Learning Outcomes
After reading this article, you will be able to identify the elements of defamation and invasion of privacy torts, distinguish between types of defenses, and apply constitutional limitations—especially those arising from the First Amendment. You will be able to analyze fact patterns for MBE-style questions involving these torts, including recognizing when a claim is barred or limited by privilege or constitutional protection.
MBE Syllabus
For the MBE, you are required to understand the principles governing tort claims based on harm to reputation and privacy. This includes the elements of defamation and privacy torts, available defenses, and the impact of constitutional law. You should be prepared to:
- Identify and apply the elements of defamation, including publication, falsity, fault, and damages.
- Distinguish libel from slander and recognize slander per se categories.
- Recognize and apply the four invasion of privacy torts: intrusion, appropriation, false light, and public disclosure of private facts.
- Analyze common law and constitutional defenses, including truth, consent, privileges, and First Amendment limitations.
- Evaluate the effect of public figure status and matters of public concern on claims and damages.
- Apply constitutional standards such as actual malice, overbreadth, and vagueness to bar or limit recovery.
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.
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Which of the following is NOT an element required for a defamation claim by a private individual on a matter of public concern?
- Publication to a third party
- Falsity of the statement
- Actual malice by the defendant
- Damages to reputation
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Which privacy tort is most likely implicated when a newspaper publishes truthful but highly offensive private facts about a person, not of public concern?
- Intrusion upon seclusion
- Appropriation of name or likeness
- Public disclosure of private facts
- False light
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Which defense is absolute and bars liability for defamation regardless of the defendant’s intent or knowledge of falsity?
- Consent
- Truth
- Absolute privilege
- Qualified privilege
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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?
- Yes, because the law protects victims’ privacy
- Yes, because the law is content-neutral
- No, because the law is overbroad
- 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. Understanding the elements, defenses, and constitutional limits is essential for answering MBE questions accurately.
Defamation: Elements and Types
Defamation is a false statement of fact that harms another’s reputation and is published to a third party. The law distinguishes between libel (written or otherwise permanent) and slander (spoken or transitory). Slander generally requires proof of special damages unless it falls into a slander per se category.
Key Term: Defamation
A false statement of fact about the plaintiff, published to a third party, that harms the plaintiff’s reputation.Key Term: Libel
Defamation in written or other permanent form; damages are presumed.Key Term: Slander
Defamation in spoken or transitory form; special damages required unless slander per se.Key Term: Slander Per Se
Slander involving: (1) business/profession, (2) loathsome disease, (3) crime of moral turpitude, or (4) unchastity (historically, of a woman); damages presumed.
Elements of Defamation
To establish defamation, the plaintiff must show:
- A defamatory statement of fact;
- Publication to a third party;
- Falsity (for matters of public concern or public figures);
- Fault (at least negligence for private plaintiffs on matters of public concern; actual malice for public officials/figures);
- Damages (presumed for libel and slander per se; special damages for other slander).
Key Term: Actual Malice
Knowledge that a statement is false or reckless disregard for its truth; required for public officials/figures to recover for defamation.
Defamation and the Constitution
The First Amendment imposes limits on defamation claims, especially where the plaintiff is a public official or figure, or the statement involves a matter of public concern. In these cases, the plaintiff must prove actual malice to recover presumed or punitive damages.
Invasion of Privacy: Four Torts
Invasion of privacy includes four distinct torts:
- Intrusion upon seclusion: Intentional intrusion into plaintiff’s private affairs that would be highly offensive to a reasonable person.
- Appropriation of name or likeness: Unauthorized use of plaintiff’s name or likeness for defendant’s advantage.
- Public disclosure of private facts: Publicizing private facts about plaintiff that would be highly offensive and are not of legitimate public concern.
- False light: Publicizing facts that place plaintiff in a false light that would be highly offensive.
Key Term: Invasion of Privacy
A group of torts protecting against unreasonable interference with a person’s seclusion, identity, or private information.Key Term: Intrusion upon Seclusion
Intentional, highly offensive intrusion into plaintiff’s private affairs or space.Key Term: Appropriation
Unauthorized use of plaintiff’s name or likeness for defendant’s benefit.Key Term: Public Disclosure of Private Facts
Publicizing private, highly offensive facts about plaintiff not of public concern.Key Term: False Light
Publicizing facts that place plaintiff in a misleading or highly offensive false position.
Defenses to Defamation and Privacy Torts
Common defenses include:
- Truth: Complete defense to defamation.
- Consent: Plaintiff agreed to the conduct.
- Absolute privilege: Applies to statements in judicial, legislative, or certain executive proceedings.
- Qualified privilege: Applies where the speaker has a legitimate interest or duty, unless abused.
- Constitutional privilege: First Amendment bars or limits liability for speech on matters of public concern or about public figures.
Key Term: Absolute Privilege
Complete immunity from defamation liability for statements made in certain contexts, regardless of intent or knowledge.Key Term: Qualified Privilege
Conditional immunity for statements made in furtherance of legitimate interests, lost if abused.
Constitutional Limitations
The First Amendment restricts liability for defamation and privacy torts, especially where the speech involves public figures or matters of public concern. Overbreadth and vagueness doctrines may invalidate statutes that restrict speech too broadly or unclearly.
Key Term: Overbreadth
A law is overbroad if it prohibits a substantial amount of protected speech along with unprotected speech.Key Term: Vagueness
A law is unconstitutionally vague if persons of common intelligence must guess at its meaning.
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 the statement was false, published with actual malice (knowledge of falsity or reckless disregard), and that it caused reputational harm. Presumed or punitive damages require actual malice.
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: Public disclosure of private facts. The plaintiff must show the disclosure was highly offensive, not of legitimate public concern, and publicized to the public at large.
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 during legislative proceedings are absolutely privileged, barring defamation liability regardless of intent or knowledge.
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.
Revision Tip
For MBE questions, always identify whether the plaintiff is a public official, public figure, or private individual, and whether the statement involves a matter of public concern. This determines the required fault standard and available damages.
Key Point Checklist
This article has covered the following key knowledge points:
- Defamation requires a false statement of fact, publication, fault, and damages.
- Libel is written defamation; slander is spoken; slander per se categories allow presumed damages.
- Public officials/figures must prove actual malice for defamation on matters of public concern.
- Four privacy torts: intrusion, appropriation, public disclosure, and false light.
- Defenses include truth, consent, absolute and qualified privilege, and constitutional privilege.
- The First Amendment limits liability for speech on public matters and by/against public figures.
- Overbroad or vague statutes restricting speech may be unconstitutional.
Key Terms and Concepts
- Defamation
- Libel
- Slander
- Slander Per Se
- Actual Malice
- Invasion of Privacy
- Intrusion upon Seclusion
- Appropriation
- Public Disclosure of Private Facts
- False Light
- Absolute Privilege
- Qualified Privilege
- Overbreadth
- Vagueness
