Defamation, Invasion of Privacy, & Business Torts

Defamation

Defamatory statement, of or concerning P, published to a third party, has a tendency to harm P’s reputation.

• Defamatory Statement: harms P’s reputation by diminishing respect/esteem/goodwill towards P or deters association with P

• Published: intentionally/negligently communicated to third party. Repeating defamatory sufficient (but note fault).

Defamation: Public Official or Figure

• Falsity: must be false

• Fault: actual malice (P knew statement false or acted with reckless disregard for the truth)

• Damages: presumed or punitive

Defamation: Private Individual and Public Concern

• Falsity: must be false

• Modified Fault: either actual malice or negligence

• Damages:

  • If actual malice = presumed or punitive

  • If negligence = special damages

Defamation: Private Individual and Private Concern

• No Falsity: not required to be false (but usually is)

• No Fault: but usually at least negligence required

• Damages:

  • If actual malice = presumed or punitive

  • If negligence = special damages

Libel

Written communication. General/presumed damages (i.e. no proof of harm).

Slander

Spoken communication. Requires special damages (i.e. proof of economic loss/harm).

• Slander Per Se: if slander involves a claim of crime, concerns professional/business reputation, loathsome disease, or sexual misconduct, then damages presumed

Defamation Defenses

1. Truth

2. Consent

3. Absolute privileges: judicial/legislative remarks, between spouses, required publications

4. Qualified privileges: affects public interest or made in the interest of D or a third party unless malice

Intrusion Upon Seclusion

D intrudes on private affairs in a manner highly offensive to a RP (e.g. phone tapping).

False Light

D publicizes false info about P w/ actual malice, placing P in a false light, highly offensive to a RP.

Appropriation/Right of Publicity

D uses P’s NIL for their commercial advantage without consent.

Public Disclosure of Private Facts

D discloses true info, highly offensive (RP), and info is not a legitimate concern of the public.

Fraud

1. Defendant's false representation

2. Scienter (knowledge/reckless disregard)

3. Intent to induce reliance

4. Causing justifiable reliance

5. Damages

Business Misrepresentation

• Intentional Misrepresentation: false misrepresentation of material fact made with knowledge and intent to induce reliance, causing P to justifiably rely and suffer harm

• Negligent Misrepresentation: providing false info in a commercial setting due to D’s failure to use reasonable care causing P to justifiably rely and suffer pecuniary harm

Intentional Interference with Business Relations

Interference with a valid K or business expectancy by one with knowledge, causing breach resulting in damages.

Trade Libel (Injurious Falsehoods)

Publication of a derogatory statement relating to P’s business, causing interference with or damage to P’s business, causing special damages.

Malicious Prosecution

Intentional and malicious pursuit of legal action for an improper purpose without probable cause, dismissed in P’s favor.