38.2 Defamation & Invasion of Privacy

38.2 Defamation & Invasion of Privacy

NCBE's outline covers claims based on defamation and invasion of privacy, including defenses and constitutional limitations. For defamation, first confirm the common-law elements, and then decide what fault and damages rules the First Amendment requires based on who the plaintiff is and what the statement concerns.

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Common Law Defamation

At common law, defamation was a strict liability tort. A plaintiff established a prima facie case by proving four elements:

1. Defamatory Statement of Fact: A statement that tends to diminish the respect, goodwill, or esteem in which the plaintiff is held, or that deters others from associating with them.
2. "Of and Concerning" the Plaintiff: A reasonable listener or reader must understand that the statement refers specifically to the plaintiff.
3. Publication: Communication of the defamatory statement to at least one third party who understands its defamatory meaning.
4. Damages: Harm to the plaintiff's reputation (presumed or requiring proof of special damages depending on the medium).

At common law, falsity was presumed, and truth was a complete defense that the defendant had to prove; a statement need only be substantially true. When a statement involves a matter of public concern, the Constitution places the burden of proving falsity on the plaintiff (Philadelphia Newspapers, Inc. v. Hepps, 1986).

Parsing the Common Law Elements

1. Statement of Fact vs. Opinion

A defamatory statement must be an assertion of objective fact—something capable of being proven true or false. Pure opinion, imaginative hyperbole, or name-calling (e.g., "that lawyer is an incompetent jerk") is not actionable. However, an opinion that implies undisclosed defamatory underlying facts is actionable (e.g., "In my opinion, John is an embezzler" implies that the speaker knows hidden accounting facts showing theft). The Supreme Court has refused to create a separate constitutional privilege for anything labeled opinion; the question is whether the statement can reasonably be understood to state or imply provably false facts (Milkovich v. Lorain Journal Co., 1990).

2. "Of and Concerning" the Plaintiff (Colloquium)

The plaintiff must plead and prove that the communication was understood by third parties to identify them. Special rules apply to group defamation:

• Small, Identifiable Group: If the defamatory statement is directed at a small group (e.g., "One of the four partners in the Acme Law Firm is bribing judges"), every member of the group can sue because the accusation casts suspicion on all.
• Large Group: If the statement is directed at a large, indeterminate class (e.g., "All politicians are corrupt" or "All tax accountants cheat"), no individual member can recover unless specific circumstances single them out.
• Deceased Persons: At common law, a dead person cannot be defamed. A defamatory statement about a deceased individual does not give rise to a cause of action for the decedent's estate or surviving relatives, unless the statement directly defames living family members.

3. Publication

Publication requires only that the statement be intentionally or negligently communicated to a single person other than the plaintiff. Communicating a defamatory statement exclusively to the plaintiff in private does not constitute publication. However, a repeater or republisher of a defamatory statement is treated as a primary publisher and is subject to full liability, even if they explicitly identify the original source (e.g., stating "Jane told me that Bob steals" is legally equivalent to stating "Bob steals").

4. Libel vs. Slander and the Damages Rules

                                  ┌────────────────────────────────┐
                                  │    Libel vs. Slander Matrix    │
                                  └───────────────┬────────────────┘
                                                  │
               ┌──────────────────────────────────┴──────────────────────────────────┐
               ▼                                                                     ▼
    ┌──────────────────────┐                                              ┌──────────────────────┐
    │        LIBEL         │                                              │       SLANDER        │
    │(Written, broadcast,  │                                              │ (Spoken, oral, or    │
    │permanent recording)  │                                              │ transitory speech)   │
    └──────────┬───────────┘                                              └──────────┬───────────┘
               │                                                                     │
               ▼                                                   ┌─────────────────┴─────────────────┐
    ┌──────────────────────┐                                       ▼                                   ▼
    │GENERAL DAMAGES       │                            ┌──────────────────────┐    ┌──────────────────────┐
    │PRESUMED              │                            │   SLANDER PER SE     │    │   ORDINARY SLANDER   │
    │No proof of pecuniary │                            │(4 Special Categories)│    │(All other statements)│
    │loss required.        │                            └──────────┬───────────┘    └──────────┬───────────┘
    └──────────────────────┘                                       │                                   │
                                                                   ▼                                   ▼
                                                        ┌──────────────────────┐    ┌──────────────────────┐
                                                        │DAMAGES PRESUMED      │    │SPECIAL DAMAGES       │
                                                        │No proof of pecuniary │    │MUST BE PROVEN        │
                                                        │loss required.        │    │Specific economic loss│
                                                        └──────────────────────┘    └──────────────────────┘

• Libel: Defamation embodied in written words, print, broadcast television, radio, internet publications, podcasts, or other permanent physical or electronic recordings. Under common law, general damages are presumed; the plaintiff need not prove specific pecuniary loss to recover. Some states, however, require special damages for libel that is defamatory only when combined with outside facts (libel per quod), unless it fits a slander per se category.
• Slander: Defamation communicated through spoken words or transitory gestures. As a general rule, the plaintiff must plead and prove special damages—meaning specific, quantifiable pecuniary or economic losses (such as being fired from a job, losing a commercial lease, or suffering lost business profits).
• The Four Slander Per Se Categories: If the oral statement falls into one of four "per se" categories, damages are conclusively presumed, and the plaintiff is not required to plead or prove special damages:
  1. Statements adversely reflecting on the plaintiff's business, profession, trade, or office;
  2. Accusations that the plaintiff has committed a crime of moral turpitude or a crime subjecting them to infamous punishment (e.g., embezzlement, perjury, armed robbery);
  3. Assertions that the plaintiff currently suffers from a loathsome disease (historically restricted to venereal diseases and leprosy);
  4. Imputations of serious sexual misconduct or unchastity.

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Constitutional Limitations on Defamation

Beginning with New York Times Co. v. Sullivan (376 U.S. 254 (1964)), the Supreme Court held that the First Amendment limits common law defamation to prevent self-censorship and encourage uninhibited debate on public issues. The constitutional framework imposes two mandatory requirements on public matters: falsity must be proven by the plaintiff, and the plaintiff must prove fault.

┌──────────────────────────────────────────────────────────────────────────────────────────────────┐
│                     CONSTITUTIONAL DEFAMATION MATRIX (FAULT & DAMAGES)                           │
├──────────────────────────────────────────────────────────────────────────────────────────────────┤
│  PLAINTIFF STATUS & TOPIC    │  REQUIRED FAULT STANDARD          │  DAMAGES RECOVERABLE          │
├──────────────────────────────┼───────────────────────────────────┼───────────────────────────────┤
│  PUBLIC OFFICIAL OR          │  ACTUAL MALICE                    │  Presumed, actual, and        │
│  PUBLIC FIGURE               │  (Knowledge of falsity or         │  punitive damages recoverable │
│  (Any subject matter)        │  reckless disregard for truth)    │  upon clear & convincing      │
│                              │  Standard: Clear & Convincing     │  proof of actual malice.      │
├──────────────────────────────┼───────────────────────────────────┼───────────────────────────────┤
│  PRIVATE FIGURE /            │  NEGLIGENCE                       │  ACTUAL INJURY DAMAGES ONLY.  │
│  PUBLIC CONCERN              │  (Failure to exercise due care    │  Presumed and punitive        │
│  (Gertz v. Robert Welch)     │  in investigating truth)          │  damages require proof of     │
│                              │  Standard: Preponderance          │  ACTUAL MALICE.               │
├──────────────────────────────┼───────────────────────────────────┼───────────────────────────────┤
│  PRIVATE FIGURE /            │  COMMON LAW STRICT LIABILITY /    │  Presumed and punitive        │
│  PRIVATE CONCERN             │  NEGLIGENCE (State law choice)    │  damages permitted WITHOUT    │
│  (Dun & Bradstreet)          │  Standard: Preponderance          │  proof of actual malice.      │
└──────────────────────────────────────────────────────────────────────────────────────────────────┘

1. Public Officials and Public Figures (NYT v. Sullivan / Curtis Publishing)

• Who Qualifies?
  • Public Officials: Individuals who hold elected office or high governmental positions with substantial control over public policy (mayors, judges, police chiefs, legislators).
  • All-Purpose Public Figures: Individuals who have achieved pervasive fame, power, or notoriety across the community (celebrities, national business leaders, household names).
  • Limited-Purpose Public Figures: Individuals who have voluntarily thrust themselves to the forefront of a particular public controversy to influence its outcome.
• The Constitutional Standard: Actual Malice: To prevail, the public plaintiff must prove by clear and convincing evidence that the defendant published the statement with Actual Malice:
  1. Knowledge that the statement was false; OR
  2. Reckless disregard of whether it was false or not.
• Reckless Disregard Defined: Reckless disregard is a subjective standard. It requires that the defendant in fact entertained serious doubts as to the truth of the publication or had a high degree of subjective awareness of its probable falsity. Mere negligence, failure to check sources, ill will, hatred, or spite does not constitute actual malice (St. Amant v. Thompson, 1968).

2. Private Figures Involved in Matters of Public Concern (Gertz)

Under Gertz v. Robert Welch, Inc. (418 U.S. 323 (1974)), when the plaintiff is a private individual and the subject matter involves a matter of public concern (e.g., public safety, government operations, criminal trials):

• Standard of Liability: States may define their own standard of fault, but cannot impose strict liability. The plaintiff must prove at least negligence as to falsity.
• Damages Limitation: Upon proving negligence, the plaintiff is strictly limited to recovering actual injury damages (compensation for proven economic losses, impairment of reputation, personal humiliation, and mental distress).
• Punitive and Presumed Damages: The plaintiff cannot recover presumed or punitive damages without proving Actual Malice by clear and convincing evidence.

3. Private Figures Involved in Matters of Purely Private Concern (Dun & Bradstreet)

In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (472 U.S. 749 (1985)), the Supreme Court held that the First Amendment does not restrict state defamation law when the dispute involves a private plaintiff and a purely private matter (e.g., a false confidential credit report issued to five banks). In such cases, states may permit juries to award presumed and punitive damages under common law principles without requiring proof of actual malice.

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Privileges in Defamation

Even if all elements of defamation are proven, a defendant may escape liability by asserting an absolute or qualified privilege.

1. Absolute Privileges (Complete Immunity)

An absolute privilege provides complete immunity from defamation liability. It cannot be lost, even if the speaker acted out of pure malice, spite, or with knowledge of the statement's falsity:

• Judicial Proceedings: Statements made by judges, attorneys, witnesses, jurors, and parties in the course of judicial proceedings, provided the statements have some reasonable relation to the litigation.
• Legislative Proceedings: Statements made by federal, state, or municipal legislators on the floor of the legislature or in official committee hearings, regardless of relevance.
• Executive Proceedings: High-ranking executive government officials performing official duties.
• Spousal Communications: Communications between spouses.
• Required Broadcast Publications: Broadcasters compelled by federal equal-time rules to air political candidate statements without censorship.

2. Qualified (Conditional) Privileges

A qualified privilege protects statements made in good faith where society recognizes a legitimate interest in open communication:

• Protecting Publisher's Interest: Statements made to defend the speaker's own legitimate property, business, or reputation.
• Protecting Recipient's or Third-Party Interest: Statements made to protect another person's legitimate interest (e.g., a former employer providing an honest employment reference to a prospective employer, or reporting a suspected crime to the police).
• Common Interest: Communications between members of a cohesive group sharing a common business, professional, or organizational interest (e.g., church elders, corporate board members, condominium associations).
• Fair and Accurate Reporting: Neutral press reports of official public proceedings or public records.

Forfeiture of Qualified Privilege: A qualified privilege is lost (abused) if the speaker knew the statement was false or recklessly disregarded its truth, published it to more people than necessary to protect the interest, or—in many states—acted primarily for a purpose other than protecting the interest the privilege serves.

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The Privacy Torts (Mnemonic: CLIP)

Invasion of privacy encompasses four separate and distinct common law tort actions, easily memorized using the acronym CLIP:

┌────────────────────────────────────────────────────────────────────────────┐
│                     THE FOUR PRIVACY TORTS (CLIP)                          │
├────────────────────────────────────────────────────────────────────────────┤
│  C - COMMERCIAL APPROPRIATION       Unauthorized commercial use of name/   │
│                                     likeness for business advantage.       │
│                                                                            │
│  L - FALSE LIGHT                    Widespread publicity creating a highly │
│                                     offensive false impression in public.  │
│                                                                            │
│  I - INTRUSION UPON SECLUSION       Physical or electronic invasion into   │
│                                     private quarters; NO PUBLICATION.      │
│                                                                            │
│  P - PUBLIC DISCLOSURE OF           Widespread publicity of private,       │
│      PRIVATE FACTS                  non-newsworthy facts; TRUTH NO DEFENSE.│
└────────────────────────────────────────────────────────────────────────────┘

1. Commercial Appropriation of Name or Likeness (Right of Publicity)

• Elements: Unauthorized use of the plaintiff's name, photograph, likeness, voice, or identity for the defendant's commercial benefit or advertising advantage.
• Newsworthiness Exception: The First Amendment protects using a person's name or image in news reporting, documentary films, biographies, books, or parodies. Commercial appropriation applies strictly to commercial advertising, product promotion, or merchandise endorsement. The First Amendment does not, however, allow a broadcaster to air a performer's entire act without consent merely because it is news (Zacchini v. Scripps-Howard Broadcasting Co., 1977).

2. Intrusion Upon Seclusion

• Elements: An intentional, unauthorized physical, electronic, or sensory intrusion into the plaintiff's private sphere, quarters, or confidential affairs that would be highly offensive to a reasonable person (e.g., wiretapping private phone lines, installing hidden cameras in bedrooms, hacking private email accounts, or peeping through residential windows).
• CRITICAL MBE RULE: NO PUBLICATION IS REQUIRED. The tort is completed the instant the unauthorized intrusion occurs. Taking photos of someone walking on a public street or in a public park is not actionable because there is no reasonable expectation of privacy in public spaces.

3. False Light

• Elements: Giving widespread publicity to matter concerning the plaintiff that places the plaintiff before the public in a false light that would be highly offensive to a reasonable person.
• First Amendment Fault Requirement: When the matter is of public interest, the plaintiff must prove that the defendant knew the statement was false or acted in reckless disregard of its falsity (Time, Inc. v. Hill, 1967). Several states, including New York, Texas, and Florida, do not recognize false light claims.
• Contrast with Defamation: Defamation protects reputation in the community (requiring a lowering of social standing); false light protects internal emotional tranquility and dignity. A statement can support a false light action even if it does not technically defame the plaintiff (e.g., falsely publishing that a private citizen is a heroic combat veteran when they never served, causing extreme emotional distress).

4. Public Disclosure of Private Facts

• Elements: Giving widespread public dissemination to private, non-newsworthy facts concerning the plaintiff's personal life (e.g., confidential medical records, financial debts, private letters) that would be highly offensive to a reasonable person and is not of legitimate public concern.
• CRITICAL MBE RULE: TRUTH IS NOT A DEFENSE. Unlike defamation, where truth is a complete bar, the entire wrong in public disclosure of private facts is publicizing the embarrassing, intimate truth.
• Defenses: Legitimate public concern / newsworthiness, public court records, and voluntary consent. The First Amendment protects publishing truthful information from public court records (Cox Broadcasting Corp. v. Cohn, 1975) and, absent a state interest of the highest order, truthful information lawfully obtained about a matter of public significance (The Florida Star v. B.J.F., 1989).

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Summary Table: Privacy Torts Comparison (CLIP)

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More on Defamation and Privacy

Online Publication

• Section 230: Under Section 230 of the Communications Decency Act, a provider or user of an interactive computer service is not treated as the publisher or speaker of information provided by someone else. A website generally is not liable for a user's defamatory post, although the user who wrote it is.
• Single publication rule: An entire edition of a publication, or a single online posting, is generally treated as one publication for purposes of the statute of limitations.

Who Is a Public Figure?

• Not public figures: A lawyer representing a client in a controversial case was not a public figure (Gertz v. Robert Welch, Inc., 1974), a socialite involved in a highly publicized divorce was not a public figure (Time, Inc. v. Firestone, 1976), and a scientist who received federal research grants was not a public figure merely because a senator criticized the grants (Hutchinson v. Proxmire, 1979).
• Organizations: Corporations and other organizations can be defamed with respect to their business reputation.

Privacy Rights Are Personal

Privacy claims belong to the individual whose privacy was invaded. They generally do not survive the person's death and cannot be brought by relatives on the person's behalf, although some states recognize statutory rights of publicity that continue after death. Corporations generally have no privacy rights except against appropriation of their names.