Harm to Economic and Dignitary Interests Flashcards
(28 cards)
Defamation
(1) defamatory language; (2) of or concerning the P, (3) publication by D to a third person; and (4) damage to Ps reputation
If public concern, Constitution requires (5) falsity of the language; and (6) fault on the part of D
Language sufficient to be defamatory
Language tending to adversely affect one’s reputation
name calling is insufficient
Must be a living person. Defamation of deceased person is not actionable. Corporations are limited to remarks as to financial condition, honesty, or integrity
Of or concerning P
P must establish that reasonable reader, listener, or viewer would understand that the statement referred to the P
colloquium
If statement does not refer to P on face, extrinsic evidence may be offered to establish that statement refers to P
Group Defamation
if statement refers to ALL members of a SMALL group, each member can establish of and concerning element
If large group, no member can prove of and concerning element
If some members of a small group, P can recover if a reasonable person would view the statement as referring to P
Publication
Communication of the defamation to a THIRD PERSON who UNDERSTANDS it
Intent to publish is necessary, not intent to defame
Libel
Written or printed publication of defamatory language
NO need to prove special damages and general damages. Presumed
Radio and TV are generally libel
Slander
Spoken defamation. P must prove SPECIAL DAMAGES, unless if slander per se
Slander Per Se
NO need to show special damages. Statements that:
(1) adversely reflect on one’s conduct in a business or profession; (2) loathsome disease; (3) crime of moral turpitude (common law crimes); or (4) chastity of a woman
Defamation of a Matter of Public Concern
must show that the statement is false and that D acted with actual malice
If true, no CoA. But look for IIED or invasion of privacy if private individual
Public Figure
Someone of pervasive fame or notoriety or assumes a central role in a public controversy
Requires actual malice and common law elements.
Damages are presumed under common law rules, punitive damages if appropriate
Actual Malice
(1) knowledge that statement is false, or (2) reckless disregard as to whether it was false
Subjective Test
Private Person on a matter of public concern
At least negligence is required for malice if statement involves a matter of “public concern” plus common law elements
Damages: only for proved actual injury. If actual malice shown, however, punitive damages are available
Private person on a matter of private concern
Common law defamation. No fault requirement.
Damages: presumed damages under common law rules and punitive damages where appropriate
Consent
Complete defense to defamation. implied or express.
Truth
Complete defense when P does not need to prove falsity himself.
Burden on D in common law defamation, P must prove in consitutional defamation
Absolute Privileges
judicial proceedings; legislators during proceedings; federal executive officials; compelled broadcasts; and between spouses
Never lost
Qualified Privileges
Can be lost through abuse of privilege
reports of official proceedings; statements in the interest of the publisher (defending your actions); statements in the interest of the recipient
Privacy Torts
Appropriation, Intrusion, False light, Public Disclosure
Only Intrusion doesn’t require a publication
All requires Causation
No need to show special damages. Emotional distress and mental anguish are sufficient
Appropriation
Unauthorized use of P’s picture or name for D’s COMMERCIAL advantage
Limited to advertisements or promotions. MERE ECONOMIC BENEFIT IS INSUFFICIENT..must be in connection with promoting a product or service
Intrusion on P’s Affairs or Seclusion
Prying or Intruding that is highly offensive to a reasonable person
Intrusion must be a PRIVATE one. Public photographs is not actionable.
False Light
When one falsely attributes views or actions to P
Must be something HIGHLY OFFENSIVE to a reasonable person
Must have publicity to be actionable
if of public interest, must show actual malice
Public Disclosure of Private Facts
public disclosure of private information that his HIGHLY OFFENSIVE to a reasonable person of ordinary sensibilities
Objective standard
May be liable EVEN IF TRUE
Defenses to Privacy torts
consent and all defamation defenses (e.g., if public interest, must show actual malice)
Truth is NOT a good defense
