Torts: Defamation/invasion Of Privacy

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Defamation

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A defendant commits defamation when he publishes to a third person defamatory language of and concerning the plaintiff that damages the Plaintiff's reputation. If the defamation is a matter of public concern the Constitution requires the Plaintiff prove falsity of the defamatory language and fault on the part of the Defendant.

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Defamation Generally

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A statement is defamatory if it tends to adversely effect reputation. Name callinf is not defamatory. Generally you need a statement that is a representation of fact. Pure opinion is not actionable but opinion implying a factual basis can be defamation. Must be living to be defamed, maybe corporations

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Inducement and Innuendo

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

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Colloquium

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If the statement does not refer to plaintiff on its face, extrinsic evidence may be offered to establish that the statement refers to P.

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Group defamation

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If the statement refers to all members of a small group, each member may establish a defamation claim. If it is a large group no member can establish a defamation claim.

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Publication

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Communicating the statement to one person who is not the Plaintiff. It does not have to be deliberate, it can be negligent. One who repeats defamation is liable on the same basis as the primary publishers.

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Damages: Libel

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Any form of defamation that is written down or embodied in some sort of permanent form. No special damages required and general damages are presumed. Radio and television broadcasts are considered libel.

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Damages: Slander

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Slander is spoken defamation. Plaintiff must prove special damages (not social harm), unless defamation falls within slander per se

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Damages: Slander Per Se

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Words that adversely reflect on one's conduct in a business or profession, that states one has a loathsome disease, or that one is or was guilty of a crime involving moral turpiturel or a woman is unchaste

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First amendmend concerns

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When the defamation involves a matter of public concern, Plaintiff must prove in addition to the common law elements; falsity of the statement; and fault on the part of defendant.

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Defendant's Fault: Public Figure

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If Plaintiff is a public figure P must show knowledge; or recklessness in investigating the truth of a statement

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Defendant's Fault/ Private figures

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Private figures only have to prove negligence regarding the falsity of the statement. When negligent, only actual damages are recoverable, when there is malice, punitive damages are recoverable and damages are presumed

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Defamation: Defenses

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Consent, truth, absolute privilege, qualified privilege, public concern

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Defamation: Truth

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Defendant may prove truth as a complete defense

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Defamation: Absolute Privilege

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Defendant receives an absolute privilege for 1) spouses communicating with each other 2)officers of the 3 branches of government engaged in official duties (lawyers/witnesses) 3) members of the media reporting on public proceedings

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Defamation Qualified Privilege

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Arises when there is a public interest in encouaging candor (ex. References, letters of recommendations, statement made to police or during investigations, statements in the interest of the recipient.

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Defamation: When qualified privilege lost

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If the statement is not within the scope of the privilege or it is shown that the speaker acted in malice. Defendant bears burden.

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Invasion of privacy branches

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Appropriation, intrusion, false light, disclosure

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Invasion of Privacy: Appropriation

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Occurs when Defendant uses Plaintiff's name or picture for a commercial advantage. Liability limited to ads and promotions. Economic benefit to D is not enough. NEWSWORTHINESS EXCEPTION

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Invasion of Privacyy: Intrusion

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An invasion of the Plaintiff's seclusion in a way highly offensive to an average person. Plaintiff must be in a place where there is a reaosnable expectation of privacy (home, car for certain things, hotel room). No requirement for D to trespass

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Invasion of Privacy: False Light

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Wide spread dissemination of a major falsehood about the Plaintiff that would be highly offensive to the average person (does not have to be defamatory). NO GOOD FAITH DEFENSE HERE. YOU SPEAK AT YOUR PERIL

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Invasion of Privacy: Disclosure

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Wide spread dissemination of confidential information about the Plaintiff that would be highly offensive to the average person. Info is truthful but intimate (ex. Medical records) NEWSWORTHINESS EXCEPTION. Must be truly private. Watch for dual spheres of life questions

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Defenses to Invasion of Privacy

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Consent and Absolute and qualified privileges are defenses to false light and disclosure claims