Torts - Defamation & Invasion Of Privacy, Nuisance

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Defamation ( F DROP)

F = False Statement
D = Defamatory statement (harm reputation)
R = Reputation
O = Of & concerning the plaintiff
P = Publication to a 3rd party

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A false statement of material fact published to others about the plaintiff causing damage to reputation. A defamation may be oral (slander) or written (libel).

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Libel

Back 2

Involves information which has been reduced to some permanent, physical form such as letters, newspapers, photographs.

Hint 2

Note: replication of a libelous statement, even if it is oral is libel.

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Slander

Back 3

Spoke words of defamation. Slander requires special damages (identifiable losses actually suffered by the plaintiff) unless the slander falls within "slander per se".

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Slander Per Se (CLUB)

C = Crime, morally reprehensible
L = Loathsome disease
U = Unchaste, female plaintiff
B = Business or profession

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Slander Per Se provides four exceptions under which special damages are not required.

Charge that 1) plaintiff committed a morally reprehensible crime, 2) plaintiff has a loathsome communicable disease, 3) Conduct with plaintiff's business or profession, and 4) Female plaintiff was unchaste.

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Publication

Back 5

The Defamation must be published to at least one third party, other than the plaintiff.

Defamation is published where it is intentionally or negligently communicated to one other than the person defamed.

Remember respondeat superior will make newspaper liable for publication by reporter or editor.

Disseminator not liable (libraries, dealers or distributors of books, newspapers, etc that contain defamatory material).

Hint 5

Publishers and republishers are liable.

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Harm to Reputation

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Statement must have the potential to injure the reputation of the plaintiff (the statement must tend to lower the plaintiff's reputation in the estimation of the community where published or deter others from associating with the plaintiff.

Harm to reputation is based on what is reasonably understood by the third person to whom it was published, not what speaker meant.

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Of and Concerning the Plaintiff

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Some third person must have reasonably interpreted the statement to have referred to the plaintiff. If on its face makes no reference to plaintiff, plaintiff must establish the Colloquium", i.e. that some person to whom the statement was published reasonably interpreted it as applying to the plaintiff.

Any living person, corporation, partnership, or other legally recognized entity may be the subject of defamation.

Hint 7

No action for someone who is already dead.

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Group Defamation

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

The key to the size of the group and ability to establish a defamation claim is the ability to identify each member of the group. A statement about all lawyers would be to large a group for an individual defamation claim, but a statement about partners at ABC law firm (which only has 4 partners) would not.

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False Facts

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The defamatory statement needs to be false, thus the statements must contain explicit statements of fact or implied unstated facts that were false.

Generally opinions are not considered statements of fact.

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Causation

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Same as for negligence, the statement by defendant must be cause in fact of the defamatory results and proximate cause of such effect.

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Damages

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For libel and slander per se, damages presumed by law, general damages to compensate for damage to the plaintiff's reputation are available.

Not necessary to prove special damages not required.

For slander must show special damages (no presumed by law such as loss of employment or business).

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Constitutional Concerns - 1st Amendment

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Sometimes the interest in freedom of expression can outweigh the interest in protecting the reputation of the individual. Where this is the case the defamation may be privileged as a matter of constitutional law.

Application of constitutional privilege depends on status of the plaintiff, i.e. whether they are a public person (public official or public figure) or a private person.

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Public Persons

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If a plaintiff is a public person plaintiff must show malice (knowledge that the statement was false , or reckless disregard as to whether it was false).

Public Persons = Public Officials or Public Figures.

Plaintiff has the burden of proving statement was false by clear and convincing evidence.

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Public Officials

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People with substantial responsibility over government affairs are held to be public officials.

A public officials must show actual malice, knowledge that the statement was false or acts in reckless disregard as to the truth or falsity of the statement in order to be liable.

Note: police officers are considered public officials, but courts split on whether principals and teachers are public officials.

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Public Figure

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People who have achieved such pervasive fame or notoriety that they become a public figure or voluntarily enter into or are drawn into a particular public controversy.

A public figure must show actual malice, knowledge that the statement was false or acts in reckless disregard as to the truth or falsity of the statement in order to be liable.

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Private Person

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A person who is neither a public official or public figure is a private person.

Private person need only show negligence for defamation and only actual damages are recoverable.

Constitutional limitations and/or privileges only apply if the statement was of public concern.

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Defenses - JET LEG

J = Defamatory statements in course of Judicial hearings
E = Confidential communications between spouses who are deemed one Entity.
T = Truth
L = Statements by legislators made in legislative chambers
E = Executives of State, Local or Fed gov'tl or admin agencies making statements in furtherance of their official duties
G = Grievance committees

Back 17

Consent is a complete.

Truth is a complete defense.

Absolute privilege (legislators, policymaking executives at all levels, participants in judicial proceedings and spouses).

Qualified privileges (arise base on context or circumstances that led to speech, where there is a public interest in encouraging candor such as letters of recommendation, professional references, statements made to investigating officials, etc.) and constitutional privileges (public persons)

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Invasion of Privacy ( A FLIP)

A = Appropriation of plaintiff's likeness for commercial purposes
FL = False light
I = Intrusion
P = Private facts, publishing of

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Invasion of privacy involves four direct interferences with an individual's right to be left alone.

Unlike defamation, where falsity is the key, in invasion of privacy, the statement of truth is what makes it damaging.

Basis for liability: 1) misappropriation of name or likeness, 2) unreasonable intrusion of privacy, 3) placed in false light and 4) public disclosure of public facts.

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Misappropriation

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The unauthorized appropriation of the plaintiff's likeness or name for any commercial purpose.

Commercial purpose is the promotion or advertising of a product or service for commercial advantage.

Hint 19

Picture is a likeness

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False Light

Back 20

The publication of information that puts the P in a false light by attributing to the P views that he does not hold or actions that he did not take, that would be offensive to a reasonable person.

Publication must be to a reasonable number of third parties, and false light must be highly offensive to reasonable person.

Plaintiff need not prove special damages, emotional distress and mental anguish is sufficient.

Note: this is basically a weaker form of defamation. Differs because: 1) false light requires intent, 2) publication must be to a reasonable number of third parties, and 3) false light must be highly offensive to reasonable person.

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Public Disclosure of Private Facts

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Publication of private information that would be highly offensive to a reasonable person with knowledge or reckless disregard for the truth.

Requires publication to the public at large and must involve confidential information (not matters of public record or public occurrences and not "newsworthy"

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Intrusion into Plaintiff's Private Life

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Intentional and highly offensive (to a reasonable person) intrusion by defendant into plaintiff's solitude or seclusion or his private life (private place, conversation, matter).

No publication is required.

Law protects those areas of plaintiff's life that the plaintiff can reasonably expect will not be intruded upon.

Key question to consider is "was there a reasonable expectation of privacy" which depends upon who might be able to observe the interaction and the identity of the alleged intruder and the nature of the intrusion.

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Defenses

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Consent

Newsworthiness - broad defense applies to pictures published in newspapers as well as magazines on former celebrities and public figures.

Public information.

Note: truth is not a defense

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Public Nuisance

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Public nuisance is an unreasonable interference with a right common to the general public.

Generally involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convince.

May also result from failure to prescribe to a statute, ordinance or administrative regulation.

In order to recover damages in and individual action for a public nuisance one must have suffered harm of a kind different than that suffered by other members of the public.

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Bring Action of Public Nuisance

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In order to maintain a proceeding to enjoin or abate a public nuisance one must; 1) have the right to recover damages (suffered harm of a kind different that that suffered by other members of the public, or 2) have authority as a public official or public agency to represent the state or a political subdivision in the matter, or 3) have standing to sue as a representative of the public, as a citizen in a citizen's action or as a member of a class action.

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Private Nuisance

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A private nuisance is a thing or activity which substantially and unreasonably interferes with plaintiff's use and enjoyment of property that he actually possesses or to which he has the right of immediate possession..

Hint 26

Differs from trespass to land which is a physical invasion, while nuisance is interference with use or enjoyment.

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Substantial

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Substantial means that the interference must be offensive, inconvenient, or annoying to an average person in the community.

Not substantial if it is merely the result of the plaintiff's hypersensitivity or specialized use of his own property.

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Unreasonable

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Unreasonable means that the severity of the nuisance to the plaintiff's outweighs the utility of the defendant's conduct.

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Defenses to Private Nuisance

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Contributory negligence, when the nuisance is the result of negligence.

Assumption of risk, same as in other torts.

Coming to the nuisance is not a defense but may be a factor in determining if the nuisance is actionable.

Compliance with statute is relevant and persuasive in determine whether the nuisance is actionable , but not an absolute defense to private nuisance.

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Remedies for Nuisance

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The usual remedy for nuisance is damages (money award).

Injunctive relief may be awarded where the legal remedy (damages) is inadequate or unavailable.

In determining if an injunction will be granted the courts will undertake to balance the equities by taking into account 1) relative economic hardship to the parties from granting the injunction and 2) the public interest in continuing defendants activities.

Abatement by self-help; One has the privilege to enter onto defendant's land and personally abate the nuisance after notice to the defendant and her refusal to act.

In self-help only necessary force may be used and only if the plaintiff has suffered some unique damage.