Other torts - Claims based on defamation and invasion of pri...

Learning Outcomes

This article explains core MBE-tested doctrines governing defamation and invasion of privacy, including:

• Identifying and applying the elements of common-law and constitutional defamation, from defamatory meaning and “of and concerning” to publication, falsity, fault, and damages.
• Distinguishing libel, slander, and slander per se, and predicting when actual, special, or presumed damages are available.
• Classifying plaintiffs as public officials, public figures (including limited-purpose public figures), or private persons, and determining how that status and the presence of a matter of public concern change the required fault and falsity standards.
• Recognizing and differentiating the four invasion of privacy torts—intrusion, appropriation, public disclosure of private facts, and false light—and matching each to typical exam fact patterns.
• Evaluating common-law and constitutional defenses, including truth, consent, absolute and qualified privileges, newsworthiness, and First Amendment limits on presumed and punitive damages.
• Analyzing how overbreadth, vagueness, and prior restraint doctrines can invalidate speech-related statutes or remedies, and using these doctrines to assess the constitutionality of criminal and civil liability schemes involving reputation and privacy.
• Strategically approaching MBE questions by spotting the type of speech tort, plaintiff category, nature of the speech, and requested remedies in order to select the correct rule and outcome under time pressure.

MBE Syllabus

For the MBE, you are required to understand the principles governing tort claims based on harm to reputation and privacy, with a focus on the following syllabus points:

• Identify and apply the elements of defamation, including defamatory meaning, reference to the plaintiff, publication, falsity, fault, and damages.
• Distinguish libel from slander and recognize slander per se categories and when special damages are required.
• Distinguish public officials, public figures (including limited-purpose public figures), and private plaintiffs.
• Recognize matters of public concern and their effect on the falsity and fault requirements and on presumed and punitive damages.
• Recognize and apply the four invasion of privacy torts: intrusion upon seclusion, appropriation of name or likeness, public disclosure of private facts, and false light.
• Apply common-law defenses (truth, consent, absolute and qualified privileges) and constitutional defenses based on the First Amendment.
• Analyze how overbreadth, vagueness, and prior restraint doctrines can invalidate or limit statutes and remedies involving speech-related torts.
• Evaluate when actual malice, negligence, or strict liability standards apply, and how they interact with state tort law.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT an element required for a defamation claim by a private individual on a matter of public concern?
   1. Publication to a third party
   2. Falsity of the statement
   3. Actual malice by the defendant
   4. Damages to reputation
2. Which privacy tort is most likely implicated when a newspaper publishes truthful but highly offensive private facts about a person, not of public concern?
   1. Intrusion upon seclusion
   2. Appropriation of name or likeness
   3. Public disclosure of private facts
   4. False light
3. Which defense is absolute and bars liability for defamation regardless of the defendant’s intent or knowledge of falsity?
   1. Consent
   2. Truth
   3. Absolute privilege
   4. Qualified privilege
4. A state law makes it a crime to publish the name of a crime victim. A newspaper publishes the name, obtained from a public court record. Is the prosecution constitutional?
   1. Yes, because the law protects victims’ privacy
   2. Yes, because the law is content-neutral
   3. No, because the law is overbroad
   4. No, because the publication was of lawfully obtained, truthful information

Introduction

Claims for defamation and invasion of privacy protect interests in reputation and personal autonomy. These torts are frequently tested on the MBE, often in scenarios involving media defendants, public figures, or government actors. Because they regulate speech, the First Amendment imposes important limits that overlay the common-law rules. The exam often expects you to move back and forth between tort and constitutional analysis.

Defamation: Basic Concepts, Elements, and Types

Key Term: Defamation
A false statement of fact about the plaintiff, published to a third party, that harms the plaintiff’s reputation by tending to lower the plaintiff in the community’s estimation or deter others from associating with the plaintiff.

Defamation is a reputational tort. The law distinguishes between:

Key Term: Libel
Defamation in written, recorded, or otherwise permanent form (including broadcasts); general damages are presumed at common law.

Key Term: Slander
Defamation in spoken or other transitory form; special damages (pecuniary loss) are usually required unless slander per se.

Key Term: Slander Per Se
Slander where damages are presumed because the statement falls into a traditional category: (1) business or profession, (2) loathsome disease, (3) crime of moral turpitude, or (4) serious sexual misconduct (historically “unchastity”).

Defamatory Meaning and “Of and Concerning” the Plaintiff

A statement is defamatory if it would tend to harm the plaintiff’s reputation in the eyes of a substantial and respectable segment of the community, not just those who are unusually sensitive.

Key Term: Defamatory Meaning
A communication that tends to harm reputation by lowering the plaintiff in the estimation of the community or deterring others from associating with the plaintiff.

The statement must also be “of and concerning” the plaintiff: a reasonable listener or reader must understand that it refers to the plaintiff.

Key Term: “Of and Concerning” Requirement
The requirement that a defamatory statement be reasonably understood as referring to the plaintiff, either expressly or by implication.

• Statements about a small group (e.g., “all partners in X law firm are embezzlers”) may allow each member to sue.
• Statements about a large group (e.g., “all politicians are crooks”) generally do not.

Publication

Key Term: Publication (Defamation)
Communication of the defamatory matter to at least one person other than the plaintiff who understands it as referring to the plaintiff.

Publication can be intentional or negligent; it is satisfied if the defendant should have foreseen that a third party would read or hear the statement. Each repetition is a separate publication, and each republisher is potentially liable.

Internet service providers and interactive computer services are typically protected by federal statute from being treated as publishers of third-party content, but this level of detail is rarely needed on the MBE.

Falsity and Opinion

At common law, the defendant had to prove truth as an affirmative defense. Modern constitutional law shifts the burden in many cases.

Key Term: Matter of Public Concern
Speech that relates to issues of political, social, or community interest, or is otherwise of legitimate concern to the public.

• If the plaintiff is a public official, public figure, or the speech involves a matter of public concern, the plaintiff must prove falsity.
• If the plaintiff is a private person and the matter is purely private, many states still treat truth as an affirmative defense that the defendant must prove.

Key Term: Opinion (Defamation)
A statement that cannot reasonably be interpreted as stating actual facts; pure opinion is not actionable, but “opinion” that implies false, provable facts can be.

Statements framed as opinion (“In my view, X is a thief”) can be defamatory if they imply the existence of undisclosed, defamatory facts. The MBE will often test whether a statement is a provable assertion of fact versus protected opinion.

Fault: Negligence and Actual Malice

Key Term: Actual Malice
Knowledge that the statement is false, or reckless disregard for whether it is true or false; a subjective standard focused on the defendant’s state of mind at the time of publication.

The required fault standard depends on who the plaintiff is and what the speech is about:

Key Term: Public Official
A government official with substantial responsibility or control over governmental affairs (e.g., elected officials, high-level appointees).

Key Term: Public Figure
A person of pervasive fame or notoriety, or a person who voluntarily injects herself into a particular public controversy to influence its outcome (limited-purpose public figure).

• Public officials and public figures must prove actual malice for all defamation claims involving their official conduct or public role.
• Private plaintiffs, matters of public concern must prove at least negligence as to truth or falsity; states may require more but not less.
• Private plaintiffs, purely private matters can still be governed by common law (often negligence suffices).

Damages: Actual, Special, and Presumed

Key Term: Actual Damages (Defamation)
Compensation for proven harm to reputation, emotional distress, and other real injuries caused by the defamatory publication.

Key Term: Special Damages (Defamation)
Specific, economic losses (e.g., lost customers, lost job) that result from the defamation and must be pleaded and proved when required (e.g., most slander cases not slander per se).

Key Term: Presumed Damages
Damages that the law allows without proof of actual loss, based on the seriousness of the defamation and the type of plaintiff and speech.

Common-law rules:

• Libel and slander per se: damages presumed.
• Other slander: special damages required.

Constitutional overlay:

• For public officials/figures: presumed and punitive damages are available only on proof of actual malice.
• For private plaintiffs, matters of public concern: presumed and punitive damages require actual malice; negligence allows only proven actual damages.
• For private plaintiffs, private matters: states may allow presumed and punitive damages on a showing less than actual malice.

Exam Tip
On any defamation fact pattern, identify:

• Who the plaintiff is (public official, public figure, limited-purpose public figure, or private person).
• Whether the speech is on a matter of public concern.
• What damages are sought (actual, presumed, punitive).
  The combination dictates the required fault and falsity standards.

Defamation and the Constitution

The First Amendment limits defamation liability, treating defamation as one of the “unprotected” or less-protected categories of speech but imposing robust procedural safeguards.

Key Term: Constitutional Defamation Rules
First Amendment-based requirements that plaintiffs in defamation cases prove certain elements (such as falsity and fault) and that limit presumed and punitive damages when speech involves public officials, public figures, or matters of public concern.

Key points for the MBE:

• Public officials and public figures: must prove falsity and actual malice to recover anything.
• Private plaintiffs, matters of public concern: must prove falsity and at least negligence; actual malice is required for presumed or punitive damages.
• Private plaintiffs, private matters: no constitutional requirement of actual malice; common-law rules apply.

Invasion of Privacy: Four Torts

Key Term: Invasion of Privacy
A group of distinct torts protecting against unreasonable interference with a person’s seclusion, control over identity, or private information.

Unlike defamation, which protects reputation, privacy torts protect seclusion, autonomy, and control over personal information. Four separate torts are recognized on the MBE (not all are recognized in every state, but you should assume they are available unless told otherwise):

1. Intrusion upon seclusion

Key Term: Intrusion upon Seclusion
Intentional intrusion, physically or otherwise, into the plaintiff’s private place, conversation, or affairs in a manner that would be highly offensive to a reasonable person.

• No publication required; the wrong is the intrusive act itself.
• Common examples: wiretapping, peeping, hacking into private email, aggressive undercover investigations in truly private spaces.

1. Appropriation of name or likeness

Key Term: Appropriation
Unauthorized use of the plaintiff’s name, likeness, or other identifiable aspect of identity for the defendant’s commercial advantage.

This overlaps with the “right of publicity,” especially for celebrities.

Key Term: Right of Publicity
A property-like interest in the commercial value of a person’s identity, often asserted by celebrities when their name or likeness is used for advertisements or merchandise without consent.

News reporting or commentary using someone’s name or image in connection with a newsworthy event is usually not appropriation.

1. Public disclosure of private facts

Key Term: Public Disclosure of Private Facts
Publicizing private, non-newsworthy facts about the plaintiff that would be highly offensive to a reasonable person and are not of legitimate public concern.

Elements:

• Publicity (communication to the public at large, not just a few people).
• Private facts (not already public record or widely known).
• Highly offensive to a reasonable person.
• Not newsworthy or of legitimate public concern.

Truth is not a defense; the claim is based on the truthful but wrongful disclosure.

1. False light

Key Term: False Light
Publicizing information that places the plaintiff before the public in a misleading or false light that would be highly offensive to a reasonable person.

False light often overlaps with defamation but focuses on the mental and emotional harms of being portrayed inaccurately, even if the statement is not strictly defamatory. Because it involves speech, many courts apply similar constitutional limits as in defamation, including actual malice when public figures or matters of public concern are involved.

Defenses to Defamation and Privacy Torts

Common defenses include:

Key Term: Truth (Defamation)
A complete defense to defamation; substantial truth defeats liability even if minor details are inaccurate.

Key Term: Consent
Agreement by the plaintiff to the publication or conduct; a complete defense if the scope of consent is not exceeded.

Key Term: Absolute Privilege
Complete immunity from defamation liability for statements made in certain contexts, regardless of intent or knowledge of falsity (e.g., during legislative debate, judicial proceedings, some executive and official communications).

Key Term: Qualified Privilege
Conditional immunity for statements made in furtherance of an important interest (such as protecting others, reporting crime, or sharing a common business interest), lost if abused (e.g., excess publication, lack of reasonable belief, or actual malice).

• Absolute privilege covers:

  • Statements made by legislators in the course of legislative proceedings.
  • Statements made by judges, lawyers, parties, or witnesses in judicial proceedings, as long as they are related to the proceeding.
  • Certain high-level executive communications.

• Qualified privilege often arises where:

  • An employer gives a job reference.
  • A citizen reports suspected crime to police.
  • Persons share information in a common-interest context (e.g., between members of a trade association).

Qualified privilege is lost if the speaker:

• Knows the statement is false or recklessly disregards its truth (actual malice).
• Speaks outside the scope of the privilege (e.g., gratuitous publication to people without a legitimate interest).
• Uses unnecessarily inflammatory or irrelevant language.

Defenses to privacy torts:

• Consent is a defense to all four privacy torts.
• Newsworthiness or public concern is a powerful defense to public disclosure and, often, false light.
• Privileges and constitutional protections for news reporting can shield some forms of intrusion and appropriation when tied to newsworthy coverage, but they are more limited for purely commercial uses (like advertising).

Exam Warning

Do not confuse defamation and privacy torts:

• Defamation: reputational harm, generally requires publication to at least one third person; truth is a defense.
• Public disclosure: publicity of true private facts; truth is part of the claim and not a defense; newsworthiness is key.
• Intrusion: no publication requirement; focuses on method of obtaining information.

Constitutional Limitations: Overbreadth, Vagueness, and Prior Restraints

Because defamation and privacy suits often involve speech, constitutional doctrines can invalidate statutes or remedies.

Key Term: Overbreadth
A law is overbroad if it prohibits a substantial amount of protected speech along with unprotected speech, in relation to its plainly legitimate sweep.

Key Term: Vagueness
A law is unconstitutionally vague if persons of common intelligence must guess at its meaning and differ as to its application, risking arbitrary enforcement.

Many exam fact patterns involve statutes that criminalize “annoying,” “offensive,” or “disturbing” speech. Such laws are often struck down as both vague and overbroad, even if the specific conduct could be regulated with a more precise statute.

Key Term: Prior Restraint
An administrative or judicial order that prevents speech before it occurs (e.g., a prohibition on publishing certain information), strongly disfavored under the First Amendment.

In the defamation and privacy context:

• Courts are very reluctant to issue injunctions preventing future speech, especially before a trial determination of falsity.
• After a full and fair adjudication that specific statements are false and defamatory, a narrowly tailored injunction against repeating those specific statements may be upheld, but this is rarely the focus of MBE questions.

Key Term: Constitutional Privilege (Speech Torts)
First Amendment protections that bar or limit civil or criminal liability for speech on matters of public concern or about public officials and public figures, including requirements of actual malice and falsity.

Worked Example 1.1

A newspaper publishes a story about a mayor, stating she was arrested for embezzlement. The story is false, but the mayor is a public official. She sues for defamation.

What must the mayor prove to recover presumed or punitive damages?

Answer:
The mayor must prove:

• That the statement was false.
• That it was published to third parties.
• That it was “of and concerning” her.
• That the newspaper acted with actual malice—it knew the report was false or acted with reckless disregard for the truth.
  Once actual malice is shown, she may recover presumed and punitive damages, even without proof of specific economic loss.

Worked Example 1.2

A magazine publishes a truthful but highly embarrassing fact about a private individual’s medical history, which is not newsworthy.

What privacy tort is most likely implicated, and what must the plaintiff show?

Answer:
This is public disclosure of private facts. The plaintiff must show:

• The magazine gave publicity to the medical information (communication to the public at large).
• The information was private, not already publicly available.
• The disclosure would be highly offensive to a reasonable person.
• The information was not of legitimate public concern (not newsworthy).
  Truth does not help the defendant; the tort is based on wrongful disclosure of truthful private facts.

Worked Example 1.3

A city council member, during a legislative session, falsely accuses a local business owner of fraud. The owner sues for defamation.

Is the council member liable?

Answer:
No. Statements made by legislators during legislative proceedings are protected by an absolute privilege. The council member is completely immune from defamation liability for statements made in the course of official legislative business, regardless of intent, knowledge, or malice.

Worked Example 1.4

A talk radio host says on air, “I think the CEO of X Corp is a thief who cooked the books,” citing no sources. The CEO is a private person but the statement involves financial misconduct at a major corporation, widely traded on public markets. The CEO sues for defamation and seeks only compensation for reputational harm.

What level of fault must the CEO show, and must she prove falsity?

Answer:

• Because the statement involves alleged corporate wrongdoing and the financial integrity of a public company, it is a matter of public concern.
• The CEO is a private plaintiff, so she must show at least negligence as to truth or falsity.
• Under the First Amendment, she must also prove the statement is false.
• She may recover actual damages on proof of falsity, publication, and negligence; actual malice is not required for these damages, but would be required for presumed or punitive damages.

Worked Example 1.5

A tabloid publishes a story implying that a well-known actor (a public figure) secretly abuses drugs. The story is based solely on an anonymous tip the tabloid did not attempt to verify. The actor sues for false light and defamation.

What must the actor show to prevail on the false light claim?

Answer:
For false light involving a public figure and a matter of public concern, the actor must show:

• The tabloid gave publicity to information placing him in a false or misleading light (e.g., suggesting drug abuse).
• The portrayal would be highly offensive to a reasonable person.
• The tabloid acted with actual malice—knowledge of falsity or reckless disregard of the truth.
  The failure to investigate an inherently dubious anonymous tip can support a finding of reckless disregard, satisfying the actual malice requirement.

Exam Warning

Statutes restricting speech that are vague or overbroad may be unconstitutional even if the conduct itself could be regulated. Always check for these constitutional defects before concluding a statute is valid. A criminal statute banning “annoying” or “disturbing” words in public, for example, is likely void for vagueness and overbreadth.

Revision Tip

For MBE questions, always identify:

• Whether the plaintiff is a public official, public figure, limited-purpose public figure, or private individual.
• Whether the statement involves a matter of public concern.
• Whether the claim is defamation or one of the privacy torts.
• What damages are sought.

This determines the required fault standard, burden of proving falsity, and availability of presumed or punitive damages.

Key Point Checklist

This article has covered the following key knowledge points:

• Defamation requires a defamatory statement of fact “of and concerning” the plaintiff, publication, fault, and damages, subject to constitutional modifications.
• Libel is written or otherwise permanent defamation; slander is spoken; slander per se categories allow presumed damages without proof of economic loss.
• Public officials and public figures must prove falsity and actual malice for defamation based on their official conduct or public role.
• Private plaintiffs must prove at least negligence on matters of public concern, and actual malice is required for presumed or punitive damages in such cases.
• Four privacy torts exist: intrusion upon seclusion, appropriation of name or likeness, public disclosure of private facts, and false light, each with distinct elements.
• Truth is a complete defense to defamation but not to privacy claims like public disclosure of private facts; newsworthiness and public concern are central defenses in privacy cases.
• Defenses include truth, consent, absolute privilege, qualified privilege (which can be lost if abused), and constitutional privileges rooted in the First Amendment.
• The First Amendment limits liability for speech on public matters and about public figures, and disfavors prior restraints on speech, especially before a finding of falsity.
• Overbroad or vague statutes restricting speech may be unconstitutional even when aimed at harmful expression, including defamation or privacy invasions.
• On the MBE, careful classification of the plaintiff’s status, the nature of the speech, and the type of tort (defamation versus privacy) is essential to applying the correct standards.

Key Terms and Concepts

• Defamation
• Defamatory Meaning
• “Of and Concerning” Requirement
• Publication (Defamation)
• Libel
• Slander
• Slander Per Se
• Matter of Public Concern
• Public Official
• Public Figure
• Right of Publicity
• Actual Malice
• Actual Damages (Defamation)
• Special Damages (Defamation)
• Presumed Damages
• Opinion (Defamation)
• Invasion of Privacy
• Intrusion upon Seclusion
• Appropriation
• Public Disclosure of Private Facts
• False Light
• Truth (Defamation)
• Consent
• Absolute Privilege
• Qualified Privilege
• Prior Restraint
• Constitutional Defamation Rules
• Constitutional Privilege (Speech Torts)
• Overbreadth
• Vagueness