Defamation, Invasion of Privacy, Other Harm

Elements of Defamation

(1) A defamatory statement that specifically identifies the plaintiff; (2) published to a third party; (3) Falsity of the defamatory language; (4) fault on the part of D; (5) damage to P’s reputation

Defamatory Statement, Generally

Mere name-calling insufficient. A statement of opinion is actionable only if it appears to be based on specific facts and an express allegation of those facts would be defamatory.

Implied Defamation

Even if a statement is not defamatory on its face, P may plead additional facts as “inducement” to establish defamatory meaning by “innuendo”

Who Can be Defamed

Any living person can be defamed. Defamation of a dead person is not actionable. In a limited sense, a corporation, unincorporated association, or partnership may be defined (in regard to financial condition, honesty, integrity, etc)

Identification of Plaintiff

P must establish that a reasonable person encountering the defamation would understand that the defamatory statement referred to the plaintiff

Colloquium

If the statement does not refer to P on its face, extrinsic evidence may be offered to establish that the statement refers to P. This is known as pleading “colloquium”

Group Defamation

If the defamatory statement refers to all members of a small group, each member may establish that the statement identifies them by alleging that they are a group member. If a statement only refers to some members of a small group, a plaintiff can recover if a reasonable person would view the statement as referring to the plaintiff. If the statement refers to a large group, no member can prove that the statement specifically identifies them.

Publication, Generally

Publication means communication of the defamation to a third person who understands it and can be done either intentionally or negligently. Intent to publish is required but not necessarily intent to defame. Each repetition is a separate publication, but many states have adopted a “single publication” rule for newspapers, magazines, etc.

Only Plaintiff Hears

No defamation occurs when the defamatory statement is made only to the Plaintiff.

Liability for Defamation

Primary publishers are liable to the same extent as the defaming author or speaker. One who repeats a defamation is liable, even if she states the source or makes it clear that she does not believe the defamation. Someone selling papers or playing audio files is a secondary publisher and only liable he if knows or should have known of the defamatory content. Per federal statute, an ISP is not treated as a publisher when a user of its service posts defamatory content

Falsity in Defamation

At common law, P did not have to prove that the statement was false. Instead, the defendant was obliged to prove truth as a defense. Many states have altered that rule to shift the burden to the plaintiff to establish falsity. Even in traditional rule states, P must prove falsity in any case where P is constitutionally obligated to prove fault.

Fault on D’s Part

The status of the plaintiff traditionally determined the degree of fault based on constitutional limitations. A majority of states require a showing of fault (or at least negligence) in all cases, regardless of P’s status

Defamation of a Public Official or Public Figure

Per NYT v Sullivan, actual malice must be proved in defamation cases brought by public officials and figures. A person becomes a public figure by achieving pervasive fame or notoriety or by voluntarily assuming a central role in a particular public controversy. Actual malice is knowledge that the statement was false or reckless disregard as to where it was false. Deliberately altering a quotation may constitute malice if the alteration causes a material change in the meaning conveyed.

Private Persons and Defamation

Per Gertz v Welch, when a private person is a plaintiff, only negligence must be proved if the statement involves a matter of “public concern.” If the statement is not a matter of public concern, constitutional restrictions do not apply. If D is merely negligent, only actual injury damages are recoverable. If actual malice is found, damages may be presumed and punitive damages are allowed.

Actual injury

Economic damage, but also damages for impairment to reputation and personal humiliation so long as P offers proof

Damages Depends on Type of Defamation

Damages are generally presumed under the law of libel. In some slander cases, P must prove that they suffered special damages in order to recover at all, but once special damages are established they may recover for general damages.

Libel

Defamation embodied in permanent form. Often written or printed, but most courts also treat radio and television programs as libel.

Slander Special Damages exceptions

P does not have to prove special damages if the defamation was slander per se, which encompasses statements that: (1) adversely reflect on P’s business or profession; (2) state that P has committed a serious crime; (3) impute that P has engaged in serious sexual misconduct; or (4) state that P has a loathsome disease

Defenses to Defamation:

Consent; Truth; Absolute Privilege; Qualified Privilege

Absolute Privilege Defense

D may be protected by an absolute privilege for: (1) communications between spouses; (2) remarks made during judicial proceedings; (3) remarks by legislators during proceedings, even if unrelated to the proceedings; and (4) remarks by executive officials in “compelled” broadcasts

Qualified Privilege Defenses

A qualified privilege arises only when there is a public interest in encouraging candor. D bears the burden of proving that a privilege exists. Determined on a case-by-case basis, and may be lost if the statement exceeds the scope of the privilege or if the speaker acted with actual malice. Examples: (1) references and recommendations; (2) reports of public hearings or meetings; (3) statements made to those who are to take official action; and (4) statements made to defend one’s own actions, property, or reputation

Mitigating Factors Defamation

Mitigating factors such as a lack of malice, retraction, or anger of the speaker that was provoked by the plaintiff, may be considered for damages but are not defenses to liability

Invasion of the Right to Privacy: Generally

A personal right; does not extent to members of a family, does not survive the death of the plaintiff, and is not assignable. Not applicable to corporations. The invasion must have been proximately caused by the defendant’s conduct. P need not plead and prove special damages. Emotional distress and mental anguish are sufficient damages.

Types of Wrongs Invasion of Right to 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; and (4) public disclosure of private facts about the plaintiff

Appropriation of P’s picture or name

P must show unauthorized use of P’s picture or name for D’s commercial advantage. Liability is generally limited to ads or promotions of products and serves. Mere economic benefit to the defendant (not in connection with promoting a product or service) by itself is not sufficient

Intrusion on P’s Affairs or Seclusion

Forbids eavesdropping, spying, interception of phone calls or electronic communications, and other similar conduct. The act of prying and intruding must be highly offensive to a reasonable person, and the matter must be “private.” Photographs taken in public places are not actionable.

Publication of Facts Placing P in a False Light

“False light” exists where one attributes to P views that P does not hold or actions P did not take. The false light must be something highly offensive to a reasonable person. For liability to attach, D must circulate the statement to the public at large; sharing with one or a few persons is not enough. If the matter is of public concern, actual malice is required

Public Disclosure of Private Facts

Matters of public record are not sufficient. The public disclosure must be highly offensive to a reasonable person of ordinary sensibilities. Liability may attach even if the statement is true. 1A limitations apply if the matter is of legitimate public interest

Defenses to Invasion of Right to Privacy

Consent and the defamation privilege defenses. Truth is not a good defense unless it is a false light claim. Inadvertence, good faith, or lack of malice are also not defenses.

PFC for Intentional Misrepresentation (Fraud, Deceit)

(1) Misrepresentation of a material past or present fact; (2) scienter (when D made the statement, they knew or believed it was false or that it had no basis; (3) intent to induce P to act or refrain from acting in reliance upon the misrepresentation; (4) actual reliance; (5) justifiable reliance; (6) damages (actual pecuniary loss).

Defenses to Intentional Misrepresentation

There are no defenses to intentional misrepresentation

General Duty to Disclose

There is no general duty to disclose a material fact unless the defendant (1) stands in a fiduciary relationship with P; (2) is selling real property and knows P is unaware of and cannot reasonably discover material information about the transaction; or (3) has spoken and their utterance deceives P. Physical concealment of a material fact may also constitute misreprsentation

Third party Reliance on Misrepresentation

If a third party relies on D’s misrepresentation, D will be liable if they could reasonably foresee that the third party would so rely

Reliance on Opinion in Intentional Misrepresentation

Reliance generally is only justifiable on representations of fact. Reliance on opinion is only justifiable if the defendant offering the opinion has a superior knowledge of the subject matter.

Negligent Misrepresentation PFC

(1) Misrepresentation by D in a business or professional capacity; (2) breach of duty toward a particular P; (3) causation; (4) justifiable reliance; and (5) damages

Limitations on Negligent Misrepresentation

Generally only applies in commercial settings and liability will only attach if reliance by the particular plaintiff could be contemplated. Foreseeability that the statement will be communicated to a third party does not make the defendant liable to the third party

Interference with Business Relations PFC

(1) existence of a valid contractual relationship between P and a third party OR valid business expectancy of P; (2) D’s knowledge of the relationship or expectancy; (3) intentional interference by D inducing a breach or termination of the relationship or expectancy; and (4) damages

Privileges for Interference with Business Relations

D’s conduct may be privileged if it is a proper attempt to obtain business for itself or protect its interest. More likely to be found if D (1) interfered only with P’s prospective business rather than with existing contracts; (2) used commercially acceptable means of persuasion rather than unlawful or threatening tactics; (3) is a competitor of P seeking the same prospective customers; or (4) has a financial interest or responsibility for the third party or is responding to the third party’s request for business advice