by Professor Frank B. Cross
Defenses To Defamation
- Judges – A judge can call a defendant a “thief” and is absolutely immune from suit.
- Elected officials – A Congressman can speak freely on the floor of the House of Representatives.
- NB: Does not extend outside of the legislative chambers.
Public figures: If a public figure, you have to show malice (statement was not only false but was done maliciously). Malice also includes recklessness. So, if a newspaper publishes defamatory information without checking its sources, the newspaper can be held liable for defamation.
EXAMPLE: Candid statement on employment reference call regarding a former employee. NB: It applies only to the extent of your business purpose. So, you can candidly answer that one reference call, but you cannot start calling other potential employers saying defamatory statements about that former employee.
Public interest privilege:
EXAMPLE: You, believing someone is carrying a weapon and is dangerous, warn someone else when this is, in fact, untrue. You are immunized from suit because you are acting in the public interest.
Privacy and Emotional Distress Torts
Intentional infliction of emotional distress: There must be an extreme and outrageous, intentional action (or action w/ reckless disregard for the consequences).
NB: There must be something more than just words.
EXAMPLES OF EMOTIONAL DISTRESS: Increased anxiety, cannot sleep, having nightmares, and/or PTSD. A reasonable person standard is used. A person who is extremely sensitive is not able to sue when the conduct would not have offended a reasonable person. REMEMBER: There is no negligent infliction of emotional distress.
Invasion of Privacy
Intrusion: You have a reasonable expectation of privacy, and someone intrudes. EXAMPLES: Peeping tom; eavesdropping on someone’s private phone call.
Publicity of private life: When a person publishes non-newsworthy information about another person’s private life, that is an actionable tort. NB: Newsworthiness does not necessarily mean in the news. EXAMPLE: A woman working at a nuclear power plant passed out while working. The safety inspectors interviewed her because they were concerned about exposure to radiation. The female employee explained that she passed out due to a medical procedure, not radiation exposure. To quell the concern raised by many employees of a radiation leak at the nuclear power plant, the corporate representatives shared with the other employees the circumstances as to why the female employee passed out. The woman was not entitled to sue under this tort.
Misappropriation of likeness: If someone takes your likeness (something identifiable about you – your face or your voice but not your hand or foot, e.g.) and uses it to sell a product without your permission, that is an actionable tort. NB: This does not apply to someone using a picture of your house.
- If there is a newsworthy matter, the newspaper can use a photograph of the person without his/her knowledge/permission.
- If there is a photograph of that person in the public domain, there is no cause of action.
Product liability: When one is injured by a product (good) he/she purchased from someone else.
When you buy a product from a retailer, the standard is strict liability for the product manufacturer.
You cannot sue if you used a product that is widely known to be dangerous, you purchased the product willingly. All sales of goods come with an implied warranty of merchantability which means that the goods you are buying are of average, acceptable quality for their intended purpose.
Product misuse: If you misuse a product and cause yourself harm, the product manufacturer is not liable. EXCEPTION: If the misuse is reasonably foreseeable, then the product manufacturer will be held liable. EXAMPLE: A person stands on a chair to change a light bulb, and the chair collapses. While it is product misuse, it is a reasonably foreseeable misuse of the chair.
Protective interests: You are protected from personal injury. EXAMPLE: You buy a defective lawnmower, and it cut off your foot. You are protected from property damage. EXAMPLE: You buy a defective lawnmower, and it careens off and destroys your neighbor’s property.