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Economic Indignitary Torts
经济诽谤侵权行为 诽谤

I. Common Law: Prima Facie Case

A. Common Law Elements
  1. Defamatory statement that turns out to be false
  2. Statement to be of or concerning the
3.Published to a third party
3. 向第三方公布

4. .
B. Defamatory Statement: A defamatory statement is one that injures the plaintiff's reputation. 嘼 Honesty; Integrity; Morality
Mere name calling is not enough.

1. Examples 1.实例

Example #1: Talk Show Host calls Dr. Greene a "buffoon". Is this a "defamatory statement?"
示例 1:脱口秀主持人称格林博士为 "小丑"。这是 "诽谤性言论 "吗?
? No. This might be insulting, but it's mere name calling, and it's not detrimental to Dr.'s reputation.
Example #2: Talk Show Host says that Dr. Greene has performed unnecessary surgeries. Is this a "defamatory statement?"
示例 2:脱口秀主持人说格林医生做了不必要的手术。这是 "诽谤性声明 "吗?
? Yes. That implies that the Dr. is incompetent as in ethnics.
COMMON LAW [? Truth: The defendant bears the burden of proving truth. Therefore, at common law, truth is a defense to a defamation claim.
普通法[? 真实性:被告承担证明真实性的责任。因此,在普通法中,真实性是诽谤索赔的抗辩理由。
C. Of and Concerning: The defendant's statement must reasonably be understood to refer to the plaintiff.
Normally tested when it involves a group of people, and it depends on the size of the group.
Example: Defendant says: "The lawyers in this town steal their clients' money." Is this statement "of and concerning" any particular lawyer ...
例如:被告说:"这个镇上的律师都偷客户的钱"。这句话是否 "属于并涉及 "任何特定的律师......
  1. In a town with three lawyers?
? Yes, it is of and concerning a particular lawyer in the group.
  1. In a large city?
? No, it is not.
D. Publication: The statement must be communicated to a third person.
  1. The third person(s) must be capable of understanding it. E.g., Talk Show Host said about Dr. Greene in English, but none of the
  1. Publication must be at least negligent if not intentional on the part of the .
Therefore, if a carefully tries to avoid other see or hear the statement, that almost always insolates her from defamation liability.
因此,如果 小心翼翼地尽量避免他人看到或听到其言论,几乎总是可以免除其诽谤责任。
Example: Talk Show Host confronts Dr. Greene quietly in his office, but is overheard by Eavesdropper. Has Talk Show Host "published" his statement to Eavesdropper?
举例说明:脱口秀主持人在格林医生的办公室里悄悄地与他对质,但被偷听者听到了。脱口秀主持人是否向偷听者 "公布 "了他的陈述?
? No, b/c based on the facts given, there is no E showing that Talk Show Host is intentional or negligent.
E. Damages: When defamation is spoken (slander), the plaintiff must prove special damages. When defamation is written or broadcast (libel), juries may presume damages.
Exception: A plaintiff can recover presumed damages in cases of slander per se. The traditional categories of slander per se are
  1. Statements that impune one's trade or profession.
  2. Statements accusing someone of a serious crime
anything punishable by imprisonment
  1. Traditionally, statements that will imply the has a "loathsome disease"
    传统上,会暗示 患有 "令人厌恶的疾病 "的言论
  2. Traditionally, statements that impune unchastity to a woman
? Although some jdx. had abandoned this and apply the new rule that includes men b/c of the potential gender bias
?虽然有些 jdx 放弃了这一做法,而采用了包括男性在内的新规则,因为可能存在性别偏见。

II. Common Law: Defenses - not often tested

A. Truth bears the burden
A. 承担责任
B. Absolute Privilege - if the statement were made intentionally, or even maliciously
  1. Categories 类别
    a. Judicial proceedings statements made by judges, lawyers, Ws or anything that pertains to the course of litigation
    a. 法官、律师、证人或任何与诉讼过程有关的人发表的司法程序声明
b. Statements made in the course of legislative proceeding by executive branch

c.  c.
  1. Tip: If an absolute privilege applies, it applies no matter how bad the defendant behaves.
Example: During floor debate, Senator falsely says that Constituent cheated the welfare system. Can Constituent successfully maintain a defamation action?
? No, b/c the statement was made during legislative proceeding. And the context is privileged against the defamation claim.
C. Qualified Privilege - not often tested
A person has a qualified privilege to make a defamatory statement in the course of legitimate public debate, or more commonly, is to serve the interest of the person who is receiving the information, the might be liable if she abuses the privilege.
一个人在合法的公开辩论过程中发表诽谤性言论,或者更常见的是为接收信息的人的利益服务,是享有特定特权的,如果 滥用了这一特权,可能要承担法律责任。

III. Constitutional Limitations

A. General Rule: The First Amendment protects speech on matters of public concern. In cases involving such speech, the Supreme Court has added two elements to the plaintiff's prima facie case. [ +4 common law element]
A.一般规则:第一修正案保护有关公众关注事项的言论。在涉及此类言论的案件中,最高法院在原告表面证据确凿的案件中增加了两个要素。[ +4 普通法要素]
  1. Falsity: The plaintiff must prove that the statement was false.
  2. Fault: The plaintiff must prove some level of fault regarding the 's knowledge of whether the statement was true or false
    过错:原告必须证明 在了解声明真假方面存在一定程度的过错。
a. Public Persons: A public plaintiff must prove actual malice. The Supreme Court defines actual malice as the either knew her statement was false or that the had reckless disregard of the truth but published the statement anyway New York Times . Sullivan
a.公众人物:公众原告必须证明实际恶意。最高法院将实际恶意定义为 要么知道自己的陈述是虚假的,要么 罔顾事实真相,但还是发表了该陈述,《纽约时报》 。沙利文
  • Public officials - elected officials; candidate for office; most other gov't officials and some positions of authority
  • Public figures - non-gov't actors who are in positions of tremendous affects or fame
    公众人物 - 具有巨大影响力或名气的非政府部门演员
b. Private Persons: A private plaintiff must prove fault amounting to at least negligence
Example: Talk Show Host accuses Dr. Weaver of bribing a jury in a malpractice case. What level of fault must Dr. Weaver prove in a defamation action against Talk Show Host?
?. Only to the level that the Talk Show Host should have known that he didn't bribe the jury. - normal reasonably prudent person standard
?.只有到了脱口秀主持人应该知道他没有贿赂陪审团的程度。- 正常的合理审慎者标准
B. Damages: In matters of public concern, all plaintiffs must prove actual malice to recover presumed or punitive damages.
No presumed dmg. in any case, even for a private person, if it involves public concern.


I. Appropriation I.拨款

Normally will test one in exam
A. Definition: Use of the plaintiff's name or picture or likeness for commercial advantage without permission.
Example: Wheaties puts Celebrity's picture on a cereal box. Appropriation? ? Yes, b/c Wheaties used Celebrity's picture for commercial advantage w/o permission.
例如:Wheaties 把名人的照片印在麦片盒上。挪用??是的,因为 Wheaties 公司未经许可使用名人的照片以谋取商业利益。
B. Limitation: Plaintiff's likeness must be used for advertising, promotional, or labeling purposes. Newsworthy use of a celebrity's name, picture or likeness is not appropriation.

II. Intrusion II.入侵

A. Definition: Interference with a plaintiff's seclusion in a way that would be highly offensive to a reasonable person.
You don't have to physically come to somebody's property to be liable for this T.
你不必亲自到别人的财产上,也要对 T 负责。
? E.g., a telescope or eavesdropping device.