckless disregard for its truth or falsity. QUESTION ID: T0013A Additional Learning

Question 8

Pleading additional facts to show that a defamatory statement referred to a plaintiff is known as __________.

A Innuendo

B Colloquium

C Inducement

Answer 8

B

Colloquium involves pleading additional facts to show that a defamatory statement refers to a plaintiff. A statement may be actionable even though it has no clear reference to the plaintiff on the face of the statement. In such a case, the plaintiff must introduce additional extrinsic facts that would lead a reasonable reader, listener, or viewer to perceive the defamatory statement as referring to the plaintiff. This process is called colloquium. Inducement and innuendo are not the processes used to prove that a defamatory statement refers to a plaintiff. Rather, these are the terms for demonstrating that a statement is defamatory, when it does not appear so on its face. A statement not defamatory on its face can be actionable if the defamatory meaning becomes apparent by adding extrinsic facts. The plaintiff pleads and proves additional facts, known as inducement, and establishes the defamatory meaning, known as innuendo. QUESTION ID: T0006C Additional Learning

Question 9

A prima facie case of interference with business relations does not require proof of __________.

A An existing contract

B Damages

C The defendant’s knowledge of a contractual relationship or expectancy

Answer 9

A

Proof of an existing contract is not required for a prima facie case of interference with business relations. A prima facie case of interference with contract does require proof of the defendant’s knowledge of a contractual relationship and damages. While a plaintiff could have a cause of action for interference with an existing contract, a plaintiff could also have a cause of action for interference with a probable future business relationship. The following elements must be proved: (i) The existence of a valid contractual relationship between the plaintiff and a third party or a valid business expectancy of the plaintiff; (ii) The defendant’s knowledge of the relationship or expectancy; (iii) Intentional interference by the defendant that induces a breach or termination of the relationship or expectancy; and (iv) Damages to the plaintiff. QUESTION ID: T0005A Additional Learning

Question 10

Presumed damages cannot be recovered for libel when:

A The defamation involves a matter of public concern and the plaintiff proves actual malice by the defendant.

B The plaintiff is a private figure, the defamation involves a matter of public concern, and actual malice is not proven.
Incorrect

C The plaintiff is a private figure, the defamation involves a matter of private concern, and actual malice is not proven.

D The plaintiff is a public official or public figure and proves actual malice by the defendant.

Answer 10

B

When the plaintiff is a private figure, the defamation involves a matter of public concern, and actual malice is not proven, the Supreme Court has held that the plaintiff must prove (i) fault in making the defamatory statement and (ii) actual injury suffered (i.e., presumed damages are not allowed). However, the requirement of proof of actual injury does not apply for defamation involving a matter of public concern or when the plaintiff is a public figure so long as the plaintiff proves actual malice by the defendant. Once the plaintiff shows actual malice (i.e., knowledge of falsity or reckless disregard as to truth or falsity), the constitutional protections do not apply, and the plaintiff can recover presumed damages for libel permitted by state law. When the plaintiff is a private figure and the defamation involves a matter of purely private concern, the constitutional limitations established by the Supreme Court do not apply; only the four elements of the common law prima facie case are required (note, though, that many states require proof of negligence as a matter of state law even for defamation on matters of private concern). Thus, presumed damages might be recoverable even when actual malice is not proven. QUESTION ID: T0010 Additional Learning

Question 11

Whose statements are absolutely privileged in judicial proceedings?

A Judges and attorneys only

B Judges, attorneys, jurors, witnesses, and parties

C Judges, attorneys, and witnesses only

Answer 11

B

All statements made by the judge, jurors, counsel, witnesses, or parties in judicial proceedings are absolutely privileged; it is not limited to judges, attorneys, and witnesses only or judges and attorneys only. The privilege attaches to all aspects of the proceedings (e.g., statements made in open court, pretrial hearing, deposition, or in any of the pleadings or other papers in the case). It is required, however, that the statement bear some reasonable relationship to the proceedings. QUESTION ID: T0012B Additional Learning

Question 12

Which of the following is not an element of a common law action for defamation?

A Intentional or negligent publication of defamatory language by the defendant to a third person.

B Falsity of the defamatory language.

C The defamatory language is of and concerning the plaintiff.

D Damage to the reputation of the plaintiff.

Answer 12

B

Falsity of the defamatory language is not an element of common law defamation. At common law, the following elements were required for a prima facie case of defamation: 1. Defamatory language on the part of the defendant; 2. The defamatory language must be “of and concerning” the plaintiff (i.e., it must identify the plaintiff to a reasonable reader, listener, or viewer); 3. Publication of the defamatory language by the defendant to third person; and 4. Damage to the reputation of the plaintiff. The element of falsity is constitutionally required when the defamation refers to a public figure or involves a matter of public concern. Intentional or negligent publication of the defamation by the defendant to a third person is an element of the tort. Note that the publication may be made either intentionally or negligently. The defamatory language must be of and concerning the plaintiff for the plaintiff to have a cause of action for defamation. Damage to reputation of the plaintiff is an element of defamation, even though in some cases damages will be presumed. QUESTION ID: T0001 Additional Learning

Question 13

The right of privacy:

A Does not extend to members of a family

B Survives the plaintiff’s death

C Is assignable

Answer 13

A

The right of privacy is a personal right and does not extend to members of a family. It also does not apply to corporations; only individuals may avail themselves of a right-to-privacy action. The right of privacy is NOT assignable and does NOT survive the death of the plaintiff. QUESTION ID: T0015C Additional Learning

Question 14

Which one of the following types of common law defamation requires pleading and proof of special damages?

A Slander not falling into one of the four per se categories.

B Libel not defamatory on its face.

C Libel not falling into one of the four per se categories.

D Slander not defamatory on its face.

Answer 14

A

Slander not falling into one of the four per se categories requires pleading and proof of special damages (i.e., pecuniary losses). Injury to reputation is not presumed for spoken defamation unless it falls into one of the four categories of slander per se. Damages will be presumed if the defamation:1. Disparages the plaintiff in the conduct of her business or occupation;2. Asserts that the plaintiff is suffering from a loathsome and communicable disease;3. Alleges that the plaintiff has committed a serious crime or crime of moral turpitude; or4. Imputes unchastity to a female plaintiff. Libel does not require special damages, even libel not falling into one of the four per se categories. In most jurisdictions, general damages are presumed by law for all libel; i.e., special damages need not be established. The fact that slander is not defamatory on its face does not affect whether special damages are required; rather, whether the slander falls into the per se categories determines that requirement. Only a minority of courts require special damages for libel not defamatory on its face. As stated above, most states do not require special damages for libel. QUESTION ID: T0009 Additional Learning

Question 15

A qualified privilege for a defamatory statement will not be lost in most jurisdictions if:

A The statement was made with reckless disregard as to its truth or falsity

B The statement was made with knowledge that it was untrue

C The speaker bears ill will toward the plaintiff

Answer 15

C

A qualified privilege will not be lost if the speaker merely bears ill will toward the plaintiff. A qualified privilege will be lost if the speaker acted with malice. At common law, many courts held that ill will of the defendant toward the plaintiff would result in the loss of the qualified privilege. Most courts, however, no longer define malice in this way. The defendant will not lose a qualified privilege simply because she bears ill will toward the plaintiff. A qualified privilege for a defamatory statement will be lost if the statement was made with knowledge that it was untrue or with reckless disregard as to its truth or falsity; this is how malice is currently defined for defamation law. A qualified privilege exists only if exercised in a reasonable manner and for a proper purpose. Thus, even though the facts might otherwise give rise to a qualified privilege situation, the actor may lose this privilege by virtue of his conduct, which includes acting with malice. QUESTION ID: T0013C Additional Learning

Question 16

Which of the following invasion of privacy branches require the plaintiff to show “publicity”?

A Publication of facts placing plaintiff in a false light and public disclosure of private facts about plaintiff.
Incorrect

B Intrusion on plaintiff’s affairs or seclusion, publication of facts placing plaintiff in a false light, and public disclosure of private facts about plaintiff.

C Intrusion on plaintiff’s affairs or seclusion and publication of facts placing plaintiff in a false light.

D Intrusion on plaintiff’s affairs or seclusion and public disclosure of private facts about plaintiff.

Answer 16

A

The invasion of privacy branches based on publication of facts placing plaintiff in a false light and public disclosure of private facts about plaintiff require “publicity” concerning the false light or private facts—i.e., widespread dissemination of the facts. Mere publication to a third person is not sufficient for liability. In contrast, invasion of privacy based on intrusion on plaintiff’s affairs or seclusion does not require either publication or publicity - just the act of intruding. QUESTION ID: T0014 Additional Learning

Question 17

If a plaintiff is a member of a group, and a defamatory statement is made against the group, __________.

A The plaintiff can recover regardless of the size of the group

B The plaintiff can recover if the group is small

C The plaintiff can recover if the group is large

D The plaintiff cannot recover

Answer 17

B

A plaintiff can recover if the group is small and a defamatory statement is made against the group. Sometimes a defamatory statement may refer to a group without identifying any particular individual within that group. When the defamatory language refers to all members of a small group, each member may establish that the defamatory statement was about him by alleging that he is a member of the group. Thus, it is incorrect to say that the plaintiff cannot recover in this instance. A plaintiff CANNOT recover if the group is large and a defamatory statement is made against the group. If a defamatory statement refers to all members of a large group, no member of that group may establish a claim for defamation. Thus, it is incorrect to say that the plaintiff can recover regardless of the size of the group. QUESTION ID: T0007A Additional Learning

Question 18

How is “actual malice” defined for purposes of the constitutional law of defamation?

A Knowledge that the statement was false, or reckless disregard by the defendant as to the statement’s truth or falsity.

B Ill will or spite towards the plaintiff by the defendant.
Incorrect

C At least negligence by the defendant as to the statement’s truth or falsity.

D Knowledge that the statement will defame the plaintiff, or reckless disregard by the defendant as to the effect of the defamatory language.

Answer 18

A

Actual malice, which must be established by a public official or public figure to recover for defamation, was defined by the Supreme Court as (i) knowledge that the statement was false, or (ii) reckless disregard by the defendant as to the statement’s truth or falsity. Negligence by the defendant as to the statement’s truth or falsity is the minimum standard imposed by the Court on a private figure when the defamation involves a matter of public concern; “actual malice” is a higher standard. Ill will or spite towards the plaintiff by the defendant is how malice was defined at common law, but is not used by the Supreme Court to define malice. Knowledge that the statement will defame the plaintiff or reckless disregard by the defendant as to the effect of the defamatory language is not how malice was defined by the Supreme Court. The Court used actual malice to describe the defendant’s necessary state of mind as to the statement’s truth or falsity, not its defamatory nature. QUESTION ID: T0002 Additional Learning

Question 19

Which of the following may give rise to a privilege to interfere with a business relationship between the plaintiff and a third party?

A The fact that there was no contract between the plaintiff and the third party

B The defendant’s relationship with a third party

C Type of damages suffered by the plaintiff

Answer 19

B

The defendant’s relationship with a third party is a factor that may give rise to a privilege to interfere with the plaintiff’s business relations with another. The type of damages suffered by the plaintiff is not considered in determining whether a privilege exists in an action for interference with business relations. The plaintiff must prove actual damages from the interference, and may recover mental distress damages and punitive damages in appropriate cases, but the type of damages suffered by the plaintiff is not related to the privilege factors. The fact that there was no contract between the plaintiff and the third party is not a factor giving rise to a privilege. In fact, the tort of interference with business relations also covers interference with a valid business expectancy of the plaintiff, not just a contract. QUESTION ID: T0017A Additional Learning

Question 20

Which of the following would form the basis for special damages from defamation?

A Loss of a job

B Loss of friends

C Mental distress

Answer 20

A

Loss of a job would form the basis for special damages from defamation. Special damages from defamation are awarded when the plaintiff suffers a pecuniary loss as a result of a defamatory statement. The loss of a job is the type of pecuniary loss contemplated in the awarding of special damages. Mental distress does not form the basis for special damages from defamation. Mental distress is an element of general damages for defamation, which are presumed by the law and need not be proved by the plaintiff in a defamation claim. Loss of friends does not form the basis for special damages from defamation. Special damages require proof of a pecuniary loss and are not proved merely by evidence of actual injury, such as the loss of friends, humiliation, or hurt feelings. QUESTION ID: T0009C Additional Learning

Question 21

Which of the following is required for the prima facie case for both intentional and negligent misrepresentation?

A An intent to induce the plaintiff’s reliance

B Justifiable reliance by the plaintiff
Incorrect

C Scienter

Answer 21

B

Justifiable reliance by the plaintiff must be proved for the prima facie case for both intentional and negligent misrepresentation. Causation and damages are also elements of both torts. Scienter and an intent to induce the plaintiff’s reliance do not need to be proved for a prima facie case for negligent misrepresentation; rather, those must be established for a prima facie case of intentional misrepresentation. The elements of negligent misrepresentation are: (i) Misrepresentation by the defendant in a business or professional capacity; (ii) Breach of duty toward a particular plaintiff; (iii) Causation; (iv) Justifiable reliance by the plaintiff upon the misrepresentation; and (v) Damages. The elements of intentional misrepresentation are: (i) Misrepresentation by the defendant; (ii) Scienter; (iii) An intent to induce the plaintiff’s reliance on the misrepresentation; (iv) Causation (i.e., actual reliance by the plaintiff on the misrepresentation; (v) Justifiable reliance by the plaintiff on the misrepresentation; and (vi) Damages. QUESTION ID: T0004A Additional Learning

Question 22

Which of the following is an element of common law defamation?

A Falsity of the defamatory language

B The plaintiff is harmed financially

C Fault on the part of the defendant

D The defamatory language concerns the plaintiff

Answer 22

D

Defamatory language concerning the plaintiff is an element of common law defamation. At common law, the following elements were required for a prima facie case of defamation: (i) Defamatory language on the part of the defendant; (ii) Defamatory language “of and concerning” the plaintiff (i.e., identifying the plaintiff to a reasonable reader, listener, or viewer); (iii) Publication of the defamatory language by the defendant to a third person; and (iv) Damage to the reputation of the plaintiff. Falsity of the defamatory language does not need to be shown in an action for defamation at common law, nor does there need to be fault on the part of the defendant. The elements of falsity and fault are constitutionally required when the defamation refers to a public figure or involves a matter of public concern. Financial damage to the plaintiff is not an element of defamation. Rather, the plaintiff’s reputation must be damaged, although that may be presumed in some circumstances. QUESTION ID: T0001B Additional Learning

Question 23

The plaintiff cannot recover for a defamatory statement directed at a group of which she is a member:

A If the statement is directed at all members of a small group.

B If the statement is directed at some members of a small group.

C Regardless of who the statement is directed at and the size of the group.

D If the statement is directed at all members of a large group.

Answer 23

D

The plaintiff cannot recover when the statement is directed at all members of a large group. When the defamatory language refers to a large group without identifying any particular individual within that group, no member of that group may establish the requirement that the defamation be shown to be “of and concerning” the plaintiff. On the other hand, when the statement is directed to all members of a small group, each member may establish that the defamatory statement was made of and concerning him by alleging that he is a member of the group. Similarly, when the statement is directed at some members of a small group, the plaintiff can recover if a reasonable person would view the statement as referring to the plaintiff. QUESTION ID: T0007 Additional Learning

Question 24

Which invasion of privacy action may require a showing of actual malice to establish a prima facie case?

A Intrusion on a plaintiff’s affairs or seclusion

B Appropriation of a plaintiff’s picture or name

C Publication of facts placing a plaintiff in a false light

Answer 24

C

Publication of facts placing a plaintiff in a false light may require a showing of actual malice to establish a prima facie case of invasion of privacy. To establish a prima facie case of publication by a defendant of facts placing a plaintiff in a false light, the following elements must be proved: (i) Publication of facts about the plaintiff by the defendant placing the plaintiff in a false light in the public eye; (ii) The false light is something highly offensive to a reasonable person; and (iii) Actual malice by the defendant when the published matter is in the public interest. Intrusion on a plaintiff’s affairs or seclusion does not require a showing of actual malice to establish a prima facie case of invasion of privacy. To establish a prima facie case of intrusion on a plaintiff’s affairs or seclusion, the following elements must be proved: (i) An act of prying or intruding on the affairs or seclusion of the plaintiff by the defendant; (ii) The intrusion is highly offensive to a reasonable person; and (iii) The thing to which there is an intrusion or prying is private. Appropriation of a plaintiff’s picture or name does not require a showing of actual malice to establish a prima facie case of invasion of privacy. To establish a prima facie case for this branch, only one element need be proved: unauthorized use by a defendant of a plaintiff’s picture or name for the defendant’s commercial advantage. QUESTION ID: T0003C Additional Learning

Question 25

To establish a prima facie case for invasion of privacy for publication of facts that place a plaintiff in a false light, which of the following must be proved?

A Actual malice

B Publicity of the facts placing the plaintiff in a false light

C The false light must be highly offensive to the plaintiff

Answer 25

B

Publicity of the facts that place the plaintiff in a false light in the public eye is required to establish a prima facie case for invasion of privacy for false light publication. This requires more than mere publication in the defamation sense. It is not required that the false light be highly offensive to the plaintiff. Rather, the false light must be something that would be highly offensive to a reasonable person under the circumstances. Actual malice is also not required. Actual malice is required on the part of the defendant only when the published matter is in the public interest. QUESTION ID: T0014A Additional Learning

Question 26

“Actual malice” for purposes of the constitutional law of defamation is defined as __________ or __________.

A Knowledge that the statement was false, or at least negligence as to the truth of a statement

B Knowledge that the statement was false, or reckless disregard by the defendant as to the statement’s truth or falsity

C Knowledge that the statement was false, or ill will towards the plaintiff

Answer 26

B

Under the constitutional law of defamation, actual malice is defined as knowledge that the statement was false, or reckless disregard by the defendant as to the statement’s truth or falsity. Actual malice must be established by a public official or public figure to recover for defamation. Ill will towards the plaintiff does not establish actual malice for defamation purposes. Ill will or spite towards the plaintiff by the defendant is how malice was defined at common law, but this is not how the Supreme Court defines malice. Negligence by the defendant as to a statement’s truth or falsity is the minimum standard imposed by the Court on a private figure when the defamation involves a matter of public concern; “actual malice” is a higher standard. QUESTION ID: T0002B Additional Learning

Question 27

Which branch of invasion of privacy does not require that the conduct be highly offensive to a reasonable person?

A Intrusion on the plaintiff’s affairs or seclusion.

B Public disclosure of private facts about the plaintiff.

C Appropriation of the plaintiff’s picture or name.

D Publication of facts placing the defendant in a false light.

Answer 27

C

The four branches of invasion of privacy are: 1. Appropriation by the defendant of the plaintiff’s picture or name for the defendant’s commercial advantage; 2. Intrusion by the defendant into the plaintiff’s affairs or seclusion; 3. Publication by the defendant of facts placing the plaintiff in a false light; and 4. Public disclosures of private facts about the plaintiff by the defendant. Appropriation of the plaintiff’s picture or name does not require that the conduct be highly offensive to a reasonable person. To establish a prima facie case for this branch, only one element need be proved: Unauthorized use by the defendant of the plaintiff’s picture or name for the defendant’s commercial advantage. The defendant’s conduct need not be highly offensive to a reasonable person. For intrusion on the plaintiff’s affairs or seclusion, the intrusion must be something that would be highly offensive to a reasonable person. For publication of facts placing the defendant in a false light, the “false light” must be something that would be highly offensive to a reasonable person under the circumstances. For public disclosure of private facts about the plaintiff, the matter made public must be such that its disclosure would be highly offensive to a reasonable person. QUESTION ID: T0003 Additional Learning

Question 28

An absolute privilege for a defamatory statement in a judicial proceeding applies only if the statement:

A Was not abused through excessive publication

B Bears a reasonable relationship to the proceeding

C Was not made with malice

Answer 28

B

A speaker is absolutely privileged to make defamatory statements in a judicial proceeding as long as the statements bear a reasonable relationship to the proceeding. This privilege attaches to all aspects of the proceedings (e.g., statements made in open court, pretrial hearing, deposition, or in any of the pleadings or other papers in the case). This privilege is absolute and thus is not affected by a showing of malice or by a showing of excessive publication. QUESTION ID: T0012A Additional Learning

Question 29

Actual malice is defined for defamation purposes as:

A Knowledge that a statement was false or made with reckless disregard as to its truth or falsity

B Intentional disregard for the truth or falsity of a statement

C Knowledge that a statement was false and made with reckless disregard as to its truth or falsity

D Knowledge that a statement was false or unreasonable disregard as to its truth or falsity

Answer 29

A

For defamation purposes, actual malice is defined as knowledge that a statement was false or reckless disregard as to its truth or falsity. [New York Times v. Sullivan, 376 U.S. 254 (1964)] Actual malice is not defined as knowledge that a statement was false AND reckless disregard as to its truth or falsity. If either of these requirements is met, then actual malice will have been established. Actual malice does not require an intentional disregard for the truth or falsity of a statement. Rather, a reckless disregard will be enough to meet the test. Conversely, actual malice requires more than an unreasonable disregard as to its truth or falsity. The defendant must have subjectively entertained serious doubts as to the truthfulness of the statement. QUESTION ID: T0010B Additional Learning

Question 30

Which of the following is an element of intentional misrepresentation (fraud) but not an element of negligent misrepresentation?

A Scienter

B Damages

C Causation

D Justifiable reliance

Answer 30

A

Scienter is not required for negligent misrepresentation. “Scienter” is defined as making a false representation with knowledge that it was false or with reckless disregard as to its truth or falsity. The elements of intentional misrepresentation (fraud) are: 1. A misrepresentation by the defendant; 2. Scienter; 3. An intent to induce the plaintiff’s reliance on the misrepresentation; 4. Causation (i.e., actual reliance by the plaintiff on the misrepresentation); 5. Justifiable reliance by the plaintiff on the misrepresentation; and 6. Damages. Negligent misrepresentation requires the following elements to be proved: 1. Misrepresentation made by the defendant in a business or professional capacity; 2. Breach of duty toward the particular plaintiff; 3. Causation; 4. Justifiable reliance by the plaintiff on the misrepresentation; and 5. Damages. Justifiable reliance, causation, and damages must be shown for both intentional and negligent misrepresentation. QUESTION ID: T0004 Additional Learning

Question 31

__________ is an element of defamation at common law.

A Financial harm to the plaintiff

B Fault on the part of the defendant

C False defamatory language

D Publication

Answer 31

D

Publication is an element of defamation. At common law, the following elements were required for a prima facie case of defamation: (i) Defamatory language on the part of the defendant; (ii) Defamatory language “of and concerning” the plaintiff (i.e., identifying the plaintiff to a reasonable reader, listener, or viewer); (iii) Publication of the defamatory language by the defendant to a third person; and (iv) Damage to the reputation of the plaintiff. Neither false defamatory language nor fault on the part of the defendant are elements of defamation at common law. These elements are constitutionally required when the defamation refers to a public figure or involves a matter of public concern. Financial harm to the plaintiff is not an element of defamation. Rather, the plaintiff’s reputation must be damaged. QUESTION ID: T0001C Additional Learning

Question 32

_________ is a defense to all types of invasion of privacy actions.

A Truth

B Mistake

C Consent

Answer 32

C

Consent is a defense to an action for invasion of the right to privacy. Some states by statute require that the consent be in writing. Even with consent, however, the defendant may still be liable if he exceeds the consent granted. Truth is not a defense to most invasions of privacy actions; only a false light invasion of privacy action may be subject to truth as a defense. Mistake is not a valid defense to an action for invasion of the right to privacy, even mistake as to whether the consent was granted. QUESTION ID: T0015A Additional Learning

Question 33

__________ and __________ are elements of intentional misrepresentation but not elements of negligent misrepresentation.

A Justifiable reliance; misrepresentation in a business or professional capacity

B Causation; damages

C Scienter; intent to induce the plaintiff’s reliance on the misrepresentation

Answer 33

C

Scienter is not required for negligent misrepresentation. “Scienter” is defined as making a false representation with knowledge that it was false or with reckless disregard as to its truth or falsity. Intent to induce the plaintiff’s reliance on the misrepresentation is also an element of intentional, but not negligent misrepresentation. Causation, damages, and justifiable reliance are elements of both intentional and negligent misrepresentation. Misrepresentation in a business or professional capacity is an element of negligent misrepresentation, not intentional. The elements of intentional misrepresentation (fraud) are: 1. A misrepresentation by the defendant; 2. Scienter; 3. An intent to induce the plaintiff’s reliance on the misrepresentation; 4. Causation (i.e., actual reliance by the plaintiff on the misrepresentation); 5. Justifiable reliance by the plaintiff on the misrepresentation; and 6. Damages. Negligent misrepresentation requires the following elements to be proved: 1. Misrepresentation made by the defendant in a business or professional capacity; 2. Breach of duty toward the particular plaintiff; 3. Causation; 4. Justifiable reliance by the plaintiff on the misrepresentation; and 5. Damages. QUESTION ID: T0004B Additional Learning

Question 34

Under the constitutional law of defamation, actual malice is satisfied by __________.

A Negligence as to the truth of a statement

B Reckless disregard for the truth of a statement

C Ill will towards the plaintiff

Answer 34

B

Under the constitutional law of defamation, actual malice is satisfied by reckless disregard for the truth of a statement. Actual malice must be established by a public official or public figure to recover for defamation, and it was defined by the Supreme Court as (i) knowledge that a statement was false or (ii) reckless disregard by the defendant as to the statement’s truth or falsity. Ill will towards the plaintiff does not establish actual malice for defamation purposes. Ill will or spite towards the plaintiff by the defendant is how malice was defined at common law, but this is not how the Supreme Court defines malice. Negligence by the defendant as to a statement’s truth or falsity is the minimum standard imposed by the Court on a private figure when the defamation involves a matter of public concern; “actual malice” is a higher standard. QUESTION ID: T0002A Additional Learning

Question 35

For the tort of defamation, inducement means:

A A statement standing alone is defamatory

B Proving additional facts to establish a statement as defamatory

C The motivation for making a defamatory statement

D Establishing the meaning of words to prove that a statement is defamatory

Answer 35

B

For the tort of defamation, inducement means proving additional facts to establish a statement as defamatory. Sometimes a statement is defamatory on its face. Other times, a statement is actionable via inducement, in which the plaintiff pleads and proves additional facts to show the defamation. Inducement does not mean a statement standing alone is defamatory. A statement is defamatory standing alone when it is defamatory on its face without additional facts as inducement. Inducement also does not mean establishing the meaning of words to prove that a statement is defamatory. This process is known as innuendo. When a statement is not defamatory on its face, a plaintiff may prove additional facts as inducement and establish the defamatory meaning by innuendo. Inducement for defamation purposes does not mean the motivation for making a defamatory statement, although that is more like the ordinary meaning of the word. QUESTION ID: T0006A Additional Learning

Question 36

If a defamation involves private figures but a matter of public concern:

A Punitive damages are not recoverable

B Actual malice must be proved

C There can be no liability without fault

Answer 36

C

Where defamation involves nonpublic figures but a matter of public concern, there can be no liability without fault—if not actual malice, at least negligence. Actual malice need NOT be proved in these circumstances. It is enough that the plaintiff show that the defendant permitted a false statement to appear at least through negligence as to its truth or falsity. Punitive damages are recoverable but only under certain circumstances. Even if the plaintiff cannot prove an “actual injury,” he can recover if he can show that the defamatory statement was published with knowledge of its falsity or with reckless disregard for its truth, i.e., actual malice. QUESTION ID: T0002C Additional Learning

Question 37

Which of the following is correct with regard to interference with business relations?

A A plaintiff has a cause of action for interference with an existing contract only

B A plaintiff can recover only economic damages

C A defendant is liable only for intentional interference

Answer 37

C

A defendant is liable only for intentional interference with regard to interference with business relations. The defendant must have intended to interfere with the existing or prospective contractual relationships of the plaintiff. Most courts do not permit recovery for negligent interference with contract absent some independent tort like negligent misrepresentation. It is not true that a plaintiff has a cause of action for interference with an existing contract only. A plaintiff has a cause of action not only for interference with an existing contract but also for interference with probable future business relationships for which the plaintiff has a reasonable expectation of financial benefit. Also, a plaintiff can recover more than just economic damages. The plaintiff may also recover mental distress damages and punitive damages in appropriate cases. QUESTION ID: T0005C Additional Learning

Question 38

With regard to defamation, “actual injury” includes:

A Economic damages, mental distress or humiliation damages, reputation damages, and punitive damages

B Economic damages, reputation damages, and punitive damages

C Economic damages and presumed damages

D Economic damages, mental distress or humiliation damages, and reputation damages

Answer 38

D

For purposes of defamation law, “actual injury” includes economic damages, mental distress damages, and reputation damages. Damages for a defamation claim by a private person on a matter of public concern are based on the “actual injury” sustained by the plaintiff. This term is not limited to economic loss or out-of-pocket loss, but may include humiliation damages and mental distress damages as well as damage to reputation. There must be competent evidence of actual injuries, however; presumed damages are not permitted. Punitive damages are not within the definition of “actual injury,” and may be recovered only if malice is shown. QUESTION ID: T0011A Additional Learning

Question 39

to interfere with the business relationship between the plaintiff and a third party.
Which of the following factors is not considered in determining whether a privilege exists?

A The type of damages suffered by the plaintiff.

B The means of persuasion used.

C The type of business relationship interfered with.

D The defendant’s relationship with the third party.

Answer 39

A

The type of damages suffered by the plaintiff is not considered in determining whether a privilege exists in an action for interference with business relations. The plaintiff must prove actual damages from the interference, and may recover mental distress damages and punitive damages in appropriate cases, but the type of damages suffered by the plaintiff is not related to the privilege factors. Factors that are considered in determining whether a privilege exists include: (i) the type of business relationship interfered with, (ii) the means of persuasion used to trigger the interference, (iii) the defendant’s relationship with the third party, and (iv) whether the defendant is a competitor of the plaintiff. QUESTION ID: T0017 Additional Learning

Question 40

Which of the following slanderous statements about the plaintiff would require pleading and proof of special damages?

A He is incapable of running his business

B He is guilty of assault

C He is cruel to his family

Answer 40

C

Slander not falling into one of the four slander per se categories requires the pleading and proof of special damages (i.e., pecuniary loss). Those four categories are: (i) A defamatory statement reflecting adversely on one’s business or professional abilities; (ii) A defamatory statement that one is presently suffering from a loathsome and communicable disease; (iii) A defamatory statement that one is or was guilty of a crime involving moral turpitude; and (iv) A defamatory statement imputing unchaste behavior to a woman. A defamatory statement saying one is cruel to his family does not constitute slander per se because it does not fall into one of the above categories, and so would require pleading and proof of special damages. A defamatory statement saying that the plaintiff is incapable of running his business does invoke slander per se. A defamatory statement adversely reflecting on one’s abilities in his business, trade, or profession is actionable without pleading or proof of special damages. A defamatory statement saying that the plaintiff is guilty of assault does invoke slander per se. A defamatory statement that one is or was guilty of a crime involving moral turpitude is actionable without pleading or proving special damages. These crimes include most common law crimes, such as assault, larceny, and perjury. QUESTION ID: T0009B Additional Learning

Question 41

If a newspaper publishes a quotation from an individual and it is defamatory, the newspaper will be known as a:

A Republisher

B Secondary publisher

C Primary publisher

Answer 41

C

A newspaper will be known as a primary publisher if it publishes a defamatory statement made by an individual. A newspaper that carries a defamatory message is viewed as a primary publisher and responsible for that message to the same extent as the author or speaker. The newspaper will not be known as a secondary publisher if it repeats and publishes a defamatory statement made by an individual. A secondary publisher is one responsible only for disseminating materials that might contain defamatory matter, such as a newspaper vendor. The newspaper also will not be known as a republisher. A republisher is one who repeats a defamatory statement from a primary publisher (e.g., a TV news show that quotes a defamatory statement from a newspaper). QUESTION ID: T0008B Additional Learning

Question 42

For intentional misrepresentation, a defendant __________.

A Carries a higher duty if she holds a fiduciary relationship with the plaintiff

B Cannot be liable for misrepresenting an opinion

C Must misrepresent a present material fact, not a past one

Answer 42

A

For intentional misrepresentation, a defendant carries a higher duty if she holds a fiduciary relationship with the plaintiff. Usually there is no general duty to disclose a material fact or opinion imposed on someone, so that a failure to disclose will not constitute a misrepresentation. A few exceptions exist, however. If a defendant stands in a fiduciary relationship to a plaintiff, she may have a duty of disclosure. Similarly, if a defendant is selling real property and knows material information that the plaintiff is unaware of and cannot reasonably discover, the defendant has a duty of disclosure. Intentional misrepresentation may arise if the defendant misrepresents either a material past or present fact; liability is not limited to representations of present facts. A defendant may be liable for intentionally misrepresenting an opinion. This arises in instances where the knowledge or position of the defendant makes the plaintiff’s reliance on the opinion justified. QUESTION ID: T0016A Additional Learning

Question 43

An invasion of privacy may be shown even without highly offensive conduct through __________

A Appropriation of a person’s picture or name for commercial purposes

B Intrusion into seclusion

C Public disclosure of private facts

D Publication of facts placing plaintiff in a false light

Answer 43

A

Appropriation of a person’s picture or name for commercial purposes does not require highly offensive conduct to constitute an invasion of privacy. The four branches of invasion of privacy are: (i) Appropriation by a defendant of a plaintiff’s picture or name for the defendant’s commercial advantage; (ii) Intrusion by a defendant into a plaintiff’s affairs or seclusion; (iii) Publication by a defendant of facts placing a plaintiff in a false light; and (iv) Public disclosure of private facts about a plaintiff by a defendant. To establish a prima facie case for the first branch, only one element need be proved: unauthorized use by the defendant of a plaintiff’s picture or name for the defendant’s commercial advantage. The defendant’s conduct need not be highly offensive to a reasonable person. Intrusion into seclusion requires that the intrusion be highly offensive to a reasonable person to constitute an invasion of privacy. Public disclosure of private facts requires that the act of disclosure of matters to the public be highly offensive to a reasonable person. Publication of facts placing plaintiff in a false light requires that the false light be something that is highly offensive to a reasonable person. QUESTION ID: T0003A Additional Learning

Question 44

Which of the following is true in most states regarding the damages rules for libel at common law?

A Damages are not presumed unless the libel falls into one of the “per se” categories

B General damages must be proved

C Special damages need not be established

Answer 44

C

The damages rules for libel at common law hold that special damages need not be established, because in most jurisdictions general damages are presumed by law for all libel actions. Hence, damages are presumed even if the libel does NOT fall into one of the “per se” categories; those govern the availability of presumed damages for slander. Libel does not require that general damages must be proved. In most jurisdictions, general damages are presumed by law for libel. QUESTION ID: T0009A Additional Learning

Question 45

Which of the following statements is true with regard to interference with business relations?

A The interference may be intentional, reckless, or negligent.

B Damages are presumed if the interference is intentional and unprivileged.

C An existing contract between the plaintiff and a third party is not always required.

D A defendant is not privileged to interfere even if it is a competitor of the plaintiff.

Answer 45

C

An existing contract between the plaintiff and a third party is not always required; the plaintiff also has a cause of action for interference with probable future business relationships for which the plaintiff has a reasonable expectation of financial benefit. To establish a prima facie case for interference with business relations, the plaintiff must show: 1. Existence of a valid contractual relationship between the plaintiff and a third party, or a valid business expectancy of the plaintiff; 2. The defendant’s knowledge of the relationship or the expectancy; 3. Intentional interference by the defendant that induces a breach or termination of the relationship or the expectancy; and 4. Damage to the plaintiff. Damages are NOT presumed if the interference is intentional and unprivileged. The plaintiff must prove actual damages from the interference. A defendant MAY be privileged to interfere if it is a competitor of the plaintiff. Interference with the plaintiff’s prospective business relationships is likely to be privileged if the defendant is a competitor of the plaintiff pursuing those same prospective customers. The statement that the interference may be intentional, reckless, or negligent is false. The defendant must have intended to interfere with the existing or prospective contractual relationship of the plaintiff. QUESTION ID: T0005 Additional Learning