Legal & ethical considerations - business communications
Defamation is a statement that gives a negative impression of a person, company, group, product, government, or country. The statement is made as though it were true, when in fact, it is false. Defamation can be slander, which is made with spoken words, sounds, sign language, or gestures. Defamation in any other form, like in printed words or pictures, is libel. To be considered defamation, the claim has to be false, it has to be made as if it were true, and it has to have been communicated to people other than the entity being defamed.
Defamation is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, or nation a negative image. This can be also any disparaging statement made by one person about another, which is communicated or published. It is usually a requirement that this claim be false and that the publication is communicated to someone other than the person defamed (the claimant).
TYPES OF DEFAMATION
1. SLANDER: is a spoken defamation. Defamation or "defamation of character" is spoken or written words that falsely and negatively reflect on a living person's reputation. In common law jurisdictions, slander refers to a malicious, false[not specific enough to verify] and defamatory spoken statement or report, while libel refers to any other form of communication such as written words or images. Most jurisdictions allow legal actions, civil and/or criminal, to deter various kinds of defamation and retaliate against groundless criticism. Related to defamation is public disclosure of private facts, which arises where one person reveals information that is not of public concern, and the release of which would offend a reasonable person. In most civil law jurisdictions, defamation is dealt with as a crime rather than a tort. A person who harms another's reputation may be referred to as a famacide, defamer, or slanderer. The Latin phrase famosus libellus means a libelous writing.
2. LIBEL: Libel is defined as the defamation of a person, business, group, product, government, or nation that is made in written or printed words or pictures (defamation by written or printed words, pictures, or in any form other than by spoken words or gestures). In order to be libel, the claim must be in writing, it must be false and the person making it must state or imply that it is factual. In other words, libel means printing or implying something negative as if it were true, when it is not. The publication where the libel occurs is assumed to be read by persons other than the person defamed.
How Does Libel Differ From Slander?
Slander, another legal term, is also a false, defamatory, and often malicious statement. The difference between slander and libel is that slander is spoken and libel refers to written words and pictures. Libel covers any form of defamation other than spoken words or gestures.
Several factors must be in place to prove that libel has occurred. The person defamed must prove that the statement was indeed false. Next, he must prove that the statement did harm. Lastly, he must prove that the statement was made without enough research into its validity. When a libel case is brought by a celebrity or public figure, an additional step is needed. The public figure must prove that the statement was made with the intention to do harm. This is known as actual malice and a reckless disregard for the truth.
What Is Libel Per Se?
There are four kinds of libel that are considered defamation per se, meaning that proof of damages is not needed. These include:
• A serious charge of sexual misconduct,
• A claim that a person has a loathsome disease,
• An accusation of a crime, and
• A statement that a person is not fit to run his business or trade.
To successfully sue for libel in these cases, the claimant only needs to prove that the statement was published.
PRIVILEGE AND DEFAMATION
Privilege provides a complete bar and answer to a defamation suit, though conditions may have to be met before this protection is granted. There are two types of privilege in the common law tradition:
• "Absolute privilege" has the effect that a statement cannot be sued on as defamatory, even if it were made maliciously; a typical example is evidence given in court (although this may give rise to different claims, such as an action for malicious prosecution or perjury) or statements made in a session of the legislature. Absolute privilege is limited to three areas (a) judicial proceedings, (b) legislative proceedings, (c) actof important Govt. officials.
• "Qualified privilege or Conditional privilege" may be available as a defense in circumstances where it is considered important that the facts be known in the public interest; an example would be public meetings, local government documents, and information relating to public bodies such as the police and fire departments. Qualified privilege has the same effect as absolute privilege, but does not protect statements that can be proven to have been made with malicious intent.
Are Insults and Epithets considered defamation under the law?
Insults and epithets are usually not considered to be defamatory because they are emotional outbursts and the intent of the person is to show displeasure or dislike. They are not normally meant to harm the person to whom they are directed, so would not generally meet the criteria required under the law for a defamation suit.
INVASION OF PRIVACY
Invasion of privacy is the intrusion into the personal life of another, without just cause, which can give the person whose privacy has been invaded a right to bring a lawsuit for damages against the person or entity that intruded. It encompasses workplace monitoring, internet privacy, data collection, and other means of disseminating private information.
Celebrities are not protected in most situations, since they have voluntarily placed themselves already within the public eye, and their activities are considered newsworthy. However, an otherwise non-public individual has a right to privacy from:
a) intrusion on one's solitude or into one's private affairs;
b) public disclosure of embarrassing private information;
c) publicity which puts him/her in a false light to the public;
d) appropriation of one's name or picture for personal or commercial advantage.
The media is protected by the First Amendment right to free speech, as long as the published or broadcast material does not violate personal privacy and is either verifiable as true or presented as an opinion, clearly not a statement of fact. This condition is why many such lawsuits do not prevail in court. The defendant can always claim the information was presented as a hypothetical or speculative piece, and not obtained through any invasion of privacy.
The "intrusion of solitude" claim in an invasion of privacy lawsuit applies to an actual physical or electronic penetration of a person's private home or other personal space. If a person was undressing at home, for example, and someone filmed this without telling the person, he or she could sue for invasion of privacy. The same would hold true for any attempt to break into someone's home to obtain embarrassing or private materials. When a burglar allegedly broke into the home of actress Pamela Anderson and stole a private home video, for example, she could legally sue the person, using the "intrusion of solitude" aspect of the tort law.
In a "public disclosure of private facts" situation, the facts themselves may be completely true, but the method of obtaining those facts and publishing them could constitute an invasion of privacy. Some unscrupulous reporters have been known to rummage through a public figure's garbage to find evidence of prescription drug use or other highly personal matters. Even though the garbage itself may have been placed on public space, the information contained within is still considered personal. A disgruntled employee may also decide to provide personal information to the media, which could expose him or her to a potential invasion of privacy lawsuit for publicly disclosing private facts about a public figure.
A more malicious form of invasion of privacy is addressed in the "false light" aspect of the law. This type of lawsuit is commonly pursued whenever someone deliberately misrepresents the "character, history, activities or beliefs" of another person. When actor Tom Cruise was accused of being homosexual by a male adult film star, for example, Cruise could have successfully sued the individual for portraying him in a false light. Since an unproven claim of this magnitude could have damaged Cruise's reputation in the film industry, there could be actual monetary damages attached to the lawsuit as well. Proving a "false light" invasion of privacy claim can be difficult, but it is commonly one of the best angles to pursue against misleading tabloid headlines.
The fourth aspect involves the misappropriation of a person's image or name. A public figure cannot always control the use of his or her likeness, but a blatant, unauthorized commercial use of a celebrity's image could result in an "appropriation" invasion of privacy lawsuit. If a local restaurant, for example, used a celebrity's name or image in a commercial and implied an official endorsement, it could face an invasion of privacy lawsuit. This type of legal action is often taken against advertisers who morph the faces of celebrities onto other bodies to imply endorsement of a product. People own their personal images, and have every right to demand others cease and desist any unauthorized commercial use of them.
MISREPRESENTATION AND FRAUD
Misrepresentation is a false or misleading statement made about a present or past agreement. A misrepresentation is interpreted as an innocent misstatement of a fact. In the case of a misrepresentation, the injured party may be able to cancel the contract.
Fraud is a deliberate misstatement of a fact. It is defined as the use of deceit or some dishonest means to deprive another of money or secure unlawful gain. In the case of a fraud, the injured party may cancel the contract and sue the wrongdoer for damages. Frequently, a case will contain both fraud and misrepresentation.
Mistake occurs where one or both parties to the contract believe a fact to be true when it is not true. A unilateral mistake occurs when one party makes a mistake, and this, generally, does not invalidate the contract because negligence or inadvertence are not excuses. If both parties to a contract make a mistake, the error is called a bilateral mistake. This type of mistake generally voids the contract because there was no mutual agreement.
Misrepresentation Distinguished From Fraud
Misrepresentation means an innocent misstatement or nondisclosure of facts, while fraud consists in representations which are known to be false, or which are made in reckless ignorance of their truth or falsity, or in nondisclosure or concealment of facts under such circumstances that it amounts to a representation that the facts concealed do not exist. This will be more fully explained in treating of fraud. The practical test of fraud, as opposed to mere misrepresentation, is that fraud gives rise to an action ex delicto, while innocent misrepresentation does not. Fraud, besides being a vitiating element in contract, is a tort or wrong apart from contract, and may be treated as such by bringing an action of deceit. Misrepresentation, in exceptional cases, may invalidate a contract, but will not support an action of deceit.