11. Defamation, Disparagement & Privacy

What type of damages can be awarded in a Defamation Per Qod Claim?

1) Compensatory/Actual Damages IF PROVEN 2) Nominal Damages = NOT RECOVERABLE

What are the remedies for appropriation?

1) Damages for costs or losses associated with the misappropriation 2) Restitution of any economic benefit derived by Defendant 3) Statutory, such as §26.002, Property Code that protects an interest in one's name, voice, signature, photograph, or likeness for 50 years following death

What are the remedies under §123.002 right privacy for intrusion?

1) Enjoin further interception, divulgence, or use of the information 2) $10,000 for each occurrence 3) All actual damages in excess of $10,000 4) Punitive damages 5) Reasonable attorney's fees and costs **CL remedies mirror these BUT also possible injunctive relief against further intrusion

What are the elements of disparagement?

1) Falsehood calculated to cause pecuniary loss 2) Publication to a third party 3) Malice 4) Special Damage 5) Plaintiff possessed of an estate or interest in property

What determines the extent of the mitigation after a retraction?

1) Immediate --How immediate was the retraction? 2) Prominent-- How prominent was the retraction? 3) Unequivocal--How unequivocal was the retraction?

The right of privacy is divided into 4 protective interests:

1) Intrusion 2) Appropriation 3) Public Disclosure of Private Facts 4) False Light in the Public Eye --NOT recognized in Texas

What type of damages can be awarded in a Defamation Per Se claim?

1) Nominal Damages may be awarded w/o proof of actual injury because mental anguish and loss of reputation are presumed. 2) Compensatory Damages - General --actual damages for loss of reputation or accompanying mental anguish - Special --economic loss

What are the 3 types of damages that are recoverable for a COA of defamation?

1) Nominal Presumed Damages 2) Actual Compensatory Damages 3) Exemplary Damages

What are defenses to disparagement?

1) Truth is a justification 2) Consent is an absolute defense 3) Only absolute privileges apply: - like the testimony of a witness during a judicial proceeding,

How can conditional privileges be defeated?

A conditional privilege is defeated when the privilege is abused. Abuse may be found when the person making the defamatory statement knows the matter to be false or does not act for the purpose of protecting the interest for which the privilege exists.

What does §123.002 of the Civil Practice & Remedies Code say about intrusion?

A party to a communication has a cause of action against one who wrongfully intercepts, causes or attempts to intercept it

What are the permitted uses of appropriating a deceased's name, voice, signature, photograph, or likeness in any manner?

A person may use a deceased individual's name, voice, signature, photograph, or likeness in: (1) a play, book, film, radio program, or television program; (2) a magazine or newspaper article; (3) material that is primarily of political or newsworthy value; (4) single and original works of fine art; or (5) an advertisement or commercial announcement concerning a use under this subsection.

Under Texas Property Code §26.002 --what is the effect appropriation for a deceased individual?

An individual has a property right in the use of the individual's name, voice, signature, photograph, or likeness after the death of the individual.

What does intrusion mean within the right of privacy?

An unreasonable interference with the seclusion of another. The intrusive conduct must affect something to which Plaintiff has a reasonable expectation of privacy. Common examples would include eavesdropping, wire- tapping, and peeping toms, etc.

What are examples of the absolute privilege?

Attaches to situations that involve the administration of functions of the branches of government, such as statements made during legislative and judicial proceedings.

What is a conditional privilege?

Conditional Privileges are true privileges because they arise out of the occasion upon which the false statement is published

What are the constitutional limits to defamation claims?

Defamation alone is not a sufficient justification for restraining an individual's right to speak freely. Therefore, injunctions that impose unconstitutional restrictions are those that restrict FUTURE SPEECH.

What is Defamation Per Qod?

Defamation that either: (1) is not apparent but is proved by extrinsic evidence showing its injurious meaning or (2) is apparent but not a statement that is actionable per se On its face, it's not defamation BUT with these things = defamation: 1) Inducement —you have underlying facts that color the meaning of the statement 2) Innuendo —did you hear the way I said it? 3) Coloquium —information that allows you to determine who it is about

What is the definition of the tort of disparagement?

Disparagement is calculated to cause pecuniary --economic loss Applies to any legally protected property interest that can be sold

What are the unauthorized uses of appropriating a deceased's name, voice, signature, photograph, or likeness in any manner?

Except as provided by Section 26.012, a person may not use, without the written consent of a person who may exercise the property right, a deceased individual's name, voice, signature, photograph, or likeness in any manner, including: (1) in connection with products, merchandise, or goods; or (2) for the purpose of advertising, selling, or soliciting the purchase of products, merchandise, goods, or services.

What are general actual or compensatory damages?

General = non-economic for loss of reputation & mental anguish Based soley on the difference between the plaintiff's pre and post defamation reputation --the difference if ANY is the basis for recovery. **non-economic = these are subject to the Texas non-economic damages cap of $750,000

When are general compensatory damages presumed?

General Compensatory Damages can be presumed w/o proof of actual injury only for defamation per se if: 1) The speech is not a matter of public concern, or 2) With proof of actual malice

What does the Texas Defamation Mitigation Act do?

Imposes reciprocal duties on claimants and publishers re: the necessity for, the manner of, and the impact of a correction, clarification, or retraction BUT the Act lacks teeth—noncompliance simply imposes a requirement for proof of actual malice to recover exemplary damages, which Texas requires in any event

What is an inadequate retraction?

Inadequate--a mere offer to publish the plaintiff's rebuttal is insufficient

What is an absolute privilege?

It is more properly thought of as an immunity b/c it based on the personal position or status of the actor It is well established that ordinarily no action for damages lies for a statement made in the course of a judicial proceeding though the language be false and published with express malice Here, the motive of the actor is irrelevant and it is not based on any honest belief that the statement is true.

How does Texas treat malice differently for disparagement?

Malice for a basic tort = deliberate conduct w/o reasonable cause Malice necessary for punitive damages = ill will, bad or evil motive

Can a dead person be defamed?

No, but a COA can survive the death of both the Plaintiff and Defendant

Who can be defamed in Texas?

Only living persons & corporations

What are special damages for the tort of disparagement?

Pecuniary loss attributable to specific sales, clients, contracts, etc.

What does appropriation mean within the right to privacy?

Protects identity; rather than name, likeness, or image

Is Defamation Per Se a question of law or fact?

Question of Law: was the statement reasonably capable of defamatory meaning from the perspective of an ordinary reader in light of the surrounding circumstances Question of Fact:

What is Slander of Title and what must the Plaintiff prove?

Relates to ownership --to title The plaintiff must prove a specific lost sale to recover.

What is Slander of Property?

Relates to quality-- The plaintiff must prove a specific lost sale where possible

What is the effect of a Retraction on a defamation claim?

Retraction does NOT undue defamation, but it can help to mitigate the damage.

What is the right to privacy?

Right to be left alone, free of unwanted or unwarranted attention

How are the torts of defamation and disparagement similar and different?

Similar: Both involve the imposition of liability for injury sustained through publications to third parties of a false statement affecting the plaintiff. Difference: The two torts, however, protect different interests. Defamation--The action for defamation is to protect the personal reputation of the injured party Disparagement-- the action for injurious falsehood or business disparagement is to protect the economic interests of the injured party against pecuniary loss.

What are special actual or compensatory damages?

Special = economic damages such as lost income, destruction of one's business profession, cost of remedying the defamation, etc. These are Parasitic = you must prove reputational harm to recover non-reputational damages

What is defamation?

The publication of false and reputationally injurious fact

What are exemplary damages for defamation?

These are Parasitic = more than nominal damages must have been awarded. The plaintiff must prove actual malice by clear and convincing evidence.

What is the definition of a Defamation Per Se claim?

These are statements that are so obviously harmful that general damages (such as mental anguish and loss of reputation) may be presumed A statement that injures a person in her office, profession, or occupation is typically classified as defamatory per se

When are nominal presumed damages awarded in Texas?

They are not available in regular defamation cases BUT in: 1) Defamation Per Se (libel and slander Per Se) 2) Per Se damages are presumed, but NOT the amount.

What does it mean when we say a defamation claim must be published?

This means that the defamation has to be communicated to a third party ie whatever number it takes to have a substantial impact on the person's reputation.

What is the difference between slander of title and property?

Title --relates to legal conclusions in which there are summary proceedings available to clear title Quality--The court judgment may be inadequate to restore b/c the loss is more difficult to specifically identify and then to alleviate

What does "public disclosure of private facts" mean within the right to privacy?

Unreasonable publicity of P's private life Disclosure to a third person is usually sufficiently "public" Effect of "public record"

What happens if the court determines that the statement was or was not reasonably capable?

Was reasonably capable--does not go to the jury Was NOT reasonably capable--goes to the jury

What is the effect of a Defamation Per Se claim?

We allow the jury to presume the existence of general damages (loss of reputation, mental anguish) w/o proof of injury.

What is the statute of limitations to a COA for defamation?

You have a one year period that commences: 1) At publication, if public like a newspaper or magazine 2) Discovery Rule (when discovered or reaosnably should have discovered) applies to private publications