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Torts


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In English
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Public
Created by:
Robert Suber


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[Front]


1. Defamatory language on the part of the defendant 2.Defamatory language must be of or concerning the plaintiff 3.Publication of the defamatory language by the defendant to a third person; and 4.Damage to the reputation of the plaintiff.
[Back]


Defamation

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1. Primary Publisher - Each individual who takes part in making the publication is charged with the publication as a primary publisher; e.g., a newspaper or TV station carrying a defamatory message would be viewed as a primary publisher and held responsible for that message to the same extent as the author or speaker. Note, however, that an Internet service provider is not treated as a publisher when a user of its service posts defamatory content. 2. Republisher - A republisher (i.e., one who repeats a defamatory statement) will be held liable on the same general basis as a primary publisher. This is so even if the repeater states the source or makes it clear that she does not believe the defamation. Note: Where there has been a republication, the original defamer’s liability may be increased to encompass any new harm caused by the repetition if the republication was either (i) intended by the original defamer or (ii) reasonably foreseeable to her 3. Secondary Publisher - One who is responsible only for disseminating materials that might contain defamatory matter (e.g., a vendor of newspapers, a player of a tape) is viewed as a secondary publisher. Such individuals are liable only if they know or should know of the defamatory contentWho may be liable?
A) Knowledge that the statement was false, or b) Reckless disregard as to its truth or falsity. - It must be shown that the defendant was subjectively aware that the statement he published was false or that he was subjectively reckless in making the statement. Reckless” conduct is not measured by a reasonable person standard or by whether a reasonable person would have investigated before publishing. There must be a showing that the defendant in fact (subjectively) entertained serious doubts as to the truthfulness of his publication. It is not enough that the defendant is shown to have acted with spite, hatred, ill will, or intent to injure the plaintiff. Assuming the defendant was in fact negligent in ascertaining the truth of what it published—but still it had no actual knowledge of the falsity, nor was it guilty of reckless disregard for the truth—damages can be recovered but are limited to the “actual injury” sustained by the plaintiff; i.e., presumed damages are prohibited New York Times v. SullivanWhat is actual malice?
It follows that if the plaintiff cannot prove “actual injury,” he cannot recover any damages, unless he can show that the publication was made with knowledge of its falsity or with reckless disregard for the truth. There is no constitutional protection for publications made with “knowl-edge or reckless falsity,” and hence, the plaintiff is entitled to whatever recovery is permitted under state law in such cases (i.e., “presumed” or general damages and even punitive damages in appropriate cases). Note that this approach is simply a restatement of the general rule in torts that damages must be proved in negligence actions (see infra, III.E.) but usually are not required where the defendant is more culpable, such as for intentional tortsPresumed Damages or Punitive Damages Allowable Where Actual Malice Found
Under certain circumstances, the speaker is not liable for defamatory statements because he enjoys an absolute privilege. Such absolute privileges are not affected by a showing of malice, abuse, or excessive provocation, as in the case of qualified privileges 1. Judicial proceedings All statements made by the judge, jurors, counsel, witnesses, or parties in judicial proceedings are absolutely privileged. The privilege attaches to all aspects of the proceedings, e.g., statements made in open court, pretrial hearing, deposition, or in any of the pleadings or other papers in the case. 2.Legislative proceedings All remarks made by either federal or state legislators in their official capacity during legislative proceedings are likewise absolutely privileged 3.Executive Proceedings A governmental executive official is absolutely privileged with respect to any statement made by her while exercising the functions of her office.There is a requirement that the statement have some reasonable relationship to the executive matter or proceeding in which she is acting 4.“Compelled” Broadcast or Publication - A radio or TV station compelled to allow a speaker the use of the air, a newspaper compelled to print public notices, etc., is absolutely privileged in an action based on the content of the compelled publicationAbsolute privilege
1) Publication of facts about plaintiff by defendant placing plaintiff in a false light in the public eye; For liability to attach, there must be publicity concerning the “false light” facts; this requires more than “publication” in the defamation sense 2) The “false light” is something that would be highly offensive to a reasonable person under the circumstances; A fact will be deemed to present plaintiff in a false light if it attributes to him:(i) Views that he does not hold, or(ii) Actions that he did not take.Note: This element involves falsity and, as such, may also involve defamation if the falsity affects reputation 3) Actual malice on the part of defendant where the published matter is in the public interest. the Supreme Court held that the First Amendment prohibits recovery for invasion of privacy in cases where the published matter is of public interest, unless the plaintiff establishes that the defendant acted with actual malice the Supreme Court held that the First Amendment prohibits recovery for invasion of privacy in cases where the published matter is of public interest, unless the plaintiff establishes that the defendant acted with actual malicePublication of Facts Placing Plaintiff in False Light
1) Publication or public disclosure by defendant of private information about the plaintiff; For liability to attach, there must be publicity concerning a private fact; i.e., the disclosure must be a public disclosure, not a private one. The facts disclosed must be “private.” For example, there is no liability for matters of public record, since these facts are not private. Liability may attach under this privacy branch if the elements of a prima facie case are satisfied even though the factual statement about the plaintiff is true 2) The matter made public is such that its disclosure would be highly offensive to a reasonable person. The rationale of Time, Inc. v. Hill appears to encompass this branch of the invasion of privacy tort as well. In other words, if the matter is one of legitimate public interest, the publication is privileged if made without actual malice.Public Disclosure of Private Facts About Plaintiff
You do not need to prove this in an action for invasion of privacy
Special damages in invasion of privacy action