harm to economic and dignitary interests

Question 1

defamation elements

Answer 1

1) A defamatory statement that specifically identifies the plaintiff

2) Published to a third party

3) Falsity of the defamatory language

4) Fault on the part of the defendant

5) Damage to the plaintiff’s reputation

Question 1

A defamatory statement is

Answer 1

one tending to adversely affect one’s reputation.

A statement of opinion is actionable only if it appears to be based on specific facts, and an express allegation of those facts would be defamatory.

Name-calling is insufficient.

Question 2

implied defamation

Answer 2

If the statement is not defamatory on its face, the plaintiff may plead additional facts as “inducement” to establish defamatory meaning by “innuendo.”

Question 3

defamation - living person requirement

Answer 3

Any living person may be defamed. Defamation of a deceased person is not actionable.

In a limited sense, a corporation, unincorporated association, or partnership may be defamed (for example, by remarks as to its financial condition, honesty, integrity, etc.).

Question 4

defamation - colloquium

Answer 4

If the statement does not refer to the plaintiff on its face, extrinsic evidence may be offered to establish that the statement refers to the plaintiff. This is known as pleading “colloquium.”

Question 5

group defamation - who has cause for action?

Answer 5

statement refers to all members of SMALL group - each member may establish that the statement specifically identifies them by alleging that they are a group member

statement refers to some members of SMALL group - plaintiff can recover if a reasonable person would view the statement as referring to the plaintiff.

statement is about LARGE group - no member can prove that the statement specifically identifies them

Question 6

defamation - when is statement a publication?

Answer 6

to a third person who understands it.

either intentionally or negligently.

It is the intent to publish, not the intent to defame, that is the requisite intent.

Each repetition is a separate publication (, for magazines, newspapers, etc., most states have adopted a “single publication” rule under which all copies are treated as one publication.)

Question 7

who may be liable for defamation

Answer 7

Primary publishers - liable to the same extent as the author or speaker.

One who repeats a defamation - liable on the same general basis as the primary publisher (even if she states the source or makes it clear that she does not believe the defamation).

selling papers or playing audio files - secondary publisher, liable only if he knows or should know of the defamatory content.

*Under a federal statute, an Internet service provider is not treated as a publisher when a user of its service posts defamatory content.

Question 8

defamation - must P prove statement false?

Answer 8

traditional common law - P did NOT have to prove falsity (unless constitutionally obligated)

Many states - require P to prove falsity

Question 9

defamation - does status of plaintiff matter to degree of fault?

Answer 9

Traditionally - public figure vs. private person determined degree of fault

Majority - showing of fault on part of D in all cases, regardless of status

Question 10

defamation - P is public official/figure

Answer 10

Under the New York Times v. Sullivan rule, actual malice (knowledge of falsity or reckless disregard) must be proved in defamation cases brought by public officials and public figures.

A person becomes a “public figure” by achieving pervasive fame or notoriety or by voluntarily assuming a central role in a particular public controversy.

Question 11

defamation - P is private person and matter is of public concern

Answer 11

Under Gertz v. Welch - only negligence regarding falsity must be proved.

Question 12

defamation - P is private person and matter is NOT of public concern

Answer 12

constitutional restrictions do not apply

(but note that many states require a showing of negligence as a matter of state law).

If the defendant is negligent, only “actual injury” damages are recoverable. However, if actual malice is found, damages may be presumed, and punitive damages allowed.

Question 13

how to determine if a matter is of public concern?

Answer 13

courts will look at the content, form, and context of the publication.

Question 14

libel is:

Answer 14

defamation in permanent form (ex. written/printed, most courts radio/tv)

Question 15

damages required in libel

Answer 15

P typically does NOT need to prove special damages to recover and general damages are presumed.

minority: will presume general damages ONLY IF the statement is defamatory on its face (libel per se) and require proof of special damages if the statement requires reference to extrinsic facts to establish its defamatory nature (libel per quod).)

Question 16

slander is

Answer 16

spoken

Question 17

damages required for slander

Answer 17

P MUST prove special damages, unless the defamation falls within one of the following slander per se categories:

• Adversely reflect on the P’s business/profession
• State that P has committed a serious crime (this includes most common law crimes and is sometimes referred to as crimes involving “moral turpitude”)
• Impute that P has engaged in serious sexual misconduct
• State that P has a loathsome disease

Question 18

special damages vs general damages in defamation

Answer 18

in some slander cases, P must prove that they suffered special damages (AKA some pecuniary loss).
But once the plaintiff has proved special damages, they may recover general damages as well.

Question 19

defenses to defamation

Answer 19

• consent: complete defense
• truth: In cases where the plaintiff is not obligated to prove falsity of the statement as part of their own case, the defendant may prove truth as a complete defense.
• privilege: absolute or qualified

Question 20

absolute privilege exists as a defense to defamation for the following :

Answer 20

• Communications between spouses
• Remarks made during judicial proceedings, by legislators during proceedings (even if not related to the proceedings), by executive officials, in “compelled” broadcasts

Question 21

qualified privilege exists as a defense to defamation when:

Answer 21

ONLY when there is a public interest in encouraging candor.

D has burden of proving that a privilege exists.

determined on a case-by-case basis.

Question 22

qualified privilege in defamation - when can privilege be lost?

Answer 22

if statement is not within the scope of the privilege or speaker acted with actual malice.

Some possible examples include:
- References and recommendations

• Reports of public hearings or meetings
• Statements made to those who are to take official action (for example, statements made to a parole board about a prisoner)
• Statements made to defend one’s own actions, property, or reputation

Question 23

mitigating factors in defamation

Answer 23

Mitigating factors (for example, no malice, retraction, anger of the speaker provoked by the plaintiff) may be considered by the jury on the damages issue; they are not defenses to liability.

Question 24

what type of right is the right of privacy

Answer 24

PERSONAL right and does not extend to members of a family, does not survive the death of the plaintiff, and is not assignable. Not applicable to corporations.

Question 25

causation and invasion of right to privacy

Answer 25

invasion of the plaintiff’s interest in privacy must have been proximately caused by the defendant’s conduct

Question 26

invasion of right to privacy includes four kinds of wrongs:

Answer 26

- Appropriation of the plaintiff’s picture or name - Intrusion on the plaintiff’s affairs or seclusion - Publication of facts placing the plaintiff in a false light - Public disclosure of private facts about the plaintiff

Question 27

right of privacy - damages required

Answer 27

plaintiff need not plead and prove special damages. Emotional distress and mental anguish are sufficient damages.

Question 28

invasion of right to privacy - appropriation of P's picture/name

Answer 28

MUST show unauthorized use of the plaintiff’s picture or name for the defendant’s commercial advantage. Liability is generally limited to advertisements or promotions of products or services. Mere economic benefit to the defendant (not in connection with promoting a product or service) by itself is not sufficient.

Question 29

invasion of right to privacy - intrusion on P's affairs/seclusion

Answer 29

1) forbids such acts as eavesdropping, spying, interception of phone calls or electronic communications, etc. 2) Act of prying or intruding must be HIGHLY offensive to a reasonable person. 3) thing into which there is an intrusion must be “private.” Photographs taken in public places are not actionable.

Question 30

invasion of right to privacy - publication of facts placing P in a false light

Answer 30

1) one attributes to the plaintiff views they do not hold or actions they did not take. 2) HIGHLY offensive to a reasonable person under the circumstances. 3) D must circulate the statement to the public at large. (Sharing with only one or a few persons will not be sufficient to trigger liability) * First Amendment Limitation: If the matter is of public interest, actual malice on the defendant’s part must be proved.

Question 31

invasion of right to privacy - public disclosure of private facts about P

Answer 31

1) public disclosure 2) private info about P 3) highly offensive to a reasonable person of ordinary sensibilities 4) need not be false * First Amendment limitations probably apply if the matter is of legitimate public interest.

Question 32

defenses to right of privacy actions

Answer 32

- consent - privilege - truth not a good defense (unless false light claim), nor is inadvertence, good faith, or lack of malice

Question 33

intentional misrepresentation (fraud/ deceit) elements

Answer 33

1) Misrepresentation of a material past or present fact 2) Scienter (when the defendant made the statement, they knew or believed it was false or that there was no basis for the statement) 3) intent to induce the plaintiff to act or refrain from acting in reliance upon the misrepresentation 4) Causation (actual reliance) 5) Justifiable reliance 6) Damages (the plaintiff must suffer actual pecuniary loss)

Question 34

defenses to intentional misrepresentation

Answer 34

NO defenses to intentional misrepresentation.

Question 35

intentional misrepresentation - duty to disclose?

Answer 35

There is no general duty to disclose a material fact, UNLESS D 1) stands in a fiduciary relationship to the plaintiff; (2) is selling real property and knows the plaintiff is unaware of, and cannot reasonably discover, material information about the transaction; or (3) has spoken and their utterance deceives the plaintiff. *Physical concealment of a material fact may also constitute a misrepresentation.

Question 36

intentional misrepresentation - 3rd party reliance

Answer 36

If a third party relies on the defendant’s representation, the defendant will be liable if they could reasonably foresee that the third party would so rely.

Question 37

intentional misrepresentation - reliance on opinion

Answer 37

Reliance generally is justifiable only on representations of fact (and the plaintiff is under no obligation to investigate the fact). Reliance on opinion is justifiable only if the defendant offering the opinion has a superior knowledge of the subject matter.

Question 38

negligent misrepresentation elements

Answer 38

1) Misrepresentation by the defendant in a business or professional capacity 2) Breach of duty toward a particular plaintiff 3) Causation 4) Justifiable reliance 5) Damages

Question 39

when does negligent misrep. apply

Answer 39

Generally confined to misrepresentations made in a commercial setting, and liability will attach only if reliance by the particular plaintiff could be contemplated

Question 40

interference with business relations elements

Answer 40

1) Existence of a valid contractual relationship between P and a third party or valid business expectancy of the P 2) D's knowledge of the relationship or expectancy 3) Intentional interference by the D inducing a breach or termination of the relationship or expectancy 4) Damages

Question 41

interference with business relations - privileges

Answer 41

D's conduct MAY be privileged if it is a proper attempt to obtain business for itself or protect its interests. A privilege is more likely to be found if the defendant: (1) interfered only with the plaintiff’s prospective business rather than with existing contracts; (2) used commercially acceptable means of persuasion rather than unlawful or threatening tactics; (3) is a competitor of the plaintiff seeking the same prospective customers; or (4) has a financial interest in or responsibility for the third party, or is responding to the third party’s request for business advice.