Defamation

Front 1

Defamation: element 1

Back 1

Defamation: (Traditional) 1) D must make a defamatory statement specifically identifying the P; 2) the D must publish the statement, 3) damages, maybe
Element 1:
• A statement is defamatory when it tends to adversely effect reputation (not about emotional harm); name-calling in generally not defamatory b/c there are no concrete allegations- look for a real-world factual event
• Common statements involve: honesty, ex. john smith is embezzling money from his job; professional competence, loyalty; morality
• Statements of opinion are defamatory if a reasonable person would think its based on fact.
• Must identify P specifically. P must alive at time statements are made. No liability for actions against a dead person.

Front 2

Defamation: Element 2:

Back 2

publication (very broad)
• D must share the statement w/ at least one person other than the P.
o The more widely the info is disseminated the greater the damages.
• It can be satisfied via a negligent act, it d/n require intent. Ex. you accidentally send a letter to the wrong person.

Front 3

Defamation: Element 3:

Back 3

damages, maybe

Libel: defamation in a permanent form i.e. written somehow (printed, or stored on a hard drive). In a libel case, the P need not prove damages.

Slander: spoken/ oral defamatory statement. Two categories: slander and slander per se
• Historically, some slander is treated as liable and t/f P d/n have to prove damages.
• If you do not have slander per se, you must prove ECONOMIC damages. i.e. that you lost your job, a promotion, a K, decreased revenues etc. from the statement.

Front 4

Slander per se:

Back 4

relating to P’s business or profession, the P has committed a crime of moral turpitude, imputing un-chastity to a woman (a single woman is sexual active), that the P suffers from a loathsome disease (leprosy, venereal disease).

Front 5

Defamation
NY has rules about presumed damages:

Back 5

• Libel cases require proof of damages if a) if its not w/in one of the four per se categories and b) it’s defamatory impact is not clear on the face of the statement but requires additional evidence.

Front 6

Three Affirmative Defenses to defamation

Back 6

Consent: we already talked about it- see above

Truth: D can always establish that the words are factually accurate and that will exonerate D from liability. Can be hard to prove things and D bears bop.

Absolute and Qualified Privileges

Front 7

Defamation
Absolute privilege:

Back 7

Two groups of people can’t be liable for defamatory statements: 1) spouses can’t be liable for telling each other defamatory statements (ex. my boss is embezzling money), 2) governmental officers engaged in the conduct of their official duties, including officers of the court i.e. lawyers.

Front 8

Defamation
Qualified privileg

Back 8

relies on when the speech is made. Exists when there is a strong, social interest in identifying candor.
• D must have reasonable belief that what he is saying is accurate. Ex. “I made a reasonable mistake.” (note: if using this privilege, the statement is obviously false.)
• D loses privilege is they interject irrelevancy. Ex. in letter of rec, D says, “she’s great but she has leprosy.”
• Ex. authors of letters of recommendations and references are protected. Ex. when police interview people, they are protect about what they say.

Front 9

Defamation- if it’s a matter of “Public Concern” it

Back 9

We add 2 extra elements to make it harder to win, so as not to chill FS.
• P must prove the “falsity” of the statement that was made. (regularly: the D must prove the statement was truthful).
• P must prove the D was at some type of fault.
o If P is a Public figure, fault means intent (meant to do it) and recklessness (no investigation).
o If P is a private party, fault means simple negligence. Ex. newspaper: his secretary shredded the papers showing the crime. She brings suit against newspaper.

Front 10

Privacy Torts / Invasion of privacy

Back 10

appropriate
false light
Invasion of Intrusion on solitude
Public disclosure of private facts

Front 11

***Appropriation:

Back 11

when you use someone’s name or likeness for commercial advantage w/o their consent. Ex. cereal company uses Jeter’s pic. He can sue.
Exception:
• News media exception: seller’s of the magazine are not liable.
• The P need not be a celebrity.

Front 12

Invasion of Intrusion on someone’s objective exclusion or solitude.

Back 12

• Ex. listening in on someone, spying on your neighbor.
• P must be in a location where there is a reasonable expectation of privacy. ex. your home, car, you hotel room. Contrast: if you’re on the subway, you do not have a reop. Note: no trespass to land required.
Does not exist in NY- MS only

Front 13

False Light

Back 13

the D makes a widespread dissemination of a major falsehood to a objective person.
• Distinguish from defamation: in defamation you need only tell one person.
• It can be defamatory, but it need not be. Ex. Dave says all over town: Pete is a devout roman catholic. Not a defamatory statement, but he’s actually a jew.
• Also, you get different damages. Defamation→ economic damages. False light→ emotional damages (only?)
• No intent required- it’s almost a strict liability. i.e. it d/n matter if the D had a good faith basis or made a mistake. Anti-gossip law.
Does not exist in NY- MS only

Front 14

Public disclosure of private facts

Back 14

Must be a private fact.
Ex. P at gay pride parade and someone takes a picture of him and everyone at work learns he’s gay. This is NOT a private fact- he was in public.

Front 15

Defenses to Privacy Torts

Back 15

1. Consent
2. Absolute and Qualified Privileges- defense to false light and public disclosure. Ex. professor had QP to include student’s transcript w/ the letter of rec.