Torts 2 (Harm To Economic & Dignitary Interests)

Front 1

Elements for Defamation

Back 1

1. D must make a defamatory statement of and concerning (alive) P, specifically identifying P
- Inducement/Innuendo - P proves with additonal extrinsic facys
- doesn't identify P, can use colloquim--add'l extrinsic facts
- opinion not defamatory unless speaker has to assume factual basis that is defamatory
- mere name calling isn't defamatory
- regular stuff reflecting negatively on character trait: Honesty, loyalty, competence, sexual immodesty

2. Published at at least one 3P
- Mistaken publication sufficient (sending embezzlement letter address to wrong person)
- intentionally OR negligently

3. Damages, maybe (presumed sometimes)
- Libel, presumed
- SPS, presumed
- Slander per quod - need special damages

Front 2

Libel

Back 2

Written or some other permanent form, generally tv and radio is considered Libel.

Only need defamatory statement of and concerning P, published to at least one 3P.
P not precluded from showing more damages.

Front 3

Slander Per Se

Back 3

Damages are not required to be shown (treated just as libel) but (as in libel) damages can be shown by P in hopes of getting more money damages – Injury to reputation presumed in slander per se cases:
(1) Statement by D relating to P’s business or profession
(2) Statement by D that P committed crime of moral turpitude
(3) Statement imputing un-chastity to a woman
Chastity = virginity (refraining from sex till marriage)
- All it has to claim is that the individual simply has sex pre-marriage AT ALL – Not just “slut”
- However, success in the claim hinges on the standard of the community
Note: Not slander per se if dealing with a MAN
(4) Statement by D that P is suffering from a loathsome disease
- Only two loathsome diseases at common law
Leprosy –.“J has leprosy”
Venereal Disease – “J has syphilis/gonorrhea”

Front 4

Other Slander, what difference from SPS?

Back 4

Damages must be shown for a valid COA to exist as injury to one’s reputation is not presumed in slander other than slander per se
- This damage MUST be economic in nature (e.g. special damages)
Emotional distress/damage is insufficient BUT
General damages recoverable once the special damages discussed above have been shown

Front 5

Repetition of slander or libel???

Back 5

- If original defamation is libel any repetition thereof is also libel
- If original defamation is slander any written repetition will be libel

Primary Publisher/Republisher/Secondary Republisher (one responsible for disseminating) all liable

Front 6

If matter of public concern, what must be shown if P is a public figure? Public figure, public concern...

Back 6

1. P must demonstrate/prove that the statement at issue is false
- The statement is presumed true and D must show that it is not
2. P must also prove some degree of fault on D’s part
- ACTUAL MALICE--knowledge statement was false, made it anyway OR reckless disregard to its truth or falsity

Front 7

What if private person, public concern?

Back 7

1. Must only show D was negligent (No actual malice),
AND
2. As long as actual injury is shown damages can be recovered but limited to "actual injury" which are NOT limited to out of pocket expenses,
BUT if actual malice is shown damages are presumed and punitive damages are therefore permitted (just as in public official).

Front 8

What is private person, private concern?

Back 8

No requirement D be at any level of fault – Strict Liability
- So long as the statement is false damages are presumed and punitive damages are appropriate.
- Only four elements of CL need be established.

Front 9

What is matter of public concern??

Back 9

Courts look at
1. content
2. form
3. context
of publication.

Front 10

What are the defense to defamation???

Back 10

1. Consent
2. Truth - if D proves truth of matter, it is an absolute defense (eg private person/private matter)
3. Absolute Privilege
- Judicial Proceedings, Legislative Proceedings, Executive Proceedings
- Compelled Broadcast or Publication (radio station gave time to one public official and felt compelled time to others and therefore is not liable for defamation their speeches might contain)
- Between Spouses
4. Qualified PRivileges
- Encouraging strong public interest in candor leads to the creation of a qualified privilege so as to allow candid speaking – Big Three:
(a) Recommendations and/or Reference Statements:
(b) Credit Card Rating:
(c) Statements Made to Investigating Police Officers:
Qualified privileges exist in so long as:
•D is speaking/acting in good faith regarding the statement made
•Statements made are relevant to the subject to which the statement is made

Front 11

What are the mitigating factors for defamation?

Back 11

1. No actual malice
2. Retraction
3. Anger if provoked by P

Front 12

What are the four invasions of right to privacy?

Back 12

1. APPROPRIATION: unauthorized use by D of P's picture or name for commercial advantage (personal profit not sufficient)
- exception: newsworthiness exception like magazine cover
2. INTRUSION: Act of prying/intruding on affairs or seclusion of P, highly offensive to a RP, where privacy expected. (surveillance, not leaving if asked to be alone for private moment as long as P not choosing to be in public place--hospital)
3. FALSE LIGHT: Widespread dissemination of a material misrepresentation about P that would be objectionable to a reasonable person
4. DISCLOSURE of Private Facts about P: Widespread dissemination of confidential/private information about P which is objectionable to a reasonable person of ordinary sensibilities.
- Two exceptions: (1) Newsworthiness (2) Dual Life Fact Pattern - gay guy living double life

Front 13

What are the defenses to privacy torts?

Back 13

1. CONSENT: Consent is a complete defense to these four invasion of privacy claims

2. PRIVILEGES
Defamation Privileges:
The absolute and qualified privileges which exist in regard to defamation claims are ALSO defenses to the following invasion of privacy claims
False Light
Disclosure of Private Fact
-- This is due to their similarity to defamation

Front 14

Intentional Misrepresentation (Fraud/Deceit):

Back 14

• (1) Misrepresentation of a material fact:
• (2) Scienter:
• (6) Damages:
• (4) Causation:
• (5) Justifiable Reliance:
• (3) Intent to induce action by P:

Front 15

Negligent Misrepresentation:

Back 15

(1) Misrepresentation by D in a business or professional capacity:
(2) Breach of duty toward a particular P:
(3) Causation:
(4) Justifiable Reliance:
- For liability to attach reliance by THIS P must have been contemplated
(5) Damages:
- COA confined to misrepresentations made in a commercial setting

Front 16

Wrongful Institution of Legal Proceedings:

Back 16

Malicious Prosecution:
(1) Institution of criminal proceedings against P
Note: Prosecutors are usually immune from such suits
- Thus, it only applies to a person who files a complaint (e.g. goes to police) and based on the complaint a criminal action is commenced
(2) Termination of the proceeding in P’s favor
(3) Absence of probable cause for prior proceeding
- E.g. insufficient facts for a reasonable person to believe that P was guilty, or that D, in fact, didn’t actually believe P was guilty
(4) Improper purpose
- Suit was brought for something other than bringing a person to justice
(5) Damages
Note: Most jurisdictions extend this COA to cover civil proceedings also
Abuse of Process:
(1) Wrongful use of process for an ulterior purpose
(2) Definite act or threat against P in order to accomplish an ulterior purpose

Front 17

Intentional Interference with Business Relations: 3rd party interference with an existing contract

Back 17

Prima Facie Case:
• (1) Existence of a valid contractual relationship between P and a 3rd party OR a valid business expectancy of P
• (2) D has knowledge of the relationship or expectancy
• (3) Intentional interference by D inducing a breach or termination of the relationship or expectancy
• (4) Damages
Privileges:
•D’s conduct may be privileged when it is a proper attempt to obtain business for itself or to protect its interests – particularly if D is interfering with P’s prospective business advantage rather than with existing contracts
E.g. when a bank induces a debtor to pay off a promissory note even though it will cause debtor to be unable to satisfy the obligations owed to 3rd party under a contract entered into between those parties.

Front 18

When P is member of group when can she recover?

Back 18

1. All members of small group - yes
2. All members of large group - no
3. Some members of small group - yes if RP would view statement as referring to P