Torts MBE Flashcards
Publication
Communication to at least one other person who UNDERSTANDS it. (e.g. if published in a foreign language, it must be proven that the person understood the words)
- Intent to PUBLISH is the requisite intent & each repetition is a separate publication
- REPUBLISHERS will be held liable on the same test even if they say they don’t believe it
Publicity
“Widespread dissemination” (in the context of privacy torts)
Needed for “false light” and “public disclosure”
Secondary Publishers
Liability for defamation
One who is responsible for disseminating materials that may contain defamatory material (e.g. vendors of a newspaper)
Test: Liable ONLY if they knew or should have known of the defamatory content
Defamation
Elements: A defamatory statement, of or concerning the plaintiff, that is published and causes damage to the P’s reputation.
- Defamatory Statement: tends to harm the reputation (does not need to be believed). If not defamatory on its face, P must plead add’l facts= “Inducement & innuendo”
- Of or concerning P. (A) there are special rules for groups. (B) the P must be living– you can defame dead people all you want. (C) If the statement does not expressly refer to the P, plead colloquium (add’l facts) to show reasonable person realizes it refers to the P
- Published: communicated to at least one other person who understood it
- Damage to reputation: presumed in certain cases. (Presumed in libel on MBE, but not in NY, where if the statement is not defamatory on its face, it must fall into 1 of the 4 per se categories.) Presumed in slander per se. If none of these categories, special damages (pecuniary harm) must be pled.
Defamatory Language (element 1)
A statement that adversely affects the P’s reputation
- Opinion language can be actionable if it appears to be based on specific facts & the factual allegations themselves would be defamatory (e.g in sexual abuse of sports players, coach investigates and then says “I participated in investigation & I believe assistant and think the Ps are all liars and made allegations for $$”)
- If the language is NOT defamatory ion its face: plead add’l facts as “inducement” to establish defamatory meaning by “innuendo.”
Slander per se
No need to show special (pecuniary) damages for statements:
- Adversely reflecting on P’s business conduct
- That P is guilty of a serious crime or a crime of moral turpitude (violent or dishonest crimes always count. Excluded are victimless crimes, petty offenses, technical crimes)
- Impugning a women’s chastity (aka virginity. any allegation of sexual activity will count).
- That P has a “loathsome disease” (e.g. leprosy)
*In NY, if a libelous statement is not defamatory on its face, these categories apply to determine whether special damages must be pled
Libel per se
Applies only in NY! Applies only if the libelous statement is not defamatory on its face. If not defamatory on its face, but it falls into one of the 4 slander per se categories (business conduct, serious crime, chastity, or loathsome disease), then it is still libel per se and there is no need for special damages
Constitutional Defamation
Step 1: Is this a matter of public concern? (Is it “newsworthy?”) If, yes = “constitutional defamation” (make harder to win b/c don’t want to chill public debate)
4 Requirements:
1. Defamatory –> Harm reputation (impugns a positive trait)
2. Of or concerning P (again diff rules for groups)
3. “Published” –> requiring intent to publish/ negligence in publishing
4. FALSITY. Make harder to win by requiring Plaintiff to prove falsity rather than D using as aff defense
(then)
If (1) a public figure: must prove “actual malice”
If (2) a private figure: must prove negligence and actual injury (not limited to pecuniary damages)
Affirmative Defenses to Defamation
- Consent
- Truth (Note the burden to prove truth falls to the D)
- Privileges (Absolute and conditional)
Absolute Privileges for Defamation
- Spouses
- Officers of the 3 branches of Gov’t acting w/in the scope of employment
(The judicial context is the most important: Trial communications cannot be used against you in another lawsuit. However, pre-trial communication is conditionally, not absolutely privileged)
Conditional Privileges for defamation
When there is a Public interest in encouraging candor:
(A) Recommendations/ references,
(B) statements made to police during investigations
(C) Pretrial communications (during trial = absolute. Note there is a trial once a case has been filed. Prep for trial is still pre-trial)
Test/ conditions: (1) Statement may not be made w/ actual malice, (2) must be relevant/ confined to relevant material
4 Privacy Torts
- Appropriation: D uses P’s name or image for a commercial purpose
- Intrusion: Invasion of P’s seclusion in a way that is highly offensive to the avg person (= Core privacy. Exam Warning: must be in a place w/ a reasonable expectation of privacy. E.g. wiretapping or surveilling the home)
- False Light: (the tort of spreading false & vicious gossip)
- Disclosure: True gossip
**NY DISTINCTION: New York ONLY recognizes appropriation
What are the two ways in which we make defamation harder to prove in matters of public concern? (Constitutional defamation)
- Burden is on P to prove falsity, rather than on D
- P must demonstrate culpability/ fault. I.e. if a public figure, P must show that D defamed KNOWING it was false or w/ reckless disregard of the truth/ falsity = “constitutional malice.” (NY = Times v. Sullivan?) If it’s a private figure, negligence is enough. (“did they act reasonably to verify the information?)
Appropriation
MBE = Common law= D uses P’s name or image for a commercial purpose. (Generally, ads)
2 Exam Cautions: (1) Newsworthiness exception: watch out for the 1st Amendment; (2) This is not limited to celebrities. They can’t take my picture when I’m in the park and use it to sell shampoo
** NY DISTINCTION: This is the ONLY privacy tort recognized in NY. And it’s protected by STATUTE. The cause of action would pass to the estate
Intrusion into P’s affairs/ seclusion
The invasion of P’s seclusion in a way that is highly offensive to the average person
