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Torts II
University of Kansas School of Law
Westerbeke, William E.

TORTS II – Westerbeke Fall 2006

Essay first. 1 hour mc. 20 min on defamation , 20 on misrep, 10 min on privacy, 10 min malicious prosecution. (nothing on tortious interference) . MCQ – 40 questions. 4 choices. Pick the best.

a.        Prima Facie case
i.         Publication to 3rd party
ii.        Allegation of falsehood
iii.      Understood as defamatory by P
iv.      Causation and Damages
b.        Who can be defamed? All living persons (defamation and right to privacy do not survive death), and corporations, partnerships etc.
c.        Various types of Defamation:
i.         Ambiguous statement :
1)       Belli ( lawyer had “ taken” the Florida BA by running clothing bills):
2)       Ct determines as a question of law whether the term could reasonably interpreted as defamatory.
3)       Jury then decides whether the term in fact ‘was’ defamatory – using the COMMON MIND std.
ii.        Implication :
1)       Grant ( lawyer associated w/ communist party)
2)       If a substantial no. of people will think less of P , then implication may be sufficient as defamatory ( not just right thinking people – enlightened )
3)       Policy: majority of the people are not enlightened.
iii.      Lie similar to truth
1)       Killian ( Veteran falsely accuses colonel to spice up novel)
2)       Modern view: so long as the essence is accurate – defense of truth
3)       CL: Statement should be ‘absolutely true’ in order to be used as a defense.
4)       D has the burden to prove truth. Then P proves falsity.
iv.      Mixing fact w/ fiction
1)       Bindrim ( Nude Marathon- only those who attended could identify psychologist).
2)       Ct used the RPP std.
3)       Note: In this case, P did not raise the issues of damages – which were not present.
v.        Group Defamation:
1)       Neiman-Marcus ( 382 saleswomen referred to as prostitutes)
2)       Large groups: may not claim defamation even if the language is inclusive (“ all”).
3)       Small groups may claim defamation when each and every member is referred to.
(a)      The term “ all” is important. Cts split when no member is named
4)       Approaches to determine quantity:
(a)      Numerical Approach ( RT 564 A) : if the magic number is not a special damage. / slander action is not for wounded feelings.
vii.     Harm caused by the repetition of 3rd party is considered too remote
b.        Damages for slander:
i.         General damages if P can show special damages (those actually suffered by P as a natural consequence of D’s conduct- rather than those presumed by the law).
1)       Special Damages include:
(a)      Loss of marriage
(b)     Loss of hospital gratuitous entertainment
(c)      Preventing a servant/bailiff from getting a place
(d)     The loss of customers
(e)      Whenever a person is deprived of what would’ve been conferred upon.
ii.        General damages without a showing of special damages when the case is of slander per se.
c.        Differentiating between libel and slander
i.         Shor ( nation wide telecast)
ii.        Rules of libel instead of slander apply if exhibition leaves a lasting impression similar to written words
iii.      Precendent: reading from a manuscript, loud speakers.
iv.      Factors considered:
1)       Permanence/ persistence of form
2)       Area of dissemination
3)       Deliberate or premeditated character of publication. .
a.        Publication could be intentional or negligent.
b.        Elements ( RT 577)
i.         Intentionally communicated
ii.        Orally or through gestures
iii.      to a third party who understood it
iv.      or D failed to exercise due care in communication to 3rd person => negligent.
c.        Another language:
i.         Economopolous: defamation in another language that no one understands is not a defamatory publication.
d.        Types of Publication:
i.         Original
ii.        Republisher
iii.      Disseminator: Only held to a std of due care. Not liable for failing to check contents and no knowledge what so ever of any defamatory material.  
e.        Damages:
i.         Measure of damages is by the no. of copies sold.
ii.        At CL every delivery of libelous matter was a new publication => a new coa. Thus, original defamer’s liability would increase by whatever harm inflicted to reputation if (RT 576):
1)       Republication was intended by D, or if
2)       He could reasonably foresee republication
iii.      This is still the general rule except with books, periodicals and newspapers ( single publication rule).
f.         Repetition by P:
i.         No liability to D unless P reasonably needs to consult someone (blind or illiterate).
ii.        No liability to employer when P needs to repeat (reason for leaving) to potential employer.
g.        Privileged: Communications between employees/ stegnographer .
h.        No intent to publish
i.         No liability to D if heard by a concealed listener
ii.        No liability if defamatory letter is unexpectedly opened ( exception: If D knows or should know that someone else will hinder with the mail=> negligent publication).
iii.      Postal service makes no publication when it delivers
i.         Open mail
i.         Post cards: Some cts say that you need to show that it was read. Others presume that it was.
ii.        Publication when telegraph co. transmits msg.
j.         Failure to remove: may be held liable.
k.        Information Service Providers
i.         Carafano ( bogus profile about Actress on Matchmakers)
ii.        ISP ( a secondary publisher) not liable unless it was an Information Content provider.
1)       Exception: when it is put on notice.
iii.      Policy: encourages free exchange of information/ robust debate, online. Promotes voluntary monitoring of offensive material.
iv.      Communications Decency Act: Immunized ISP in order for it to monitor contents for kids.
l.         Statute of limitations: SoL for an action runs from first publication since the sale or delivery of a book, periodical or newspaper does not create a sep coa .
i.         Policy: in this age of the internet, cts need to limit huge litigations.
a.        False quotes: deliberate alteration of words is equal to knowledge of falsity when the alteration is a material change in the meaning conveyed. An altered quote is not protected even if it is the rational interpretation of actual statement.
b.        Constitutional privilege ( only for cases of public concern): allowed ( unless there is actual malice/damage) for
i.         Public officials
ii.        Public Figures
iii.      Matters of public concern
1)       Policy: P’s right to be free from Def must be balanced against right of people to receive info of public interest.
i.         Tests to determine whether P is public figure:
1)       If P has assumed the role of special prominence in the affairs of society
2)       If P, has thrust herself to the forefront of a public controversy in order to influence the resolution of the issues involved.
ii.        5 elements to prove that P is a public figure: question of law.
1)       P has access to effective communications
2)       P voluntary took the role of prominence
3)       P sought to influence outcome of the controversy
4)       Controversy existed prior to the defamation.
5)       P was a public figure at the time of the suit
iii.      A person is an involuntary public figure when:
1)       He has pursued a course of conduct from which it is reasonably foreseeable that a public interest may arise.
iv.      A person is an official when:
1)       They have, or appear to have, substantial responsibility for or control over the conduct of governmental affairs.
d.        Public officials and actual malice:
i.         New York Times v. Sullivan(newspaper ad criticized racial action by officials towards Al. uni students):
1)       Rule: News media (and private citizens) can defame public officials as long as the publication occurs w/o actual malice. It’s one of the 1st amendment guarantees of free speech.
2)       Policy:
(a)      Guarantee of truthfulness imposes self-censorship and dampens free choice.
(b)     To encourage robust debate
(c)      An off assumes the risk of false criticism. He has the privilege to rebut.
3)       Rule analogous to that which protects public officials for their non-malicious statements abt private individuals.
4)       Scope:
(a)      Rosenbloom case- Sued papers as they didn’t say he “allegedly” sold porn. He wasn’t a public figure, but the Ct. said that this was an issue concerning the public => subject to NY.
5)       Notes:
(a)      Privilege of fair comment at common law ( w/o ref to constitution ) to criticize govn officials.
ii.        Reckless disregard as malice
1)       St. Amant v. Thompson( political speech on TV against sheriff).
(a)      Test: whether D in fact

factual statements so no free pass on defamation.
a.        Absolute and & conditional privileges: Need to be pleaded and proven by D. Reason: to protect an important public interest.
b.        Truth: at CL burden on D to prove truth. Today, burden is on P
c.        Consent: when P asks for info and gets a defamatory report
d.        Retraction Statutes: statutes allow publisher to retract statements. Special damages recovered but not general damages
e.        Right of reply: some statutes require media D to give P a right of reply. These statutes are unconst for newspapers, but upheld for TV
a.        Absolute privileges: these are a complete defense to any action for publication – even if the statements have malice, excessive publication, or abuse.
i.         Governmental privileges:
1)       Judicial: Witnesses, attorneys, judges, jurors and the parties in the litigation – provided statements are relevant (great latitude).Applied to all admin. proceedings that are judicial in nature.
2)       Legislative: All federal and state legislative members on the floor or in the committee. Relevancy not required. Holding a press conference is out on the floor – only in the Senate.
3)       Executive: Top cabinet grade executives of state (lower officers are generally granted conditional priv) or generally all federal govn (ranking is not determinant rather it is the scope of their duties). Relevancy is required.
ii.        Domestic: immediate family
iii.      Necessity of printing and listing notices of law
iv.      Campaign ads
b.        Conditional privileges: to protect
i.         Personal interest( for your own interest and reputation but w/ no malice)
ii.        Common interest: discussing pros and cons of applicants. Freedom to volunteer info -RT 596
iii.      Third party/public interest: telling about neighbor’s activity to police. Weight given to whether the info was requested or volunteered.
iv.      Matters of public concern- true commentaries
v.        Other: credit reporting or fair comment on newsworthy events
c.        These may be lost if the privilege is abused.
i.         Actual Malice
ii.        Excessive publication–telling more people than nec ( loudspeaker).
iii.      publication for an improper purpose
iv.      publication not bearing on the interest to be protected
v.        Lack of belief in the truth of the statement
d.        Employer privilege- Sindorf: (D w/o request, cautions “watch your inventory”. Implies employer is a thief. Coa: slander).
1)       Rule: If D acts in malice or reckless disregard of the truth – he loses his conditional priv.
a.        Constitutional limitations on Damages: free speech & debate
b.        Punitive Damages: Some states have disallowed altogether, others require ‘actual or common law malice’
c.        No injunctions
d.        Actual Damages: damages to reputation- emotional plus economic – job lost etc.
e.        Incremental harm doctrine: if additional harm is nominal , then no relief. -P’s reputation so low/ has become “libel proof”.
f.         Declaratory relief action: solely for nominal damages.
I.         PRIVACY
a.        Definition: Interference with the “right to be left alone” that results in injury to feelings, without regard to any effect on property, business, or reputation.
b.        Prima facie case
i.         Act by D : words or any affirmative act
ii.        Highly intrusive  invasion of P’s privacy ( RPP)
iii.      Intent , negligence or strict liability (constitutional priv may affect SL)
iv.      Causation & Damages