Module 16 - DEFAMATION, INVASION OF PRIVACY, AND OTHER HARM TO ECONOMIC AND DIGNITARY INTERESTS

What are the elements of defamation?

1. A defamatory statement specifically identifying the plaintiff

2. Published to a third party

3. Falsity of the defamatory language

4. Fault on the defendant's part

5. Damage to the plaintiff's reputation

What is a defamatory statement?

A statement that tends to adversely affect one's reputation. An opinion is actionable if it appears based on specific facts that would be defamatory if alleged.

Can name-calling be defamation?

No, name-calling is insufficient to constitute defamation.

What is implied defamation (inducement and innuendo)?

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

Can a deceased person be defamed?

No, defamation applies only to living persons, although corporations and partnerships can be defamed regarding their financial condition, honesty, or integrity.

What is "colloquium" in defamation?

Extrinsic evidence offered to prove that a defamatory statement refers to the plaintiff if it doesn't explicitly do so.

What is group defamation?

All members of a small group: Each member can claim defamation.

Some members of a small group: Plaintiff can recover if a reasonable person would view the statement as referring to them.

Large group: No member can prove identification.

What is the requirement for publication in defamation?

Communication of the defamatory statement to a third party who understands it. Intent to publish, not intent to defame, is required.

What happens if a defamatory statement is made only to the plaintiff?

No defamation occurs unless a third party hears and understands the defamatory statement.

Who may be liable for defamation?

- Primary publishers (e.g., newspapers, TV stations)

- Those who repeat defamation

- Secondary publishers (only liable if they know or should know the content is defamatory)

- Internet service providers (not liable under federal statute)

Who has the burden of proving falsity in defamation cases?

Traditionally, the defendant had to prove truth. Many states now require the plaintiff to prove falsity, especially when the plaintiff must prove fault constitutionally.

What fault must public officials or figures prove in defamation cases?

Actual malice, meaning knowledge that the statement was false or reckless disregard of its truth or falsity (New York Times v. Sullivan).

What constitutes a "public figure" in defamation cases?

Someone with pervasive fame or notoriety or who voluntarily assumes a central role in a public controversy.

What fault must private persons prove in defamation involving matters of public concern?

Negligence regarding the falsity of the statement (Gertz v. Welch).

What damages are recoverable if the defendant is negligent in a defamation case involving a matter of public concern?

Only actual injury damages unless actual malice is found, in which case presumed and punitive damages are allowed.

What is libel?

Defamation in permanent form (e.g., written, printed, or broadcasted) where damages are generally presumed, and special damages need not be proved.

What is slander?

Spoken defamation where the plaintiff must prove special damages unless it falls within one of the slander per se categories (business/profession, serious crime, serious sexual misconduct, loathsome disease).

What are some defenses to defamation?

Consent, truth, absolute privilege (e.g., communications during judicial proceedings), and qualified privilege (e.g., references, reports of public hearings).

What are the four types of invasion of privacy?

1. Appropriation of the plaintiff's picture or name

2. Intrusion on the plaintiff's affairs or seclusion

3. Publication of facts placing the plaintiff in a false light

4. Public disclosure of private facts

What constitutes "intrusion on plaintiff's affairs or seclusion"?

Highly offensive prying or intruding into something private, such as eavesdropping or spying, but not photographs taken in public places.

What is "false light" in privacy torts?

Attributing to the plaintiff views or actions they did not take, which must be highly offensive and shared with the public at large.

What is "public disclosure of private facts" in privacy torts?

Disclosure of private information that is highly offensive, even if true, unless the matter is of legitimate public interest.

What are defenses to privacy torts?

Consent and defamation privileges (truth is a defense in false light claims, but not generally in other privacy torts).