Dignitary Torts

Question 1

What is the tort of “appropriation”?

Answer 1

Appropriation is the use of P’s name or likeness for commercial purposes (e.g. promotion or advertisement) without P’s consent

*NOTE the newsworthy exception: no liability for the use of P’s name or likeness for the purpose of reporting news.

Question 2

What is the tort of “false light”?

Answer 2

False light is widespread publication of a falsehood or material misrepresentation about P that would be highly offensive to a reasonable person.

• Includes mischaracterization of P’s view or conduct
• if it is a matter of public concern D must have actual malice or reckless disregard for the truth of the matter publicized.
• no newsworthiness exception

Question 3

What is the tort “intrusion upon seclusion”?

Answer 3

An intrusion upon P’s private affairs in a manner that would be highly offensive to a reasonable person.

Question 4

What are the two elements of “intrusion upon seclusion”?

Answer 4

1. P must have a reasonable expectation of privacy (no REP in public)
2. Intrusion must be highly offensive (e.g., peeping, eavesdropping, or using hidden cameras in P’s domain)
   * no newsworthiness exception

Question 5

What is the tort of disclosure?

Answer 5

The public disclosure of P’s private information.

Question 6

What are the elements of disclosure?

Answer 6

Disclosure must be:

1. Highly offensive to a reasonable person
   (public activities are not objectionable ex: D announces that mayor frequents strip clubs because that occurs in public).
2. Publicized - made available to a public audience.
   * Newsworthiness exception: no liability if private acts are newsworthy.

Question 7

What is the tort of defamation?

Answer 7

A statement concerning P, made by D to a third person, that is harmful to P’s reputation.

*if the statement involves a matter of public concern or a public figure or official, falsity and fault may be required.

Question 8

What are the 5 elements of defamation?

Answer 8

1. Defamatory statement - adversely affects P’s reputation (must be based on specific facts)
2. concerning P (must be reasonably understood that the statement concerns a living P or a very small group of Ps)
3. publication - stmt must be intentionally or negligently made to a third person
4. harmful to P’s reputation
5. Falsity and fault - only required if stmt involves a matter of public concern or a public figure or a public official.

Question 9

What liability does a republisher of a defamatory stmt face?

Answer 9

Same as if they were the original publisher.

Question 10

Who is a public figure for defamation purposes?

Answer 10

One who has pervasive fame or notoriety, or who voluntarily assumes a central role in a public matter.

Question 11

What is a matter of public concern?

Answer 11

A statement that relates to a community interest or concern (includes national interests).

Question 12

If defamation involves a matter of public concern, P must also prove what two elements?

Answer 12

1. Falsity - P must prove the statement was false.
2. Fault - P must prove the D was at fault; standards differ for public vs. private figures; actual malice standard applies to a public official or figure meaning knowledge of the stmt’s falsity or reckless disregard to whether it was false); if a private figure about a public concern, it’s just a negligence standard.

Question 13

What will the damages turn on in a defamation suit?

Answer 13

Whether the stmt constitutes libel, slander, or slander per se.

Question 14

What is libel and what are the damages requirements?

Answer 14

Libel is a written defamatory statement. Note: TV and radio broadcasts are considered libel.

Damages: P does not have to prove special damages.

Question 15

What is slander and what are the damages requirements?

Answer 15

Slander is a spoken defamatory statement.

Damages: Plainitff must prove special damages (a specific economic loss) unless the stmt constitutes slander per se

Question 16

What is slander per se?

Answer 16

A defamatory statement that either:

(a) concerns and adversely reflects on P’s business or professional reputation
(b) claims that P has a loathsome disease
(c) claims that P committed a crime of moral turpitude; or
(d) imputes a woman’s chastity

Damages: no special damages requirement.

Question 17

What are available defenses to defamation?

Answer 17

Consent, truth, and privilege

consent - P may consent to an organization investigating her and sharing its findings with potential employers

Question 18

What are the two kinds of privilege in the defense to a defamation claim?

Answer 18

1. absolute - protects stmts by govt officials in their official capacity
2. qualified privilege - D’s liability for defamatory statements is limited if the purpose of the speech is to promote truthfulness and/or related to fair comment and criticism (e.g. letter of recommendation, employment reference, book review, accurate reports of public proceedings).

Question 19

What is the tort of malicious prosecution?

Answer 19

Arises when D initiates a frivolous charge or claim against P with improper purpose (e.g., filing a false police report).

Question 20

What are the 5 elements of malicious prosecution?

Answer 20

1. D commenced a prior criminal or civil legal proceeding against P (note - prosecutors are immune)
2. proceeding terminated in P’s favor
3. no probable cause for the original proceeding (meaning D knew P was not guilty (criminal) or liable (civil) or had insufficient facts to reasonably believe in P’s guilt or fault)
4. D had an improper purpose in initiating the proceeding
5. Damages

Question 21

What is the tort “abuse of process”?

Answer 21

it arises when the D uses the legal system as an ulterior purpose to threaten or act against P.

Question 22

What are the elements of abuse of process?

Answer 22

1. wrongful use of process for an ulterior purpose to threaten or act against P
2. definite act or threat against P to accomplish an ulterior purpose