advanced-torts-outline.pdf

lOMoARcPSD|19835293 Advanced Torts Outline ADVANCED TORTS (University of South Dakota) Studocu is not sponsored or endorsed by any college or university Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Chapter 5: Publicity & Privacy Section 1: Appropriation of Name, Likeness, or...

lOMoARcPSD|19835293 Advanced Torts Outline ADVANCED TORTS (University of South Dakota) Studocu is not sponsored or endorsed by any college or university Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Chapter 5: Publicity & Privacy Section 1: Appropriation of Name, Likeness, or Identity Hinish v. Meier & Frank Co. Facts: P sued employer for signing him name and address on a telegram it sent to the governor of OR without his knowledge or consent. Issue: Is there a legal right of privacy in this state? Held: Yes. Complaint states cause of action for breach of P’s right of privacy. Rule: Faces have commercial vale and intrusions into privacy are more likely today with media and radio. Reasoning: Ds appropriated P for their own purposes and injected him into political controversy in which he had no interest. Minnifield v. Ashcraft Facts: Ashcraft submitted a photo of tattoo he drew on Minnifield to a magazine without her permission. It was published and Minnifield was recognized in the photo by cousin’s roommate. Issue: Does Minnifield have an invasion of privacy claim? Held: Yes. Minnifield has a commercial appropriation claim. This was not protected under the legitimate public interest exception. Rule: Invasion of privacy consists of 4 distinct wrongs: 1. intruding into P’s solitude or seclusion 2. giving publicity to private info about P that violates ordinary decency 3. putting P in a false, but not necessarily defamatory position in the public eye 4. appropriating some element of P’s personality for commercial use. Liability for a commercial appropriation claim arises when one’s name or likeness is appropriated by another to the other’s “use or benefit.” It is only when publicity is given for purpose of appropriating to the D’s benefit the commercial or other values assoc with the name or likeness that the right of privacy is invaded. Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 There is a legitimate public interest exception to the right of privacy. The broadcast of matters of “legitimate public interest” is not prohibited by the right to privacy because of the interest of the public in being informed. Reasoning: She was clearly identifiable in one of the photos. Ashcraft’s name and business name were next to photos. Reasonable to assume he sought a commercial benefit from publication. Uhlaender v. Henricksen Facts: Issue: whether several MLB players have a proprietary or property interest in their names sporting activities and accomplishments so as to enable them to enjoin the use thereof for commercial purposes by private entrepreneurs engaged in the manufacture of table games which employee and use their names and accomplishments? Whether the plaintiffs names and published statistics can be considered property subject to legal protection from unauthorized use? Rule: a logical extension of the concept misappropriation of one’s name or public personality is a compensable trespass to property is the recognition of the so-called “right of publicity.” The exclusive licensee of the right to exploit a celebrity’s name likeness or personality has a proprietary interest (a “right of publicity”) assignable in gross to the extent permitted under the original licensing agreement with the celebrity. A celebrity has a legitimate proprietary interest in public personality which is the fruit of his labors and a type of property. Held: yes defendant violated the the plaintiffs right by the unauthorized appropriation of their names and statistics for commercial use Reasoning: in the case at bar, the names and statistics are valuable only because of their past public disclosure, publicity, and circulation. A name is commercially valuable as an endorsement of A product or for use for financial gain only because the public and recognizes it and attributes goodwill and seats of skill or accomplishments to that personality. To hold that such publicity destroys a right to sue for appropriation of a name or likeness would negate any and all causes of action. Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Carson v. Here’s Johnny Portable Toilets Facts: Johnny Carson introduced on Tonight Show by phrase “Here’s Johnny.” Portable toilet company starts using the slogan. Rule: the right of publicity is that a celebrity has a protected pecuniary interest in the commercial exploitation of his identity. If the celebrities identity is commercially exploited, there has been an invasion of his right whether or not his name or likeness is used Held: invasion of privacy. Defendants appropriated Carson’s identity in connection with its corporate name and its product. Reasoning: Carson’s identity maybe exploited even if his name or picture is not used. Landham v. Lewis Galoob Toys Facts: Landham=fringe actor who played supporting roles in motion pictures. One role was “Billy the Native American Tracker” in The Predator. Fox licensed to Galoob rights to produce toys based on The Predator, one of which was a Billy action figure. The figure had no eyes or mouth and so bore no resemblance to Landham. But he argued toy violated his right of publicity. Landham’s argument rests on presumption that by IDing toy as “billy,” Galoob has evoked Landham’s identity in the public mind. Rule: the right of publicity reserves to a celebrity the personal right to exploit the commercial value of his identity. A celebrity need not be a national celebrity to prevail. But a plaintiff must demonstrate that there is value in associating an item of commerce with his identity. Although right began as protection for name or likeness, now extends to anything that suggests P’s identity. If use of fictional character evokes identity of actor who played him, actor may challenge that use even if his personal notoriety was gained exclusively through playing that role. Held: No violation of right of publicity. Reasoning: Landham failed to demonstrate that his persona has “significant commercial value” or that the “Billy” toy invokes his own persona as distinct from that of the fictional character. Memphis Development Foundation v. Factors, Inc. Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Facts: in exchange for royalties Elvis Pressley conveyed to boxcar Enterprises the exclusive right to exploit the commercial value of his name and likeness. Two days after his death box cars sold to Factors a license to use this right. The Memphis development foundation a nonprofit laid plans to erect a statue of Presley in Memphis. public contributions were solicited to pay for the statue. Donors of $25 or more received a replica of the proposed foundation. Factors claimed the foundation was selling the statues for $25 apiece and infringing it’s rights as assignee of Presley’s right of publicity. Issue: Whether under Tennessee law the exclusive right of publicity survives a celebrity’s death? Held: No. Rule: No post mortem right of publicity. Reasoning: the memory name in pictures of famous individuals should be regarded as a common asset to be shared. Hicks v. Casablanca Records Facts: P’s, heirs and assignees of the late Agatha Christie, seek an order in joining defendant movie producer Casablanca from distributing or showing the motion picture Agatha and seek order enjoying defendant publisher from distributing or making the book Agatha available to the public. Both present fictionalized accounts of true incidents from the life of Christie. Allege violation of right of publicity. Rule: the right of publicity is a valid property right which is transferable and capable of surviving the death of the owner. This interest survives only if it is found that the owner “exploited” the right during his or her lifetime. A party claiming the right must establish that the decedent acted in such away as to evidence his or her own recognition of the extrinsic commercial value of his or her name or likeness and manifested that recognition in some overt manner, e.g., making an inter vivos transfer of the rights in the name or posing for bubblegum cards Issue: whether the right of publicity attaches where the name or likeness is used in connection with a book or movie? Held: Exploitation established but no right to publicity violated. Rule: the right of publicity does not attach where a fictionalized account of an event in the life of a public figure is depicted in a novel or a movie, and in such a novel or movie is evident to the public that the events so depicted are fictitious. Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Reasoning: plaintiffs established that Christie assigned rights to her literary works to plaintiff and decreased similar rights by testamentary disposition. This evidence when considered together with evidence of contracts entered into miss Kristie for use of her name during her lifetime in connection with movies and plays sufficiently establishes exploitation. However the first amendment protection usually accorded novels and movies outweighs whatever publicity rights plaintiffs may possess answer their complaint must be dismissed. Groucho Marx v. Day & Night Co. Facts: Ps sued producers of a musical play. Names of Marx bros. not used but script called for the 3 principal performers to reproduce appearance and comedy style Marx bros. made famous. Ps sued claiming violated their right of publicity to commercialization of Marx characters. Held: Violation of right of publicity. Rule: although entertainment enjoys First Amendment protection the purpose or function of such entertainment must be scrutinized in determining the scope of the right of publicity. As a general rule, if the defendant works are designed primarily to promote the dissemination of thoughts and ideas or information through news or fictionalization, the right of publicity gives way to protected expression. If however the defendant use of the celebrities name or likeness is largely for commercial purposes, such as the sale of merchandise, the right of publicity prevails. Reasoning: Exploitation requirement for right of publicity to survive celebrity’s death= satisfied. Ds went beyond building on the original to duplicating as faithfully as possible the performances of the Marx brothers. The play is not biographical nor can it be viewed as an attempt to convey information about the Marx Brothers themselves. Section 2: Intrusion Froelich v. Werbin Facts: Adair stated that her former husband was gay and Froelich was his love. Adair found out Froelich was ill in hospital and sent a friend to pay to obtain Froelich’s hair from a bandage to have analyzed. Froelich sued for alleged invasion of privacy. Rule: if an invasion of privacy is to be made from evidence it must of necessity be based upon some unreasonable intrusion upon the plaintiffs seclusion. One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another, or his private affairs or Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 concerns, is subject to liability to the other for invasion of this privacy if the intrusion would be highly offensive to a reasonable man. Held: plaintiff failed to establish an invasion of his right of privacy. Failed to establish a wrongful intrusion of such a nature as to outreach for cause mental suffering shame or humiliation to a person of ordinary sensibilities. Reasoning: no evidence in the record to show a physical intrusion into a privately secluded place which Froelich has secured for himself. The plaintiff introduced no evidence that the hair was taken from plaintiff’s hospital room. There was no evidenced the hair was taken from the person of the plaintiff. Plaintiff offered no evidence to establish that his state of mind was disturbed at the time that hair was obtained. Plaintiff did not know the hair had been obtained until three or four months later. Creel v. I.C.E & Associates Facts: Myra Creel seriously injured in a motor vehicle collision. She sought long-term disability benefits. Insurance company commissioned ICE a private detective agency to conduct surveillance and videotape Myra’s activities. Investigators covertly videotaped Mira at church at service is open to the public. Her appeal from denial of disability benefits was rejected. She sued ice for invasion of privacy. Issue: was plaintiffs emotional and physical seclusion and solitude violated by ICE’s covert videotaping of her during the church worship services? Held: no Rule: Claim of intrusion in Indiana requires physical contact or invasion of P’s private space such as his/her home. Reasoning: it is undisputed that the creels were unaware of the videotaping as it occurred and therefore could not have suffered any emotional disturbance from being filmed. The creels were neither alone nor secluded when videotaping occurred. At no time did the investigator have physical contact with the grills. The detective simply captured activity that was open to the public. The creels have no reasonable expectation of privacy in their activities. Medical Lab Mgmt Consultants v. American Broadcasting Companies Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Facts: ABC’s investigative journalism program included a segment on medical laboratories. A representative of ABC had obtained a meeting with medical lab’s owner by posing as someone who wanted to start a laboratory. Owner of greed to the meeting because he thought it might result in some business for medical lab. His visitor came with ABC representatives who posed as a business manager and a computer expert. One had a hidden camera in his wig which recorded the visit. Owner sued for intrusion upon seclusion. Rule: a plaintiff must prove (1) an intentional intrusion into a private place, conversation, or matter (2) in a manner highly offensive to a reasonable person. To prevail on the first prong, plaintiff must show (a) an actual subjective expectation of seclusion or solitude in the place conversation or matter and (b) that the expectation was objectively reasonable. Privacy is personal to individuals and does not encompass any corporate interest. Held: No objectively reasonable expectation of solitude or seclusion in the parts of Medical Lab. No objectively reasonable expectation of privacy in the contents of the conversation. No objectively reasonable expectation of privacy against the secret video taping of communication for future broadcast to general public. Reasoning: Owner’s willingness to invite strangers onto the premises and into the offices indicates that he did not have and objectively reasonable expectation of solitude or seclusion in the parts he showed the ABC representatives. Because the owners conversation with the ABC representatives did not involve his private and personal affairs he did not have an objectively reasonable expectation of privacy in the contents of the conversation. Intrusion here was not sufficiently offensive to state a claim for intrusion upon seclusion. Any offensiveness of the alleged intrusion is mitigated by the public interest in the news gathered. Section 3: Disclosure of Private Facts A. Publication of Private Facts Meetze v. Associated Press Facts: Ps age 12 and 20 had a baby. Mother refused to have picture taken or talk with reporters. AP talked to mother briefly and she said “didn’t want any publicity.” AP published article about her. She alleged exposed her to unwanted public light and object of scorn and ridicule which made her suffer mental anguish and loss of privacy. Rule: one of the primary limitations on the right of privacy is that it does not prohibit the publication of matter which is a legitimate public or general interest. A publication which Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 otherwise does not violate the right of privacy is not rendered violative of such right because it was made maliciously. Held: Facts in this article do not show an unwarranted invasion of the right of privacy. Reasoning: 12 year old giving birth would naturally excite public interest. Gilbert v. Medical Economics Co. Facts: Ds published in periodical Medical Economics an article outlining two instances of allegedly medical malpractice in which patients of the plaintiff suffered fatal or severely disabling injuries in the operating room as result of plaintiffs acts alleged malpractice. To show the substantiality of an inadequate policing of medical personnel, the article discusses plaintiffs history of psychiatric and related personal problems. The article identified plaintiff by name and include her photograph. Rule: the first amendment sometimes protects what would otherwise be an actionable invasion of privacy we’re a publication by the media is involved. The constitutional privilege clearly applies to the public disclosure of private facts. The privilege extends to public figures as well as to private individuals. But the privilege is not absolute. Liability maybe imposed for publicizing matters concerning the private life of another if the matter publicize is of a kind that a. would be highly offensive to a reasonable person and 2. Is it not a legitimate concern to the public. Dissemination of non-newsworthy private fax is not protected by the First Amendment. The privilege does immunize the reporting of private facts however when discuss in connection with matters of the kind customarily regarded as news. Any information disseminated for purposes of education amusement or enlightenment when the public may reasonably be expected to have a legitimate interest in what is published is also protected by the constitutional privilege. Every private fact disclosed in an otherwise truthful newsworthy publication must have some substantial relevance the matter of legitimate public interest. Held: No invasion of privacy. Reasoning: plaintiffs are substantially relevant to the newsworthy topic of policing the medical profession. Serves the legitimate public interest of warning potential future patients and hospitals of the risks they may encounter and being treated by or employing the plaintiff. The Florida Star v. BJF Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Facts: the Florida Star is a weekly newspaper with an average circulation of 18,000 copies. It has a police report section containing brief articles describing local criminal incidents. A Florida star reporter prepared a one paragraph article about a sexual assault. The article included the victims phone name. In printing the victims phone name, the Florida Star violated its internal policy of not publishing the names of sexual offense victims. Held: imposing damages on a talent for publishing the victims name violates the First Amendment. Reasoning: the victims name was obtained from courthouse records that were open to public inspection. Diaz v. Oakland Tribune Facts: P, president of student body, underwent sex change which he hid from all but immediate fam and closest friends. A columnist for OT wrote a column outing Diaz as transgender. P sued for invasion of privacy. Held: Jerry could have reasonably inferred that Jones acted with the intent to rage working million Diaz or that he published the article with a conscious disregard of Diaz’s rights. Rule: plaintiffs have the burden of proving information is not newsworthy. There is a three-part test for determining whether matter published is newsworthy: 1. The social value of the fact published 2. The depth of the article’s intrusion into ostensibly private affairs 3. The extent to which the parties voluntarily acceded to a position of public notoriety Defendants knowledge of the extent and severity of plaintiffs injuries is relevant to the finding of malice Reasoning: Diaz was a public figure for some purposes but the court cannot stay at the back of her gender was newsworthy per se. There is little if any connection between the information disclosed and ideas his fitness for office. Jones’s attempt at humor removes all pretense that the article is meant to educate the public. The social utility of the information must be viewed in context. John new DS would suffer severe emotional distress from the publicity. Norris v. King Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Facts: Norris was arrested for theft of money from the laundromat. During the fast photographs were taken of him. Defendant King posting photographs of Noris above the bulletin board in the laundromat. Issue: Were King’s actions an unlawful invasion of the right of privacy of Norris? Held: Yes. Rule: a creditor may employ any reasonable non-courses method an attempt to collect that which is owed to him. But when he oversteps the bounds of propriety and takes unreasonable coercive action, he committed tortious conduct for which the law provides a remedy. Reasoning: defendant denied displaying the pictures to pressure plaintiff into making restitution. But he deleted six or seven months before posting the pictures. There was repeated harassment here. Court finds no public interest served by defendants actions so as to bring him within the protection of the rights of free speech and press. Any such rights he had were lost to him when his motives evolved into continued punishment and harassment of the plaintiff. B. Disclosure without Publicity Swinton Creek Nursery v. Edisto Farm Credit Facts: plaintiffs barred money from defendant to expand his nursery business. He defaulted on the loan payments and undertook to liquidate the assets of the business. Plaintiff found a buyer who Agreed to pay for the assets. Buyer then applied to defendant for a loan. Defendant’s loan officer sent the buyer a letter stating the operation you are purchasing has been under financial duress. Plaintiff sent defendant for disclosure of his financial problems including the letter to the buyer. Held: no evidence to support a claim of public disclosure of private facts Rule: publicity, as opposed to mere publication, is what is required to give rise to a cause of action for this branch of invasion of privacy. Communication into a single individual or to a small group of people will not give rise to an invasion of privacy claim. Publication here include any communication by the defendant to a third person. Publicity means that the matter is made public by communicating it to the public at large or to so many persons that the matter must be regarded ask substantially certain to become one of public knowledge. Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 It is not an invasion of the right of privacy to communicate a fact concerning the plaintiffs private life to a single person or even to small group of persons. The distinction is one between private and public communication. Public disclosure of private fax requires disclosure akin to publications in mass media. Breach of confidentiality and invasion of privacy are not so closely connected in law at the presence of the former obvious proof of publicity in the latter. ** Publicity is a requirement of liability. Reasoning: the contents of the letter were published only to the buyer. McCormick v. England Facts: Dr. England was the family physician for McCormick her former husband and their children. They became involved in a divorce action which custody was at issue. McCormick’s husband submitted two letters to the family court regarding McCormick emotional status one from a licensed social worker Mr. Myers who alleged that McCormick had a severe drinking problem and one by Dr. England diagnosing McCormick with major depression and alcoholism. McCormick sued alleging that England breached a duty of non-disclosure of confidential communications with the plaintiff regarding her mental health conditions by publishing and disseminating these confidential communications to the public. Held: Remanded. Rule: An actionable tort lies for a physician breach of duty to maintain the confidences of his or her patient in the absence of a compelling public interest or other justification for the disclosure. The existence of a cause of action for invasion of privacy is this thing was Schübel distinguished from an action for a physicians breach of confidence. And innovation of privacy claim prescribed the conduct to that which is highly offensive and likely to cause serious mental injury. This standard is not consistent with the duty attaching to a confidential relationship because it focuses on the content rather than the source of information. The requirement of publicity is a limitation which would preclude many cases involving a breach of confidentiality. the duty of confidentiality is not obsolete. Public policy requires that a physician made reach the duty where it is reasonably necessary to protect the interest of the patient or others. Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Rule: a professional duty to maintain his clients confidences is independent of the issue whether he can be legally compel to reveal some or all of those confidences, that is, whether those communications are privileged. Reasoning: SC does not recognize the physician-patient privilege. the record is incomplete on whether the disclosure was necessary for the protection of the children. On remand court should consider whether under the circumstances Dr. England’s disclosures were privileged. Section 4. False Light Leverton v. Curtis Publishing Company Facts: plaintiff was in a car accident when she was 10. A newspaper photographer at the scene took a photograph of her being lived into her feet by bystander. The photo appeared in a newspaper the next day. 20 months later it was used as an illustration for a magazine article on traffic accidents. Plaintiff claimed the publication of her picture violated her right of privacy. Issues: (1) is the privilege involved in the original publication Lost by the lapse of time between the date of the original publication immediately following the accident and the reappearance of the plaintiffs picture 20 months later? (2) if the privilege has not been lost collapse of time, is it lost by the using of the plaintiffs picture, not in connection with a news story, but as an illustration heading an article on pedestrian traffic accidents? Held: immunity from liability for the original publication was not lost through laps of time when the same picture was again published. The second publication was an actionable invasion of the plaintiffs right of privacy. Reasoning: the use of the picture had nothing to do with plaintiffs accident. It was related to the general subject of traffic accidents and pedestrian carelessness. This particular plaintiff, the legitimate subject for publicity for one accident, now became a frightful example of pedestrian carelessness. Uhl v. Columbia Broadcasting Systems Facts: CBS special “Guns of Autumn” featured hunting video clips juxtaposed in a way that made P appear in false light of a hunter who engaged in unethical shooting of goose on the ground. Did not actually do that. Sued for false light. Rule: in a false light case, common-law malice—frequently expressed either in terms of personal ill will toward the plaintiff or reckless or wanton disregard of the plaintiffs rights— would focus on the defendant’s attitude toward the plaintiffs privacy, not toward the truth or falsity of the material published. Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Cain v. Hearst Corp. Facts: Cain is a prison inmate who sued Hearst Corporation claiming that a newspaper article invaded his privacy by placing him in a false light. Canes complaint is that the article printed false information that he was a member of the Dixie mafia and then get killed as many as eight people. Held: court declined to recognize a cause of action for false late invasion of privacy when recovery for that tort was substantially duplicated by towards already established in Texas. Rule: defamatory speech is only that which defames. False light may be brought against any interest to which the subject of the speech takes on bridge. Under false light, any fact in a story, no matter how seemingly innocuous, may prove to be the basis for liability. Chapter 6: Defamation Section 1: Defamatory Communications A. Defamatory Meanings Denny v. Mertz Facts: P Denny was employed by Koerhring Co. Was openly critical of Mertze’s performance as chief executive. BusinessWeek publish an article about the change management in the company. Denny began to question many of the companies management decisions until Mertz fired. The article related Mertz’s actions as the chief executive and implied he was responsible for low management morale and the companies poor performance in recent years. Denny brought a libel action against Mertz and the publisher of BusinessWeek alleging that birds defeat 10 by telling the BusinessWeek interviewer that Mertz had fired Denny. Rule: a communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community order to deter third persons from associating Or dealing with him. The words alleged to be libelous are to be construed and taken and they’re playing and popular sense. Words or elements in an article may not be considered in isolation, but must be viewed in the context of the whole article to determine if they’re defamatory. Held: Complaint not legally insufficient to state a claim. Reasoning: Bull the statement that plaintiff was fired and the article as a whole could be understood by reasonable people in a defamatory sense. Reasonable people could conclude Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 that a person being fired would tend to injure their reputation or diminish the esteem that people have for him. That’s a jury question. Hepburn v. TCN Channel Nine Pty. Ltd. Facts: P abortionist sued on account of statements made in tv broadcast by D including that the P is an abortionist. Held: Allow case to go to jury. Rule: With issues of public controversy, where contradictory attitudes exist, a man can justly complain that the words which lower him in the estimation of a section of the community were published to members of it, even though those same words may make him a hero to others. Reasoning: P can claim to have been disparaged even if “abortionist” meant lawful abortionist and if it meant “unlawful abortionist.” Burton v. Crowell Publishing Co. Facts: D published an ad made up of texts and photos and one photo was susceptible of being regarded as P being guilty of indecent exposure, physically deformed, and mentally perverted. Held: Because the picture taken with the legends was calculated to expose P to more than trivial ridicule, it was prima facie actionable. Fact it did not assume to state a fact or opinion is irrelevant. Subjected P to ridicule and contempt. There was no countervailing interest in protecting truth as a defense. Rule: The gravamen of the wrong in defamation is not so much the injury to reputation, measured by the opinions of others, as the feelings which those opinions engender. B. Reference to Plaintiff Giaimo v. Literary Guild Facts: P couple submitted photos of themselves for diamond company ads. D photographer turned them over to an advertising agency which used them without plaintiff’s authorization to illustrate an ad for a book about a crazy marriage. Argue use of the photo implies they are referred to by the text. Sued for libel and invasion of privacy. Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Rule: In order for a P to maintain an action for a defamatory statement, it must appear that they are the persons concerning whom it was made. Must be shown publication was “of and concerning” them. Not necessary they be named if the allusion is apparent. Held: No cause of action for libel. Reasoning: Article accompanying photograph in no way implies is about Ps. Prominently displays author’s name and clearly states is a biographical account of her marriage. Helmicks v. Stevlingson Facts: P alleges that D made libelous comment about him when said the Bank he worked at was “loaned to death by former cashier.” P alleges they intended to charge that the bank closed due to P’s actions. Bank was in existence since 1905 and it was only from 1930-1932 that P was cashier of the bank. Held: No cause of action. Reasoning: Words “former cashier” are applicable to other persons than solely the P. Not particular enough to P to be libelous to him. D’s admission solely to P that it intended the published words to refer to P does not constitute a publication to some third party, which must occur before actionable injury to reputation results. Bindrim v. Mitchell Facts: P is licensed psychologist and D is an author. P used “Nude Marathon” as group therapy. D set out to write novel and attempted to register for nude marathon. P told her she was not permitted to attend if was going to write about it in a novel. P said was attending solely for therapeutic reasons and had no intention of writing about it. Then 2 months later entered into K with publisher for $150k for her novel. P claims injured professional reputation and was IDd by colleagues as the character in the book. Rule: as a public figure, plaintiff is precluded from recovering damages for a defamatory falsehood relating to him, unless he proved that this statement was made with actual malice, that is, that it was made with knowledge that is false or with reckless disregard of whether it was false or not. Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 The test is whether a reasonable person reading the book what understand that the fictional character there and picture was, in actual fact, the plaintiff acting as described. Publication for purposes of defamation is sufficient when the publication is to only one person other than the person defamed. Held: No cause of axn. Reasoning: Mitchell’s reckless disregard for the truth was apparent from her knowledge of the truth of what transpired at the encounter and the literary portrayals of that encounter. But plaintiff failed to prove by clear and convincing evidence that the original hardback publication was made with knowledge of falsity or in reckless disregard of falsity. The question of whether a reader would identify the plaintiff with the doctor of the book as fictional embroidery or as reporting actual language and concepts for the jury. Arcand v. Evening Call Publishing Co. Facts: Ps= 21 members of police dpt. Ds responsible for publication of column which closed with question “Is it true that a Bellingham cop locked himself and a female companion in the back of a cruiser and had to radio for help?” Ps claims personal and professional damage. Issue: Whether D’s allegedly defamatory newspaper column made sufficient reference to Ps to withstand MTD the complaint? Held: No cause of axn. Rule: Defamation of a large group gives rise to no civil action on the part of an individual member of the group unless he can show special application of the defamatory matter to himself. A civil action is recognized if a defamatory statement applies to all members of a small group. Defamation of a part of a group can give rise to a cause of action, only if a high degree of suspicion is indicated by the particular statement. No case in which a group libel, justifying suit by all members, was held to arise from a slur against one unidentified member. Reasoning: Here a defamatory statement aimed at only one unidentified member of a group of 21. Cannot be thought to suggest that the conduct of one is typical of all. Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Neiman Marcus v. Lait Facts: A book alleged some models of the NM store in Dallas were “call girls” and that “most of the male staff are fairies.” Salesmen and women sued. Held: Salesmen could maintain action but saleswomen could not. Reasoning: Suspicion attached to all the salesmen, but the saleswomen constituted too large a group for the public to interpret the book’s statement as a reference to any individual. C. Publication Hedgpath v. Coleman Facts: D was merchant and postmaster. His storehouse and safe were broken into. Soon thereafter, P, a boy, found in his individual mailbox a letter threatening him and accusing him of things. P showed it to his bro Hedgpath who showed it to D. D denied writing it but said that he “was knowing to it” and efforts were being made to find who had broken into the store. Rule: The publication of a slander involves only one act by D; he must speak the words so that some third person hears and understands them. The publication of a libel requires D compose and write the libel, delivers the libel to some third person, and then third person reads or understands its contents. It is not necessary that the defamatory words be communicated to the public generally or even to a considerable number. It is sufficient if they be communicated only to a single person other than the person defamed. Reasoning: The fact that the paper may have only been seen by P’s brother and one more person does not exonerate D on the ground there was no communication to the public. Communication of libelous matter to the person defamed does not constitute a publication. There is no publication such as to give rise to a civil action we’re libelous matter is sent to the person libeled, unless the center intends for his reason to suppose that the matter will reach third persons (which in fact happens) or such results naturally flows from the sending. Held: the D must have foreseen P’s necessary exposure of the letter as the natural and probable result of the libel. Act of D was the proximate cause of the publication. *There is publication when D communicates with P knowing that a third person will receive the communication at the same time, as when D speaks to P with knowledge that third persons can hear and understand the communication, or posts a notice for P with knowledge other persons will see it. Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Vermaak v. Van der Merwe Facts: During a phone convo, Mrs. Classons asked respondent if she could speak to his wife. He repied “Havent you heard she is staying with that damn lesbian?” and made clear he was referring to appellant. Mrs. Crossens said at time she did not know what the statement meant. Issue: Must there be contemporaneity between the communication of the defamatory statement and the understanding of its defamatory meaning by the communicatee? Held: No. Reasoning: The statement here was published. The communication and discovery of the meaning of the word by Ms. Classons were substantially contemporaneous. Her husband explained it to her right after she hung up the phone. Vizetelly v. Mudie’s Select Library secondary publisher liability Facts: Archibald Constable & Co. published a book falsely defaming the P. Notice sent out requiring all books be pulled from circulation. Ds were lending copies of the original work to subscribers and selling surplus copies of it. None of those engaged in conduct at D’s business had seen the notices although D’s took in those papers. Held: Dismissed. Rule: As regards a person who is not the printer or the first or main publisher of a work which contains a libel, but has only taken a subordinate part in disseminating it, the particular circumstances under which he disseminated the work must be considered. If he did it in the ordinary way of his business, the nature of the business and way in which it was conducted must be looked at. If he succeeds in showing (1) that he was innocent of any knowledge of the libel contained in the work disseminated by him, (2) that there was nothing in the work or circs in which it came to him or was disseminated by him which ought to have led him to suppose that it contained a libel, and (3) that when the work was disseminated by him, it was not by any negligence on his part that he did not know that it contained the libel, then he may be held not to have published the libel. But the onus of proving such facts lies on him (the secondary publisher) and the question of publication or non publication is in such a case one for the jury. Lunney v. Prodigy Services Company Facts: Imposter opened email accounts with internet service Prodigy under name of Alex Lunney. Under Lunney’s name, imposter sent threatening email to Boy Scout leader in area where real Lunney resided. Lunney sued Prodigy contending messages defamed him and Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Prodigy was responsible for their publication. Prodigy had Ai system for removing epithets from messages on its network. Rule: he who furnishes the means of convenient circulation, knowing, or having reasonable cause to believe, that it is to be used for that purpose, if it is in fact so used, is guilty of aiding in the publication and becomes the instrument of the libeler. Subsequent authority makes it clear that no potential for liability exists unless the defendant in question has some “editorial or at least participatory function” in connection with the dissemination of the defamatory material. Held: prodigy cannot be considered a publisher. Reasoning: Application of any unintelligent automated Word exclusion program of the type that prodigy is cannot be equated with editorial control. Intelligent editorial control involves the use of judgment and no computer program has such capacity. There is no evidence in the record that a human being working for prodige approved the transmission of the email or bulletin board messages complained of by the plaintiff. Even if prodige could be considered a publisher is protected by qualified privilege. Traditional Cat Association Inc. v. Gilbreath Facts: P Finneran was pres of TCA. He established TTCA another org, and commenced lawsuits against TCA and its officers. One of the TCA officers created a website highly critical of Finneran and TCA. Webpage was unaltered since posted. F sued for defamation. Held: Ps cause of axn for defamation arose no later than the first date it was posted on the webpage. Rule: P’s claim governed by single-publication rule. For any single edition of a newspaper or book, there was but a single potential action for a defamatory statement contained in the newspaper or book, no matter how many copies were distributed. Publication generally is said to occur on the first general distribution of the publication to the public. Repetition of the defamatory statement in a new edition of the book/paper constitutes a new publication of the defamation that may give rise to a new cause of action. Cause of action accrues and period of limitations commences, regardless of when the P secured a copy or became aware of the publication. The single publication rule applies to internet publishers. New views of webpage are not new publications. Section 2: Common Law Defenses A. Truth Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Shihab v. Express-News Corp. Facts: Magazine Texas Monthly published article highly critical of 2 newspapers published by Express. Portion of article accused Express reporter Shihab of fabricating news stories. No evidence in record suggesting stories were fabricated by P. P argues proof of fabrication of a story other than the 2 accused of in the article cannot be relied on by D’s as defense to the libel axn. Held: Judgment for Ds. Rule: truth is available as a defense only where the misconduct is of a substantially different kind from the misconduct charged. The test is whether the defamation as published to affect the mind of the reader or listener in a different manner then would the misconduct proved. If the effect on the mind of the recipient would be the same, any variance between misconduct charged and the misconduct proved should be disregarded. Reasoning: the just of the accusation of fabricating those two stories was the charge of fabrication and the specific accusations were no more damaging to plaintiffs reputation any simple charge of fabrication or a charge that he fabricated one different separate story. The reference to the two specific stories did not substantially aggravate or give additional lead to the main charge of fabrication. Crane v. NY World Telegram Corp. Facts: appeared in a column of the NY WT newspaper information that crane now under indictment had his lawyers launching a pricey defamation suit. He filed action for libel. Held: defense of the truth of the publication is insufficient. Defense that plaintiff enjoyed a bad general reputation prior to the label is insufficient also. Reasoning: the publication complained of could reasonably be read and interpreted in only one way, that is, as charging that plaintiff had been indicted by the grand jury for some crime. That is the ordinary meaning of the term indictment. Defendants claim that the word is used to signify an accusation by private persons uses a sense of the term so rare that no reader what understand it or accept it. Rule: a plea of truth as justification must be as broad as the alleged libel and must establish the truth of the precise charge therein made. While defendant may offer proof of plaintiffs bad general reputation prior to publication to reduce the value of the injured interest, he may not plead or prove for that purpose specific acts or instances of plaintiffs misconduct having no connection with the charge of the libel. Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 B. Absolute Privileges Mills v. Denny Facts: plaintiff and attorney sued for defendant making a statement intended to injure him and his business at a conference which is false and defamatory. Defendant told plaintiff that he was guilty of dereliction of duty as an attorney and appeared only as a publicity stunt. The story was printed in a local newspaper. Defendant alleged he made his comment as mayor and member of city Council and therefore it was a privilege communication. Rule: The utterances or publications of members of a city council are not absolutely privileged communications. privileged communications are divided into two main general classes (1) those that are absolutely privileged and (2) those that are qualifiedly or conditionally privileged. An absolute privilege affords a complete defense. Even the existence of actual malice will not destroy an absolute privilege when it is applicable. Absolute immunity should be confined to cases where there is supervision and control that other authorities. The question as to whether or not there is privilege is for the court. A member of Congress or of state legislature is absolutely privileged to publish false and defamatory matter of another in the performance of his legislative function. But the proceedings of subordinate bodies performing a legislative function such as municipal councils or town meetings are not within the policy underlying absolute immunity Reasoning: Council action does not exercise legislative or judicial functions intended to merit the privilege of absolute immunity. Adams v. Peck Facts: Mom in custody battle went to psychiatrist who sent written report to attorney expressing that father was abusive and mentally ill. Psych urged all visitations with father stop. Father alleged false and maliciously defamed him. Psychiatrist argued absolute privilege bc made in connection w pending divorce litigation. Rule: any defamatory statement which appears any document prepared for possible use in connection with a pending judicial proceeding should be accorded an absolute privilege, regardless of whether the document has been filed. Held: absolute privilege applies. Stukuls v. State Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Facts: Dr. Corey took a letter from pres’s private file and read it to a committee charged with passing upon P’s qualifications for tenure at state university. Letter accused him of sexual assault and marital infidelity. Letter never verified. P denied tenure and injured reputation. Issue: Did Dr. Corey have absolute privilege? Rule: Unless an official is a principal executive of state or local govt or is entrusted by law w admin or executive policy-making responsibilities of considerable dimension, he does not have absolute license to defame. Reasoning: Neither of Dr. Corey’s roles as acting pres and vp of the college fall within absolute privilege role types. His functions are akin to those exercised by heads of schools. Luttrell v. United Telephone System Facts: Baranek told his supervisor P was illegally taping phone convos and Baranek asked P to stop but he persisted. Communication of the same defamatory info was also made by the supervisor to others. D argues intracorporate communications did not constitute publication. Issue: Do intracorporate communications between supervisory employees, acting within scope of their employment, regarding work of another employee, constitute publication to a third person sufficient for a defamation action? Held: Yes this is publication. C. Qualified Privileges Benassi v. Georgia-Pacific Facts: P was involved in two incidents on business trips after drinking. His manager received an anonymous letter detailing the incident. Manager decided to fire P and told other employees he was fired for being drunk and misbehaving in a bar and had a drinking problem. Held: Abuse of privilege was for jury to decide. Rule: Qualified privilege may be forfeited if it is abused for any of 4 purposes: 1. Ds lacked belief or had no reasonable ground for belief in the truth of the complained of statements 2. the complained of statement was published for some purpose other than that for which the particular privilege is given 3. the complained of statement is made to some person not reasonably believed to be necessary for the accomplishment of the purpose of the particular privilege Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 4. the complained of statement included defamatory matter not reasonably believed to be necessary to accomplish the purpose for which the particular privilege is given. Reasoning: Employees two ranks below P heard the offending speech. Was no reason for them to hear that info. Green Acres Trust v. London Facts: Lawyer Ds met to review a draft of a class action complaint to be filed against Green Acres which challenged sales technique used by GA to sell prepaid funerals. During meeting, reporter arrived and received copy of complaint. Reporter wrote article and quoted clients and lawyer Ds and unfavorably characterized marketing scheme. GA sued for defamation based on communications made by lawyer Ds to Reporter. Held: no absolute or qualified privilege to defame protected the lawyer Ds communications with the reporter. Rule: The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported. Report must be fair and accurate. A pleading must be filed with the court before the privilege may apply to reports which describe the pleading. Absent filing, a drafted complaint is not a “public” matter. The privilege does not extend to a report of a private meeting, not open to the general public. London Artists Ltd v. Littler Facts: Play staged by Emile Littler in theater managed by Prince Littler his brother. Mgmt wanted to move the play from the Lyric Theater to the Her Majesty’s Theater. Emile wrote a letter to the four artists in the play accusing mgmt of trying to get his play out of the theater. Emile argued privilege and fair comment justification. Stars all gave evidence there was no combination at all. Rule: In fair comment, commentator must prove the basic facts to be true. In justification he must also prove that the comments and inferences are true. P is entitled to defense of fair comment if a reasonable man could honestly hold that opinion. “Fair comment upon a matter of public interest” has 3 main requirements: (1) the matter published be a comment (2) be fair and (3) be on a matter of public interest. Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Held: This was a matter of public interest. But Emile went beyond bounds of fair comment. Reasoning: was carried away by his feelings and did not wait long enough to check facts and get them right. Section 3: Constitutional Law Gertz v. Robert Welch Inc. Facts: Gertz was an attorney hired by a family to sue a police officer who had killed the family's son. In a magazine called American Opinion, the John Birch Society accused Gertz of being a "Leninist" and a "Communist-fronter" because he chose to represent clients who were suing a law enforcement officer. Was untrue. Issue: Whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure may claim a constitutional privilege against liability for the injury inflicted by those statements? Held: No. Reasoning: Gertz was not a public official because largely unknown in the community. Gertz's rights had been violated and ordering a new trial. The application of the New York Times v. Sullivan standard in this case was inappropriate because Gertz was neither a public official nor a public figure. In the context of the opinion, Powell advanced many lines of reasoning to establish that ordinary citizens should be allowed more protection from libelous statements than individuals in the public eye. First, the recklessness standard applies only to defamation of public figures or public officials. Second, even for private individuals, states may not impose strict liability on news media. And third, any standard of fault less then recklessness limits private persons to actual injury. No constitutional value in false statements of fact. States should decide legal remedies for defamatory falsehood injurious to reputation of private individual. States may only permit punitive damages when there is actual malice. Otherwise P can only get damages for actual injury. Stone v. Essex County Newspapers Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Facts: Pearson, a reporter, had trouble hearing Jones’ son during his court proceeding for possession of narcotics. Pearson wrote a story translating Mr Stone to refer to P’s father’s name. Editor did not go back to check reporter’s notes, though surprised. Also did not communicate any concern about story to his superiors. Held: Private persons, as distinguished from public officials and public figures, may recover compensation on proof of negligent publication of a defamatory falsehood. Reasoning: Pearson did not have actual malice but editor Coltin may have. Rule: Amount of time necessary and available for checking a story might be considered relevant. Wolston v. Reader’s Digest Association Facts: RDA published a book on the KGB which listed Wolston as a Soviet agent. She sued and said statements were false and defamatory. Petitioner had rejected a grand jury subpoena and then after resumed private life. Held: Petitioner was not a ltd purpose public figure. Rule: Court must focus on nature and extent of an individual’s participation in the particular controversy giving rise to the defamation. Simple fact events attracted media attention is not conclusive of a public figure issue. A libel D must show more than mere newsworthiness to justify imposing the burden of New York Times. Reasoning: He was dragged unwillingly into the controversy. He never discussed the matter with the press and ltd his involvement to that necessary to defend himself against the contempt charge. Downloaded by Brett Welling ([email protected])