Defamation and Privacy Flashcards
What are the elements of defamation?
1) ∆ must make a defamatory stmt that identifies the π 2) there must be publication of that stmt AND 3) damages
- a stmt is defamatory if it tends to adversely effect reputation
- w/ stmts of opinion, cts try to distinguish btwn an opinion that suggests a factual basis (defamatory) and a purely subjective opinion
Who gets presumed damages in defamation cases?
libel πs and slander per se πs
What are the 4 slander per se categories?
i) stmts dealing w/ π’s business or profession ii) a stmt that π committed a serious crime iii) stmt that imputes unchastity to a woman iv) stmt that π suffers from a loathsome disease i.e leoprsy
What happens if you are dealing with slander not per se?
no presumed damages. π has to show economic; social harm is not good enough.
What is the NY distinction wrt presumed damages in defamation cases?
If you are dealing with a libel case that does NOT fall w/in the 4 slander categories AND the defamatory stmts are not apparent then damages are not presumed.
What are the 3 affirmative defenses for defamation?
- Express and implied consent
- truth
- privileges - absolute and qualified
What are the absolute and qualified privilege defenses to defamation?
absolute privilege for stmts made to your spouse and for gov’t officers engaged in the conduct of their official work (also covers lawyers and witnesses) - immunized from defamation liability for stmts made in court or pleadings
qualified privilege - applies in an open category of cases when there is a public interest in encouraging candor. 2 conditions must be met b4 you can assert this defense i) the stmt must be made in good faith and ii) you have to confine yourself to matters that are relevant
What are the two extra elements for defamation in a public concern case?
i) π must prove that the stmt made is factually inaccurate and 2) π has to show fault - it was something other than an honest mistake
What are the 4 CL privacy torts
- appropriation
- tort of intrusion
- false light
- tort of disclosure
What is appropriation?
When ∆ uses π’s name or image for a commercial purpose.
*there is a newsworthiness exception
What is the tort of intrusion?
an invasion of π’s seclusion in a manner that is highly offensive to an average person.
*the π has to be in a place where there is a reasonable expectation of privacy
What is false light invasion of privacy?
WIDESPREAD dissemination of a material falsehood about π that would be highly offensive to an average person.
*the subject matter of false light is broader than that of defamation (i.e. mischaracterization of your belief can be false light BUT NOT defamatory)
What is the tort of disclosure?
WIDESPREAD dissemination of confidential information about π that is highly offensive to an average person.
- there is a newsworthy exception
- the news must be a truly private fact - semi-private/quasi-private doesn’t count
What are the affirmative defenses for the privacy torts?
Consent is a defense to all 4 privacy torts
The absolute and qualified privileges are defenses for false light and tort of disclosure.
