Defamation and

Invasion of Privacy
Anglo-American Law 2003
Components of a Defamation
Claim Part I
 Defamatory Statement: A statement is
defamatory if it tends to damage a person’s
reputation. The statement must be an assertion
of fact, not an opinion.
 Publication: The plaintiff must prove that the
defendant communicated that statement to
someone other than the plaintiff. “Publication” is
using any means of communication (speech,
email, pictures) to convey the defamatory
message to another person.
Components of a Defamation
Claim Part 2
 Fault: There must be some fault on the
defendant’s part. He must have been at least
negligent as to whether the things he said
about the plaintiff were true or not.
 Special harm: Depending on the nature of
the defamatory statement, a plaintiff may
need to show “special harm” (financial
damage) from the statement.
Defamation: Distinguishing
Between Libel & Slander 1
 Libel is the term for defamatory statements
that are published by written or printer matter,
or which are published in any physical form.
 Plaintiff need not prove actual harm to reputation;
special damages
 Slander is the term for defamatory
statements that are communicated orally.
 Plaintiff must generally prove special damages.
Defamation: Distinguishing
Between Libel & Slander 2
 Plaintiff must prove slander damages
reputation, unless slander per se:
 Plaintiff has committed crime.
 Plaintiff has a “loathsome disease,” esp. a
sexually-transmitted one.
 Slanderous statement harms the plaintiff’s
business or trade (e.g. “Mr. Jackson cheats the
customers who shop at his store.”)
 Plaintiff accused of serious sexual misconduct.
Invasion of Privacy 1
 Key distinction between Defamation and Invasion
of Privacy: Statement must be a false statement of
fact to be defamatory. But true statements can be
actionable as Invasion of Privacy.
 Main Categories of Invasion of Privacy:
 Misappropriation of Identity: The defendant uses the
plaintiff’s picture or name (usually to sell a consumer
product) without the plaintiff’s consent.
 Intrusion into his solitude or seclusion: Plaintiff can
sue if the defendant has intruded into her private physical
space (usually her home) in a manner that would be
“highly offensive to a reasonable person.”
Invasion of Privacy 2
 Publicity of Private Life: Plaintiff can sue if
the defendant has publicized private details
of his personal life in a way that would be
highly offensive to a reasonable person.
 “False Light” Invasion of Privacy: Plaintiff
can sue if he is placed before the public eye
in a “false light,” and if the way in which he is
portrayed would be highly offensive to a
reasonable person.
Constitutional Limitations
 Public figures: (i.e. those who have
Cox Broadcasting v. Cohn
 Context: what’s the standard for truthful
publication re: non-public figure?
 Press necessary conduit of information
 Name of rape victim already public
 Judicial proceedings always of public interest
 Constitutional privilege upheld in this case
 What if no name in court records?
 What if name had been kept private by Court,
obtained falsely?
Gertz v. Robert Welch
 Nature of allegations
 Was gertz a public figure/was trial public
event trial court said no; libel per se;
$50,000K damages
 Why are public figures given less protection
 Availability of self-help.
 Inevitability of false statements.