Defamation, Invasion of Privacy and Business Torts

Question 1

Defamation

Answer 1

A plaintiff may bring an action for defamation if the defendant’s defamatory language:

Is of or concerning the plaintiff;
Is published to a third party who understands its defamatory nature; and
Damages the plaintiff’s reputation.

Question 2

Defamatory Language

Answer 2

Language is defamatory if it harms a person’s reputation by diminishing respect, esteem, or goodwill toward the plaintiff or by deterring others from associating with the plaintiff.

Question 3

Publication - to a third party

Answer 3

Publication of a defamatory matter is the intentional or negligent communication of such matter to a third party (i.e., to someone other than the person being defamed) who understands its defamatory nature.

Question 4

Public Official

Answer 4

A public official is someone in the hierarchy of government employees who has or appears to have substantial responsibility for or control over the conduct of government affairs. Candidates for public office are also treated as public officials.

Question 5

Public Figure

Answer 5

There are two types of public figures:

i) General-purpose public figures are defined as plaintiffs who occupy positions of such persuasive power and influence in society that they are deemed public figures for all purposes.

ii) Limited-purpose or special-purpose public figures are defined as plaintiffs who thrust themselves to the forefront of particular public controversies to influence the resolution of the issues involved.

Question 6

Falsity - Matters of Public Concern

Answer 6

If either (1) the defamatory statement relates to a matter of public concern or (2) the plaintiff is a public official or a public figure, then the plaintiff must prove that the defamatory statement is false as part of a prima facie case.

Question 7

Fault - Public Official or Public Figure

Answer 7

If the plaintiff in a defamation action is either a public official or a public figure, then the plaintiff is required to prove that the defendant acted with actual malice; that is, he either had knowledge that the statement was false or acted with reckless disregard as to the truthfulness of the statement.

Question 8

Fault - Private Person/Matter of Public Concern

Answer 8

If the plaintiff in a defamation action is a private person and the defendant’s statement involves a matter of public concern, then the plaintiff is constitutionally required to prove that the defendant acted with fault—either negligence or actual malice

Question 9

Libel

Answer 9

Defamation by words written, printed, or otherwise recorded in permanent form is libel.

Question 10

Libel Per Quod

Answer 10

In some jurisdictions, under the doctrine of libel per quod, if the nature of the defamatory statement requires proof of extrinsic facts to show that the statement is defamatory, then the plaintiff must prove either special damages or that the statement fits into one of the four categories of statements that satisfy the requirements of slander per se.

Question 11

Slander

Answer 11

Defamation by spoken word, gesture, or any form other than libel is slander. To recover for slander, the plaintiff must prove special damages or slander per se.

Question 12

Slander - Special Damages

Answer 12

Special damages require the plaintiff to prove that a third party heard the defendant’s defamatory comments and acted adversely to the plaintiff.

Question 13

Slander Per Se

Answer 13

Under the doctrine of slander per se, a plaintiff alleging slander need not prove special damages if the statement defaming the plaintiff fits into one of four categories. These categories comprise accusing the plaintiff of (1) committing a crime, (2) conduct reflecting on the plaintiff’s lack of fitness to conduct his business, trade, or profession, (3) having a loathsome disease, or (4) sexual misconduct.

Question 14

Misappropriation of the Right to Publicity (Invasion of Privacy)

Answer 14

To recover for misappropriation of the right to publicity, the plaintiff must prove:

i) The defendant’s appropriation of the plaintiff’s name, likeness, or identity was unauthorized;

ii) The appropriation was for the defendant’s advantage—commercial or otherwise;

iii) The plaintiff did not consent to the appropriation; and

iv) The appropriation resulted in injury to the plaintiff.

Question 15

Intrusion Upon Seclusion (Invasion of Privacy)

Answer 15

To recover for intrusion upon seclusion, a plaintiff must prove that:

i) The defendant intentionally intruded, physically or otherwise, into the plaintiff’s private affairs, solitude, or seclusion; and

ii) The intrusion would be highly offensive to a reasonable person.

Question 16

Placing the Plaintiff in a False Light (Invasion of Privacy)

Answer 16

To recover for false light, the plaintiff must prove that the defendant:

i) Made public facts about the plaintiff that placed the plaintiff in a false light; and

ii) Such false light would be highly offensive to a reasonable person.

Most jurisdictions also require that the plaintiff prove actual malice by the defendant.

Question 17

Public Disclosure of Private Facts (Invasion of Privacy)

Answer 17

To recover for public disclosure of private facts, the plaintiff must show that:

i) The defendant gave publicity to a matter concerning the private life of another; and

ii) The matter publicized is of a kind that:

        a)         Would be highly offensive to a reasonable person; and

        b)         Is not of legitimate concern to the public.

Question 18

Intentional Misrepresentation

Answer 18

A prima facie case of intentional misrepresentation (also called “fraud” or “deceit”) is established by proof that:

The defendant knowingly or recklessly misrepresented a material fact, opinion, intention, or law with the intent to induce the plaintiff’s reliance; and
The plaintiff justifiably relied on the defendant’s misrepresentation and suffered damages as a result.

Question 19

Opinion (Defendant’s False Representation)

Answer 19

A false statement of opinion does not give rise to liability unless:

i) The parties are in a fiduciary or confidential relationship; or

ii) The defendant claims to have expertise or other knowledge not accessible to the plaintiff and offers the opinion to provide the plaintiff with a basis for reliance.

Question 20

Puffery

Answer 20

Puffery is broad, exaggerated statements as to the quality of an item (e.g., seller of a bond states, “It’s the safest investment”).

Question 21

Nondisclosure

Answer 21

There generally is no duty to disclose a material fact or opinion to the other party. However, there may be an affirmative duty to disclose a fact when the plaintiff is:

i) In a fiduciary relationship with the defendant;

ii) Likely to be misled by statements previously made by the defendant (partial disclosure); or

iii) Under a mistaken belief about a basic fact of the transaction that the defendant is aware of and should disclose based on their relationship, the customs of the trade, or other objective circumstances.

Question 22

Negligent Misrepresentation

Answer 22

The elements of negligent misrepresentation are:

The defendant, in the course of business, profession, or employment or in a transaction in which the defendant has a pecuniary interest:
Provided false information to guide the plaintiff;
Because of the defendant’s failure to use reasonable care in obtaining or communicating the information; and
The plaintiff reasonably relied upon the information; and
This reliance caused the plaintiff to suffer pecuniary loss.

Question 23

Intentional Interference with a Contract

Answer 23

To establish a prima facie case for intentional interference with a contract, the plaintiff must prove that:

i) A valid contract existed between the plaintiff and a third party;

ii) The defendant knew of the contractual relationship;

iii) The defendant intentionally interfered with the contract, causing a breach; and

iv) The breach caused damages to the plaintiff.

Question 24

Nature of the Contractual Relationship

Answer 24

In the majority of states, the contract in question must be valid and not terminable at will.

Question 25

Privilege of Fair Competition

Answer 25

Under the privilege of fair competition, a defendant who intentionally causes a third person to either (1) not enter into a contractual relationship or (2) terminate an existing at-will contract is not liable for improper conduct if: i) The contract concerns a matter in which the plaintiff and defendant are competitors; ii) The defendant does not use wrongful means; iii) The defendant does not create or continue an unlawful restraint of trade; and iv) The defendant’s purpose is, at least in part, to advance his own interest

Question 26

Interference with a Prospective Economic Advantage

Answer 26

A defendant may be liable for intentionally interfering with a prospective business relationship or economic benefit between the plaintiff and a third party, even in the absence of an existing contract.

Question 27

Theft of Trade Secrets

Answer 27

To be liable for theft of trade secrets, the plaintiff must own a valid trade secret (i.e., information that provides a business advantage) that is not generally known. The owner of the secret must take reasonable precautions to protect the secret, and the defendant must have taken the secret by improper means.

Question 28

Trade Libel

Answer 28

To recover for trade libel, the plaintiff must prove: i) Publication; ii) Of a false and derogatory statement; iii) With malice; iv) Relating to the plaintiff’s title to his business property, the quality of his business, or the quality of its products; and v) Causing special damages as a result of interference or damage to business relationships.

Question 29

Slander of Title

Answer 29

To recover for slander of title, the plaintiff must prove: i) Publication; ii) Of a false statement; iii) Derogatory to the plaintiff’s title; iv) With malice; v) Causing special damages; vi) As a result of diminished value in the eyes of third parties.

Question 30

Malicious Prosecution

Answer 30

A person is liable for malicious prosecution when: i) He intentionally and maliciously institutes, pursues, or causes to be instituted or pursued; ii) For an improper purpose; iii) A legal action that is brought without probable cause; and iv) That action is dismissed in favor of the person against whom it was brought.

Question 31

Abuse of Process

Answer 31

To recover for abuse of process, the plaintiff must prove: i) A legal procedure set in motion in proper form; ii) That is perverted to accomplish an ulterior motive; iii) A willful act perpetrated in the use of process that is not proper in the regular conduct of the proceeding; iv) Causing the plaintiff to sustain damages.