chapter 9
How can you best avoid defamation (libel) lawsuits?
-Accurate info -Delicate language/political correctness -Avoid comments about competitors -Use "puffery"
What are the four elements needed to successfully prove a defamation claim?
-Communication -Identification -Compensable injury -Negligible or Actual Malice
What are the necessary elements to prove it?
-Creation of a false light or false impression -Of the plaintiff -That would offend a reasonable person -In publicity presented to the public -By the defendant -With malice or reckless
What are the necessary elements to prove it?
-Intentional intrusion -In the personal space or information of the plaintiff -In a way that would offend a reasonable person
What are the four modern communication torts?
-Private Fact -False light -Appropriation -Intrusion
What case essentially created the tort?
-Red Kimono case Plaintiff, Gabrielle Melvin, prior prostitute, famous for wearing red kimono was accused and acquitted of killing a client. Melvin sued a motion picture company that made a film using her story and real name. Suit was dismissed by trial court, indicating she had no cause of action, Appellate Court disagreed, ruled Melvin's right to protect private facts about her life had been violated Established a plaintiff's right to sue defendants who revealed private facts when the defendant's statements are true
What are the necessary elements to prove it?
-Use of plaintiff's name or image -Without consent from the plaintiff -With financial benefit to the defendant or harm to the plaintiff
In what instances can companies be considered public figures?
-adv./pr activities to public -involved in matters of public controversy -access to media enabling them to respond
What are the defenses to a defamation lawsuit?
-fair comment -immunity -retraction -statutes of limitation
What are the necessary elements to prove it?
-private matter -highly offensive to a reasonable person -show harm and malice -not newsworthy
What is the Fair Comment Defense?
-statements that cannot be proven as true or false -Defamation cases hard to win, especially if what was stated was a "matter of public interest and concern."
Define communication torts.
Civil legal actions pursued by private citizens who feel wronged by journalists, PRs, Advertisers, practitioners and photographers.
What is the False Light tort?
Creation of false light or false impression of plaintiff that would offend a reasonable person in publicity presented to public by defendant with malice or reckless disregard for the truth by defendant Diff. from defamation, designed to protect plaintiff from distress or anguish
What are its defenses?
Incidental or newsworthy
What famous case did the concept of actual malice come from?
NYT v Sullivan -Times v. Sullivan - Justice Brennan created "malice rule" prohibits a public official from collecting any damage in a defamation action arising from a statement about his/her official conduct unless statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not
What are its affirmative defenses?
No affirmative defenses
How does retraction work as a defense?
Not a complete defense •Must be communicated quickly •With same prominence as original defamatory statement •Only mitigates damages •Governed by individual state laws
What is the Appropriation tort?
Protection from improper use of likeness or name.
What is the Publication of Private Facts tort?
Some information is private and so it should never be published, truth is not a defense
What is the Intrusion tort?
Use of information acquired by trespassing.
What are its defenses?
Waiver and consent (oral or written) Proving its true isn't a defense
Why does a court care whether a person (or company) is deemed a public figure (or public official) as opposed to a private citizen in a defamation case?
because public figures give up their right to status as a private person only in context of public matter in which they are voluntarily involved
What is the definition of actual malice?
knowing falsehood, or reckless disregard for the truth
What did the Rosenblatt v. Baer case provide to help the Supreme Court to address such issues?
question: how far down the "chain of command" does one stop being a public figure -Apparent government authority test -Independent public interest test
Define defamation.
the action of damaging the good reputation of someone; slander or libel.
Which is written defamation, which is spoken defamation?
written= libel spoken=slander
What are the different absolute and qualified immunity situations?
•Absolute -Legislators, judges, executive branch officers •Qualified- -Employment -situations / Police reports -Media descriptions of some public activity or government official »Statements must be public and accurate »To determine if immunity is lost, courts look to motive
What is the key concept in an Intrusion case?
•Expectation of privacy is key & trespass