Defamation and privacy, and defenses to such claims - Next Generation Bar Exam
- Under New York Times Co. v. Sullivan, what must a public official prove to recover for defamation on a matter of public concern?
- Actual malice: knowledge of falsity or reckless disregard for the truth. Actual malice must be proved by clear and convincing evidence.
- What are the four categories of slander per se?
- Statements imputing a serious crime, a loathsome disease, unfitness in business or profession, or serious sexual misconduct. Slander per se does not require proof of special damages.
- A newspaper prints a false statement that a city mayor took bribes, believing it true after careless reporting. What is the likely result in the mayor's defamation suit?
- The newspaper is not liable, because negligence does not establish actual malice. A public official must show knowledge of falsity or reckless disregard.
- What is the effect of truth in a defamation action?
- It is a complete defense. Substantial truth suffices.
- What is the difference between libel and slander?
- Libel is written or other fixed defamation; slander is spoken. General damages are presumed for libel at common law.
- An employer tells a prospective employer, in good faith, that a former employee was fired for missing work, which proves inaccurate. What defense applies?
- A qualified privilege. The statement served a legitimate common interest and was made without malice.
- What are the four privacy torts?
- Intrusion upon seclusion, appropriation of name or likeness, public disclosure of private facts, and false light. Truth is not a defense to intrusion or public disclosure.
- What is the status of a pure opinion in a defamation action?
- It is not actionable, because it does not imply false assertions of fact. Under Milkovich, an opinion implying a provably false fact may be actionable.
- Under Gertz v. Robert Welch, Inc., what fault must a private figure prove for defamation on a matter of public concern?
- At least negligence as to falsity. Presumed or punitive damages require actual malice.
- What is a qualified privilege in defamation?
- A conditional privilege for statements made to protect a legitimate interest, lost by abuse such as malice. Examples include employment references and reports to police.
- What are the elements of common-law defamation?
- A defamatory statement of fact about the plaintiff, published to a third party, causing damage. Constitutional rules add fault and falsity requirements in many cases.
- What is an absolute privilege in defamation?
- Complete immunity for statements in judicial, legislative, and certain executive proceedings, and between spouses. Absolute privilege cannot be lost by abuse.
- What must a plaintiff show for public disclosure of private facts?
- Publicity of private information that would be highly offensive to a reasonable person and is not of legitimate public concern. Newsworthiness defeats the claim.