Business Law (Defamation) – Flashcards
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Defamation
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Is the publication or communication of a false and defamatory statement concerning the plaintiff which is made with required degree of fault by the defendant and with adequate proof of damages by the plaintiff
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Libel
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A defamatory statement in some permanent form
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Slander
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A defamatory statement in some temporary form
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Elements of Defamation
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Falsity, Defamatory, Statement, Concerning the Plaintiff, Publication(Communication), and Required Degree of Fault
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Falsity
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The Plaintiff carries the burden of proof to show by clear and convincing evidence, that the D's statements were false
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Defamatory
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Reputation lowering. P must show that her reputation is worse after the incident than it was before
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Statement
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not an opinion. P must show that the D's utterances implied knowledge of ultimate fact
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Concerning the Plaintiff
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The P is specifically named or is an unnamed member of a sufficiently small group so that the P's reputation has been directly affected
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Publication (Communication)
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Communication of the statement to 3rd parties or repetition of the original communication to additional 3rd parties
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Required Degree of Fault
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The actual malice standard if the P is a public official or public figure. Negligence if the P is a private figure.
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Rules for a Public Figure or Official
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p must prove that D made the false and defamatory statement either (a) with knowledge of falsity (b) with reckless disregard as to its truth.
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Reckless Disregard
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D had serious doubts as to the truth of the statements, hard to prove because the 1st amendment backs it.
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Rules to Private Figure
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P must prove only that D acted with a lack of reasonable care in making the false statement. Easier to prove for P to win.
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Defenses to Defamation
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Privilege-even if all the elements of defamation have been established by the plaintiff, the defendant will be protected by a qualified privilege in certain situations:
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Statements are protected made during
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A. Legislative Proceedings B. Executive Proceedings C. Judicial Proceedings D. Employment References E. Credit Bureau Information
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Invasion of Privacy (4 torts of action)
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Intusion Upon a Person's Solitude, Public Disclosure of Private facts about person, Publicity Placing a person in false light in public, and Misappropriation of likeness for commercial purposes
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Intrusion Upon a Person's Solitude
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Physical or Nonphysical intrusion into zone of privacy/ must be highly offensive to reasonable person (objective standard)
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Public Disclosure of Private Facts about Person
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must be highly offensive to reasonable person and not a matter of legitimate concern to the public
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Publicity Placing a Person in a false light in public
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publicity attributing to person's characteristics he does not have or believes he does not hold
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Misappropriation of likeness for commercial purposes
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Use of name/image/other info for commercial purposes to imply some nonexistent connection or to imply product endorsement (news is only exception)
