Defmation- what kind of tort is it?

What does this mean for court's willingness to embrace it?

Defamation I s a tor of the intangible. It is harm not of a person but rather it is damage to one’s reputation

Because it is intangible, cts are more hesitant to embrace this tort. IT is a matter determines what the person’s reputation was before and whether it was harmed.

4)     damaging the pl’s reputation

The statement must be false and it is the plaintiff’s burden of proof is to show that the statement is false.

How does the defamatory statements have to effect the pl?

How may this occur?

It has to be a defamatory statement that adversely effects a person’s reputation.

It may result from impeaching the person’s integrity honesty virtue, sanity business sense, business skills or the ability for the plt to effectuate their job    

This is a fault tort (is kind of an intentional tort)

The stmnt has to be about the pl.

It has to affect them as an individual

A stmnt has been published. It can be published orally or in writing (there are different methods of publishing) basically you are communicating the stmnt to an unprivileged 3rd pty.

Intent and defamation

What must the intent come with?

The pl has to prove that the defendant intentionally made the statement with either actual (aka constitutional) malice which is defined as when the defendant made that statement, they knew it was false or when they made the statement they did so with reckless disregard to the truth or falsity of the statement.

What is proof of intent for defamation?

What kind of standrd is used for this?

What do prrivate and public figures have to show to prove intent?

Proof of the intent must be through actual malice or through negligence (for private figures) so this is determined on negligence standard. For public figure (must show actual malice or actual intent)

The per quod pl must show that they were economically harmed and the words are not defmation on their face are in fact defamation.

 What are the two different kinds of plaintiffs for defemation suits?

Which has the higher standard of proff?

1) Public Plaintiff

2) Private plaintiff

The public plaintiff has a higher standard to meet.

Intent for a private plaintiff can be proven by either 1) neg or 3) actual mactual malice

Based in neg: actual damages only; including. Emotion distress

What kind of damages can be recovered for a defmation lawsuit based on actual malice?

Why?

Based on actual malice: actual and punitive and emotional distress b/c the level of defamation is so blatant must punish defendant.

What must be shown to prove actual malice in a defamation suit?

What is the level of proof required?

Must show clear and convincing evidence that def knew published statement were false or reckless. The standards of proof is a clear and convincing level- one step higher than the preponderance of evidence needed for neg but one step lower than beyond reasonable doubt

It used to be with defamation, that libel was written and slander was spoke. There used to be a distinction but now the courts have mostly combined them. So if you have a case that deals with one or the other research the terms.

The publication is made to an unprivileged third party. This is a person who does not have a privilege to hold or hear the statement

1) consent

2) The truth

3) absolute privilege

  i I consent to story in complete form and in story you write that I’m a thief and I consent to your writing and publishing story then there is no action

- if you are arrested and convicted of theft then you are a theft and if I put that internet that you are a theif, it’s the truth and you can’t sue me for defamation

Absolute privilege as a defense to defemation- generally

An example?

The defendant has an absolute privilege to say what he said about plaintiff to whom he said it to. So under certain situations, the speaker will not be held liable for something that would otherwise be defamatory if there is an absolute privilege. So if this privilege exists, then you can say whatever you want.

So if you are a witness in judicial proceeding, you can say whatever you want even if they’re false. Attys and judges can say anything they want during judicial proceeding- even if it’s a deposition. So It attaches to all judicial proceedings like witness stmtns, affidavits, etc.

Absolute privilege is an umbrella of protection for the person speaking. 

Who in government holds an absolute privilege?

When do they hold such a privilege?

There are absolute privileges in federal proceedings and in legislative proceedings in hearings or on the floor of the statehouse, but if walking down the hall, that privilege is gone. They have to be exercising their role as legislature in the well of whatever their legislative function.

Executive person holds an executive privilege (i.e. the prez of the us) with regards to any stmnt made to while exercising his office. But this only exists if exercising the functions of the office.

Communication btwn spouses is an absolute privilege in most states. If there has been a pulication between third parties then in some states this may be qualified.

Qualified privileged- so in some circumstances a person may have a privilege for a statement- this requires a factual analysis to determine

When do qualified privileges exist?

What are the restrictions on it?

Within the qualified stmtns, if there is a common interest between the publisher and the recipient of the stmnt so as long as they are communicating abt a common interest between them, it is privileged. But the communication must be for the purposes must be for the purposes of the common interest and it cannot exceed the boundaries of that common interest. 

An example of qualified privilege?

How can the place where the statement is made effect the qualified privilege

Statements of a board of trustee member to a chairman of the board about another trustee, they are privileged b/c there was a common interest between their functions. But if they are in a public place and discussing the third trustee then the communication is no longer privileged. So therefore it must be in a private setting. So also, who else is in earshot or had privilege to read the statement, the scope of the interest between the peeps is examiner. The question is whether or not the person who is speaking and the person who is hearing the communication have the right to say whatever they want.

What kind of privilege exists for past and future employers?

When will this privilege be lost? (Example)

Qualified privilege exists between future and past employers for the purposes of a recommendation come , but it cannot exceed the purpose of the privilege.

So if the past employer says that the person slept with everyone and it’s a lie, is the privilege lost? This is called abuse and the privilege is lost

When can qualified privlege be lost?

What kind of care and manner must the speaker with a qualified privlege use?

The qualified privilege can be lost if the parties provide false information or do not use reasonable care in providing the information through abuse of the privilege. The defendant has to act in a reasonable manner and use reasonable care.

So if the statement made is not within the scope o the privilege and goes to a matter that is completely un related the privilege is lost

If speaker acts with malice or makes statements that they know are false and they make statements with reckless disregard to the veracity, that’s is abuse of the privilege and it’s lost

If speaker acts with malice or makes statements that they know are false and they make statements with reckless disregard to the veracity, that’s is abuse of the privilege and it’s lost

Who has to prove that a privilege exists?

The burden of proof is on the defendant to show that the privilege exists and then burden of proof shifts back to plt. To show that privilege was abused and lost or that it never was privileged to begin with

If a newspaper took steps to try and determine if a fact was true, found it was true and then it turns out to be false, they can take steps to mitigate the liability. So they are not absolved of all liability but it shows there was no malice and that it was in good faith.

If you say something defamatory and others that you tell and they tell others spread it, the original person who says the defamatory statement is liable for all of this

This tort covers the right of individuals against unreasonable interferences with their solitude.

The right to privacy tort of the invasion of privacy tort has come to be known as a tort that protects a personality as well as the interference of solitude.

1) the misappropriation by the def of the plt’s picture of name for def’s commercial advantage

2) Intrusion on the Pl’s affair or seclusion

3) Publication of facts placing pl in a false light.

the misappropriation by the def of the plt’s picture of name for def’s commercial advantage

What must it be and an example

It must be a commercial advantage.

So if your child has a cardboard cutout of lebron james and he’s looking out your living room window and he has on a st. paddy’s day tie and st. paddy’s day shamrocks and your child has put a diaper on lebron james, the real lebron james can’t do anythingabout it.

But if a beer and wine store and that takes the cutout and slaps a sign on it that says lebron loves dog fish ale, then  lebron james does have a claim for the invasion of  privacy