MLRC Privacy & Related Law Outline

SURVEY OF [FEDERAL CIRCUIT / STATE] PRIVACY AND RELATED CLAIMS AGAINST THE MEDIA

Survey Preparer(s)

(With Developments Reported Through April 1, 200X)

GENERAL COMMENTS

[including comments or caveats regarding structure of local court system, the manner in which local cases are reported or cited, etc.]

SIGNIFICANT DEVELOPMENTS SINCE

[narrative summary highlighting key developments over past year]

1. INVASION OF PRIVACY - GENERAL
   [including whether jurisdiction recognizes some or all of the four traditional branches of the privacy tort, based on (1) common law, (2) statutory provisions, and/or (3) constitutional provisions]
   
   
2. FALSE LIGHT
   
   
   1. Recognition of False Light Tort
      [including whether jurisdiction has explicitly accepted/rejected the tort]
      
      
      1. In General.
         
         
      2. As Applied to the Media.
         
         
   2. Substantive Elements - False Light
      [including introductory paragraph listing all requisite elements of tort, or cross reference if elements have already been set forth in A.1, supra]
      
      
      1. Public Disclosure.
         [including examples of particular disclosures that have or have not been found sufficiently public to satisfy this element]
         
         
      2. Falsity.
         [including whether falsity is or is not sufficiently substantial and material to trigger liability; extent to which embellishment or exaggeration, distortion or fictionalization, or false association have or have been found to satisfy this element; treatment of implication or innuendo; and consideration, if any, of fact-opinion dichotomy]
         
         
      3. Identification of Plaintiff.
         [focusing exclusively on application of the "of and concerning" element in false light as opposed to defamation cases]
         
         
      4. Offensiveness.
         [including degree of offensiveness required and application of "reasonable person" standard in measuring offensiveness]
         
         
      5. Fault.
         
         
         1. Issue of Public Concern.
            [including whether jurisdiction applies actual malice standard of Time, Inc. v. Hill, 385 U.S. 374 (1967) in all instances or potentially lesser fault standard of Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) in cases involving private-figure plaintiffs]
            
            
         2. Issue of Private Concern.
            [including effect, if any, of Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985)]
            
            
   3. Privileges and Defenses - False Light
      
      
      1. Constitutional.
         
         
         1. Opinion.
            [including any recognition of opinion as a privilege or defense, and effect, if any, of Milkovich on the availability of such a privilege or defense in false light cases]
            
            
      2. Common Law.
         
         
   4. Relationship of False Light to Defamation
      
      
      1. Substantive Distinctions.
         [including cases comparing different nature of the protected interests, e.g., reputation versus emotional distress; differing degree of societal concern in protected interest; absence of a requirement that falsity be defamatory; requirement, if any, that extrinsic facts be proved when false light not intrinsically apparent]
         
         
      2. Application of Constitutional and Common Law Privileges and Defenses.
         [including cases holding that privileges or defenses applicable to defamation must be incorporated into false light claim, e.g., cases rejecting "end runs" around the protections of defamation law]
         
         
      3. Viability of Separate Claim.
         [including cases holding that when offending conduct consists only of allegedly false and defamatory statement, only cause of action lies in defamation]
         
         
   5. Damages and Other Remedies - False Light
      
      
      1. General Damages.
         
         
      2. Special Damages.
         
         
      3. Punitive Damages.
         
         
      4. Injunctive Relief.
         
         
   6. Procedural Matters - False Light
      
      
      1. Burden of Proof.
         
         
      2. Retraction Statutes.
         [applicability]
         
         
      3. Statute of Limitations.
         [including whether statute of limitations for false light is same as or different than that for defamation claims; and, if different, whether false light claim can be used to circumvent shorter defamation statute of limitations]
         
         
      4. Other Procedural Matters.
         [including motions to dismiss; discovery; summary judgment; trial practice; appellate review; prior restraints; remedies for malicious, frivolous, or abusive prosecution; jurisdiction, venue, and choice of law; and survivability of action; to the extent significant determinations have been made regarding such matters in false light cases]
         
         
3. PUBLICATION OF PRIVATE FACTS
   
   
   1. Recognition of Private Facts Tort
      [including whether jurisdiction has explicitly accepted/rejected the tort]
      
      
      1. In General.
         
         
      2. As Applied to the Media.
         
         
   2. Substantive Elements - Private Facts
      [including introductory paragraph listing all requisite elements of tort, or cross reference if elements have already been set forth in A.1, supra]
      
      
      1. Public Disclosure.
         [including examples of particular disclosures that have or have not been found sufficiently public to satisfy this element; examples of particular circumstances in which and parties to whom disclosure is or is not considered public]
         
         
      2. Private Facts.
         [including examples of facts that have or have not been found sufficiently private to satisfy this element, e.g., facts contained in public records, facts relating to public activities, facts previously disclosed or already publicly known; or waiver by plaintiff, either express or implied]
         
         
      3. Identification of Plaintiff.
         [including both issue of whether plaintiff is sufficiently identifiable from the context of the matter published and instances involving failure to sufficiently disguise plaintiff during broadcast pursuant to consent limited to nonidentifiability of face or voice]
         
         
      4. Offensiveness.
         [including degree of offensiveness required and application of "reasonable person" standard in measuring offensiveness]
         
         
      5. Absence of Legitimate Concern to the Public.
         [including examples of communications that have or have not been found to be of legitimate interest or concern to the public, whether under the rubric of "newsworthiness" or not, see also Privileges and Defenses, infra, and the effect of plaintiff's status, e.g., recognition of varying zones of privacy for private figures, public figures, and involuntary and former public figures and the effect of passage of time upon such figures]
         
         
   3. Privileges and Defenses - Private Facts
      
      
      1. Constitutional.
         
         
         1. Truthful Facts in Public Records.
            [focusing on application of the line of Supreme Court cases from Cox Broadcasting v. Cohn, 420 U.S. 469 (1975), through Florida Star v. B.J.F., 491 U.S. 524 (1989), defining a constitutional privilege or defense for such truthful publications; and including definition of public record, and consideration of lawfulness of means by which information was obtained]
            
            
         2. Information of Public Concern.
            [focusing on cases holding that there is a constitutional privilege to publish matters of public interest]
            
            
      2. Common Law.
         [including cases holding that newsworthiness is to be considered a privilege under the common law and providing examples of facts that have or have not been found to be of sufficient newsworthiness to activate privilege]
         
         
   4. Relationship of Private Facts to Defamation and Other Privacy Torts
      [including absence of a truth defense in relation to defamation and false light claims; relationship to breach of confidence or breach of promise]
      
      
   5. Damages and Other Remedies - Private Facts
      
      
      1. General Damages.
         
         
      2. Special Damages.
         
         
      3. Punitive Damages.
         
         
      4. Injunctive Relief.
         
         
   6. Procedural Matters - Private Facts
      
      
      1. Burden of Proof.
         
         
      2. Statute of Limitations.
         [including whether statute of limitations for private facts is same as or different than that for defamation claims; and, if different, whether private facts claim can be used to circumvent shorter defamation statute of limitations]
         
         
      3. Other Procedural Matters.
         [including motions to dismiss; discovery; summary judgment; trial practice; appellate review; prior restraints; remedies for malicious, frivolous, or abusive prosecution; jurisdiction, venue, and choice of law; and survivability of action; to the extent significant determinations have been made regarding such matters in private facts cases]
         
         
   7. Private Facts Statutes
      [including all statutes specially creating categories of private facts or otherwise barring disclosure of certain facts or information, e.g., AIDS confidentiality statutes, rape victim statutes, statutes barring publication of names of minors, providing for grand jury secrecy, or otherwise prohibiting the disclosure of certain confidential matters, proceedings, or documents, to the extent such statutes either expressly impose criminal penalties or create a civil cause of action against media publication or have been interpreted to imply a private cause of action]
      
      
4. INTRUSION
   
   
   1. Recognition of Intrusion Tort
      [including whether jurisdiction has explicitly accepted/rejected the tort]
      
      
      1. In General.
         
         
      2. As Applied to the Media.
         
         
   2. Substantive Elements - Intrusion
      [including introductory paragraph listing all requisite elements of tort, or cross reference if elements have already been set forth in A.1, supra]
      
      
      1. 
         
      2. Unauthorized Intentional Intrusion or Prying into Plaintiff's Seclusion.
         
         
      3. Offensiveness.
         [including degree of offensiveness required and application of "reasonable person" standard in measuring offensiveness, e.g., adequacy or inadequacy of promised disguising of source (electronic or otherwise); disclosure of information allegedly not to be disclosed, etc.]
         
         
      4. As to Private Matter.
         
         
      5. Causing Anguish or Suffering.
         
         
   3. Privileges and Defenses - Intrusion
      
      
      1. Constitutional.
         
         
      2. Common Law.
         
         
         1. Consent.
            [including cases in which consent has been held to have been granted or exceeded]
            
            
         2. Other.
            
            
   4. Relationship of Intrusion to Trespass and Other Privacy Torts
      [including cases discussing absence of a requirement of publication and addressing the distinctions between trespass and intrusion]
      
      
   5. Damages and Other Remedies - Intrusion
      
      
      1. General Damages.
         
         
      2. Special Damages.
         
         
      3. Punitive Damages.
         
         
      4. Injunctive Relief.
         
         
   6. Procedural Matters - Intrusion
      
      
      1. Burden of Proof.
         
         
      2. Statute of Limitations.
         [including whether statute of limitations for intrusion is same as or different than that for defamation claims; and, if different, whether intrusion claim can be used to circumvent shorter defamation statute of limitations]
         
         
      3. Other Procedural Matters.
         [including motions to dismiss; discovery; summary judgment; trial practice; appellate review; prior restraints; remedies for malicious, frivolous, or abusive prosecution; jurisdiction, venue, and choice of law; and survivability of action; to the extent significant determinations have been made regarding such matters in intrusion cases]
         
         
   7. Forms of Intrusion
      
      
      1. Electronic Eavesdropping or Recording.
         
         
         1. Statutes.
            
            
            1. Citations and Brief Description.
               
               
            2. Consent Rule(s) and Exceptions.
               [including whether the eavesdropping statute requires the consent of all parties or only one party to the conversation; and whether, based on party's reasonable expectation of privacy in the communication, statute has been interpreted as requiring only one-party consent despite statutory language requiring multiparty consent]
               
               
            3. Criminal Sanctions Authorized.
               
               
            4. Civil Action(s) Authorized.
               
               
            5. Statute(s) of Limitations.
               
               
         2. Case Law.
            
            
      2. Hidden Cameras.
         
         
         1. Statutes.
            [including citations and brief description, and discussion of any consent rule(s) and exceptions, criminal sanctions, civil actions authorized, and statutes of limitations]
            
            
         2. Case Law.
            
            
      3. Other Surveillance.
         [focusing on physical observation, e.g., peering into windows or other private places, and following, e.g., "stalking"]
         
         
         1. Statutes.
            [including citations and brief description, and discussion of any consent rule(s) and exceptions, criminal sanctions, civil actions authorized, and statutes of limitations]
            
            
         2. Case Law.
            
            
      4. Unauthorized Reproduction of Private Documents. See also Conversion, VII
         
         
      5. "Ride-Alongs."
         [including claims arising out of media accompaniment of government agents into homes or other places, e.g., crime or fire scenes, based on permission granted by such agents, whether on a theory of intrusion or on a § 1983 claim based on constitutional violations, e.g., wrongful search and seizure]
         
         
   8. Related Newsgathering Claims
      
      
      1. Trespass.
         [including cases addressing the distinctions between trespass and intrusion and considering the application of trespass to media newsgathering, including cases considering any requirement of damage to property as an element of the trespass tort]
         
         
         1. Criminal Trespass.
            
            
         2. Civil Trespass.
            
            
      2. False Pretenses/Misrepresentation/Fraud.
         [including cases considering media liability for alleged misrepresentations used in obtaining access to or cooperation of persons or sources interviewed, considering misrepresentations both as to reporter's identity and as to how information will be used]
         
         
      3. Harassment.
         [including any statutes (e.g., antistalking statutes) and cases such as Galella v. Onassis, 487 F.2d 986 (2d Cir. 1973) or other newsgathering techniques (e.g., ambush interviews) alleged to amount to physical or psychological harassment]
         
         
5. MISAPPROPRIATION/RIGHT OF PUBLICITY
   
   
   1. Recognition of Tort - Misappropriation/Right of Publicity
      
      
      1. Nature of Protection.
         
         
         1. Judicial.
            [including whether jurisdiction has explicitly accepted/rejected the tort by common law and relationship between common law and any statutory recognition]
            
            
         2. Statutory.
            [including citation and explication of relevant statutes]
            
            
      2. Scope of Protection.
         [particularizing those facets of plaintiff's identity that have or have not been accorded protection, e.g., name, likeness, photograph, portrait, or picture, voice, signature, personality, or any other indicia of identity, including "soundalikes" or "lookalikes"]
         
         
   2. Substantive Elements - Misappropriation/Right of Publicity
      [including introductory paragraph listing all requisite elements of tort, or cross reference if elements have already been set forth in A.1, supra]
      
      
      1. Appropriation of Plaintiff's Identity or Persona.
         
         
      2. For Use or Benefit of Defendant.
         
         
   3. Privileges and Defenses - Misappropriation/Right of Publicity
      
      
      1. Constitutional.
         [including privilege or defense for use of another's identity in news reporting, commentary, entertainment, or works of fiction or nonfiction, to the extent recognized as required under the First Amendment or the state Constitution]
         
         
      2. Common Law.
         [including privilege or defense for use of another's identity in news reporting, commentary, entertainment, or works of fiction or nonfiction, to the extent recognized as a matter of common law]
         
         
   4. Relationship Between Misappropriation and Right of Publicity
      
      
      1. Nature of Right Protected.
         [including extent to which jurisdiction does or does not distinguish between personal right (misappropriation) and property right (right of publicity)]
         
         
      2. Nature of Injury.
         [including extent to which jurisdiction does or does not distinguish between invasion of a privacy interest and damage to commercial interest]
         
         
      3. Descendibility.
         [extent to which jurisdiction does or does not treat misappropriation/right of publicity as descendible]
         
         
         1. Misappropriation.
            
            
         2. Right of Publicity.
            [including, if descendibility recognized, whether conditioned on lifetime exploitation, and duration of the descendible right]
            
            
            1. Common Law.
               
               
            2. Statutory.
               
               
   5. Damages and Other Remedies - Misappropriation/Right of Publicity
      
      
      1. General Damages.
         
         
      2. Special Damages.
         
         
      3. Punitive Damages.
         
         
      4. Injunctive Relief.
         
         
   6. Procedural Matters - Misappropriation/Right of Publicity
      
      
      1. Burden of Proof.
         
         
      2. Statute of Limitations.
         
         
      3. Other Procedural Matters.
         [including motions to dismiss; discovery; summary judgment; trial practice; appellate review; prior restraints; remedies for malicious, frivolous, or abusive prosecution; jurisdiction, venue, and choice of law; and survivability of action; to the extent significant determinations have been made regarding such matters in misappropriation/right of publicity cases]
         
         
6. BREACH OF CONTRACT/PROMISSORY ESTOPPEL
   
   
   1. Confidential Sources
      [including cases dealing with revelation of the identity of a confidential source, under Cohen v. Cowles Media, 111 S.Ct. 2513 (1991)]
      
      
   2. Consent Exceeded
      [including cases applying principles similar to those of Cohen v. Cowles Media to claims involving alleged violation of other promises relating to the disclosure of information]
      
      
   3. Other
      
      
7. CONVERSION
   [focusing on claims for wrongful appropriation of documents or other items, including any First Amendment or state constitutional privilege recognized for publication of information in such documents regardless of the method of acquisition]
   
   
8. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
   
   
   1. Recognition of Tort - Intentional Infliction of Emotional Distress
      [including whether jurisdiction has explicitly accepted/rejected the tort]
      
      
      1. In General.
         
         
      2. As Applied to the Media.
         
         
   2. Substantive Elements - Intentional Infliction of Emotional Distress
      [including introductory paragraph listing all requisite elements of tort, or cross reference if elements have already been set forth in A.1, supra]
      
      
      1. Intentional or Reckless Conduct.
         
         
      2. Extreme and Outrageous Conduct.
         
         
      3. Severe Emotional Distress.
         
         
      4. Causation.
         
         
   3. Privileges and Defenses - Intentional Infliction of Emotional Distress
      
      
      1. Constitutional.
         
         
         1. Applicability of Actual Malice Standard.
            [including application of principles stated in Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), and whether such principles have been applied to private figures on issues of public concern]
            
            
         2. Other.
            [See also infra, D.1.]
            
            
      2. Common Law.
         
         
   4. Relationship of Intentional Infliction of Emotional Distress to Defamation
      
      
      1. Application of Constitutional and Common Law Privileges and Defenses.
         [including cases holding that privileges or defenses applicable to defamation must be incorporated into intentional infliction of emotional distress claim, e.g., cases rejecting "end runs" around the protections of defamation law]
         
         
      2. Viability of Separate Claim.
         [including cases holding that when offending conduct consists only of allegedly false and defamatory statement, only cause of action lies in defamation]
         
         
   5. Damages and Other Remedies - Intentional Infliction of Emotional Distress
      
      
      1. General Damages.
         
         
      2. Special Damages.
         
         
      3. Punitive Damages.
         
         
      4. Injunctive Relief.
         
         
   6. Procedural Matters - Intentional Infliction of Emotional Distress
      
      
      1. Burden of Proof.
         
         
      2. Statute of Limitations.
         [including whether statute of limitations for intentional infliction of emotional distress is same as or different than that for defamation claims; and, if different, whether intentional infliction of emotional distress claim can be used to circumvent shorter defamation statute of limitations]
         
         
      3. Other Procedural Matters.
         [including motions to dismiss; discovery; summary judgment; trial practice; appellate review; prior restraints; remedies for malicious, frivolous, or abusive prosecution; jurisdiction, venue, and choice of law; and survivability of action; to the extent significant determinations have been made regarding such matters in intentional infliction of emotional distress cases]
         
         
9. PRIMA FACIE TORT
   
   
   1. Recognition of Tort - Prima Facie Tort
      [including whether jurisdiction has explicitly accepted/rejected the tort]
      
      
      1. In General.
         
         
      2. As Applied to the Media.
         
         
   2. Substantive Elements - Prima Facie Tort
      [including introductory paragraph listing all requisite elements of tort, or cross reference if elements have already been set forth in A.1, supra]
      
      
      1. Infliction of Intentional Harm.
         
         
      2. By Otherwise Lawful Activity.
         
         
      3. Without Excuse or Justification.
         
         
      4. Causing Damage.
         
         
   3. Privileges and Defenses - Prima Facie Tort
      
      
      1. Constitutional.
         
         
         
         1. Applicability of Actual Malice Standard.
            
            
         2. Other.
            [See also infra, D.1.]
            
            
      2. Common Law.
         
         
   4. Relationship of Prima Facie Tort to Other Claims
      
      
      1. Application of Constitutional and Common Law Privileges and Defenses.
         [including cases holding that privileges or defenses applicable to defamation must be incorporated into prima facie tort claim, e.g., cases rejecting "end runs" around the protections of defamation law]
         
         
      2. Viability of Separate Claim.
         [including cases holding that when offending conduct would state a claim under any other tort, only cause of action lies in the other tort]
         
         
   5. Damages and Other Remedies - Prima Facie Tort
      
      
      1. General Damages.
         
         
      2. Special Damages.
         
         
      3. Punitive Damages.
         
         
      4. Injunctive Relief.
         
         
   6. Procedural Matters - Prima Facie Tort
      
      
      1. Burden of Proof.
         
         
      2. Statute of Limitations.
         [including whether statute of limitations for prima facie tort is same as or different than that for defamation claims; and, if different, whether prima facie tort claim can be used to circumvent shorter defamation statute of limitations]
         
         
      3. Other Procedural Matters.
         [including motions to dismiss; discovery; summary judgment; trial practice; appellate review; prior restraints; remedies for malicious, frivolous, or abusive prosecution; jurisdiction, venue, and choice of law; and survivability of action; to the extent significant determinations have been made regarding such matters in prima facie tort cases]
         
         
10. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
    
    
    1. Recognition of Tort - Negligent Infliction of Emotional Distress
       [including whether jurisdiction has explicitly accepted/rejected the tort]
       
       
       1. In General.
          
          
       2. As Applied to the Media.
          
          
    2. Substantive Elements - Negligent Infliction of Emotional Distress
       [including introductory paragraph listing all requisite elements of tort, or cross reference if elements have already been set forth in A.1, supra]
       
       
       1. Negligent Conduct.
          
          
       2. Extreme and Outrageous Conduct.
          
          
       3. Severe Emotional Distress.
          
          
       4. Causation.
          
          
       5. Limitations on Availability.
          
          
          1. Requirement of Physical Impact.
             
             
          2. Requirement of Physical Injury.
             
             
          3. Requirement That Emotional Distress Be Foreseeable.
             
             
          4. Requirement of Duty of Care.
             
             
    3. Privileges and Defenses - Negligent Infliction of Emotional Distress
       
       
       1. Constitutional.
          
          
          1. Applicability of Actual Malice Standard.
             
             
          2. Other. See also infra, D.1.
             
             
       2. Common Law.
          
          
    4. Relationship of Negligent Infliction of Emotional Distress to Defamation
       
       
       1. Application of Constitutional and Common Law Privileges and Defenses.
          [including cases holding that privileges or defenses applicable to defamation must be incorporated into intentional infliction of emotional distress claim, e.g., cases rejecting "end runs" around the protections of defamation law]
          
          
       2. Viability of Separate Claim.
          [including cases holding that when offending conduct consists only of allegedly false and defamatory statement, only cause of action lies in defamation]
          
          
    5. Damages and Other Remedies - Negligent Infliction of Emotional Distress
       
       
       1. General Damages.
          
          
       2. Special Damages.
          
          
       3. Punitive Damages.
          
          
       4. Injunctive Relief.
          
          
    6. Procedural Matters - Negligent Infliction of Emotional Distress
       
       
       1. Burden of Proof.
          
          
       2. Statute of Limitations.
          [including whether statute of limitations for negligent infliction of emotional distress is same as or different than that for defamation claims; and, if different, whether negligent infliction of emotional distress claim can be used to circumvent shorter defamation statute of limitations]
          
          
       3. Other Procedural Matters.
          [including motions to dismiss; discovery; summary judgment; trial practice; appellate review; prior restraints; remedies for malicious, frivolous, or abusive prosecution; jurisdiction, venue, and choice of law; and survivability of action; to the extent significant determinations have been made regarding such matters in negligent infliction of emotional distress cases]
          
          
11. CONSPIRACY
    
    
    1. Recognition of Tort - Conspiracy
       [including whether jurisdiction has explicitly accepted/rejected the tort]
       
       
       1. In General.
          
          
       2. As Applied to the Media.
          [including any alleged conspiracy to commit any media-related tort, e.g., defamation, invasion of privacy, infliction of emotional distress, newsgathering, etc.]
          
          
          1. Common Law.
             
             
          2. § 1983.
             [See also supra, "Ride-Alongs," IV.G.5.]
             
             
          3. RICO.
             
             
    2. Substantive Elements - Conspiracy
       [including introductory paragraph listing all requisite elements of tort, or cross reference if elements have already been set forth in A.1, supra]
       
       
       1. Entry into Agreement.
          
          
       2. To Commit a Criminal or Unlawful Act or a Lawful Act By Criminal or Unlawful Means.
          
          
       3. An Act in Furtherance.
          
          
       4. Damage to Plaintiff.
          
          
       5. Other.
          
          
    3. Privileges and Defenses - Conspiracy
       
       
       1. Constitutional.
          
          
          1. Applicability of Actual Malice Standard.
             
             
          2. Other. See also infra, D.1.
             
             
       2. Common Law.
          
          
    4. Relationship of Conspiracy to Defamation
       
       
       1. Application of Constitutional and Common Law Privileges and Defenses.
          [including cases holding that privileges or defenses applicable to defamation must be incorporated into conspiracy claim, e.g., cases rejecting "end runs" around the protections of defamation law]
          
          
       2. Viability of Separate Claim.
          [including cases holding that when offending conduct consists only of allegedly false and defamatory statement, only cause of action lies in defamation]
          
          
    5. Damages and Other Remedies - Conspiracy
       
       
       1. General Damages.
          
          
       2. Special Damages.
          
          
       3. Punitive Damages.
          
          
       4. Injunctive Relief.
          
          
    6. Procedural Matters - Conspiracy
       
       
       1. Burden of Proof.
          
          
       2. Statute of Limitations.
          [including whether statute of limitations for conspiracy is same as or different than that for defamation claims; and, if different, whether conspiracy claim can be used to circumvent shorter defamation statute of limitations]
          
          
       3. Other Procedural Matters.
          [including motions to dismiss; discovery; summary judgment; trial practice; appellate review; prior restraints; remedies for malicious, frivolous, or abusive prosecution; jurisdiction, venue, and choice of law; and survivability of action; to the extent significant determinations have been made regarding such matters in conspiracy cases]
          
          
12. INJURIOUS FALSEHOOD
    
    
    1. Recognition of Tort - Injurious Falsehood
       [including whether jurisdiction has explicitly accepted/rejected the tort]
       
       
       1. Slander of Title.
          
          
       2. Trade Libel/Product Disparagement/Disparagement of Quality.
          
          
       3. Other.
          
          
    2. Substantive Law - Injurious Falsehood
       
       
       1. Elements of Injurious Falsehood.
          
          
          1. Falsity.
             [including burden of proof]
             
             
          2. Injury.
             
             
          3. Publication.
             
             
          4. Of and Concerning.
             
             
          5. Special Damages (Injury to Pecuniary Interests).
             
             
          6. Malice.
             
             
             1. Intent to Cause Harm.
                
                
             2. Recklessness, Knowledge of Falsity or Similar Fault in Relation to Truth of the Publication.
                
                
             3. Spite or Ill Will.
                
                
       2. Distinctions (if any) in Elements of Subsidiary Torts.
          
          
          1. Slander of Title.
             
             
          2. Trade Libel.
             
             
          3. Product Disparagement.
             
             
       3. Opinion.
          
          
       4. Privileges.
          
          
          1. Common Law.
             
             
          2. Constitutional: Pre- and Post-Dun & Bradstreet.
             [including extent to which cases have or have not incorporated a public figure-private figure distinction into the law of injurious falsehood]
             
             
       5. Damages and Other Remedies/Injunctive Relief.
          
          
    3. Procedural Issues - Injurious Falsehood
       
       
       1. Burden of Proof.
          
          
          1. Fault.
             
             
          2. Privilege.
             
             
       2. Statute of Limitations.
          [including whether statute of limitations for injurious falsehood is same as or different than that for defamation claims; and, if different, whether injurious falsehood claim can be used to circumvent shorter defamation statute of limitations]
          
          
       3. Availability/Applicability of Defamation Privileges.
          
          
          1. Limitations on Discovery.
             
             
             1. Reporter's (Shield Law) Privilege.
                
                
             2. Protection of Editorial Material/Process.
                
                
          2. Summary Judgment.
             
             
    4. Disparagement and Defamation Statutes
       [including, e.g., statutes concerning agricultural or acquacultural products, financial institutions, insurance companies, cooperative marketing associations, credit unions, corporations, fraternal benefit societies, etc.]
       
       
    5. Relationship of "Injurious Falsehood" Torts to Traditional Libel Claims
       
       
    6. Lanham Act - § 43(a)
       
       
       1. In General.
          
          
       2. Application to Media.
          
          
       3. Elements.
          
          
    7. State Unfair Competition Law
       [limiting such treatment to any commercial disparagement claims that arise under state unfair competition laws]
       
       
13. INTERFERENCE WITH CONTRACT/PROSPECTIVE ECONOMIC ADVANTAGE
    
    
    1. Recognition of Tort - Interference with Contract/Prospective Advantage
       [including whether jurisdiction has explicitly accepted/rejected the tort]
       
       
       1. In General.
          
          
       2. As Applied to the Media.
          
          
    2. Substantive Elements - Interference with Contract/Prospective Advantage
       [including introductory paragraph listing all requisite elements of tort, or cross reference if elements have already been set forth in A.1, supra]
       
       
       1. Interference with Contract.
          
          
          1. Existence of a Valid Contract Between Plaintiff and Third Party.
             
             
          2. Knowledge By Defendant of Contract.
             
             
          3. Intentional and Improper or Unjustified Interference to Induce Nonperformance.
             
             
          4. Nonperformance of Contract Damaging to Plaintiff.
             
             
       2. Interference with Prospective Advantage.
          
          
          1. Reasonable Expectation of Entering into Valid Business Relationship.
             
             
          2. Knowledge By Defendant of Expectation.
             
             
          3. Intentional and Improper or Unjustified Interference.
             
             
          4. Loss of Prospective Advantage.
             
             
    3. Privileges and Defenses - Interference with Contract/Prospective Advantage
       
       
       1. Constitutional.
          
          
          1. Actual Malice.
             
             
          2. Other. See infra, D.1.
             
             
       2. Common Law.
          
          
    4. Relationship of Interference with Contract/Prospective Advantage to Defamation
       
       
       1. Application of Constitutional and Common Law Privileges and Defenses.
          [including cases holding that privileges or defenses applicable to defamation must be incorporated into interference with contract/prospective advantage claim, e.g., cases rejecting "end runs" around the protections of defamation law]
          
          
       2. Viability of Separate Claim.
          [including cases holding that when offending conduct consists only of allegedly false and defamatory statement, only cause of action lies in defamation]
          
          
    5. Damages and Other Remedies - Interference with Contract/Prospective Advantage
       
       
       1. General Damages.
          
          
       2. Special Damages.
          
          
       3. Punitive Damages.
          
          
       4. Injunctive Relief.
          
          
    6. Procedural Matters - Interference with Contract/Prospective Advantage
       
       
       1. Burden of Proof.
          
          
       2. Statute of Limitations.
          [including whether statute of limitations for interference with contract/prospective advantage is same as or different than that for defamation claims; and, if different, whether interference with contract/prospective advantage claim can be used to circumvent shorter defamation statute of limitations]
          
          
       3. Other Procedural Matters.
          [including motions to dismiss; discovery; summary judgment; trial practice; appellate review; prior restraints; remedies for malicious, frivolous, or abusive prosecution; jurisdiction, venue, and choice of law; and survivability of action; to the extent significant determinations have been made regarding such matters in interference with contract/prospective advantage cases]
          
          
14. NEGLIGENT MEDIA PUBLICATION
    
    
    1. Recognition of Tort - Negligent Media Publication
       [including whether jurisdiction has explicitly accepted/rejected one or more forms of the tort identified below]
       
       
       1. Injury Allegedly Caused By Misinformation in Media Publications.
          [including cases in which tort claims against the media for wrongful death, physical injury, or economic harm have been alleged on basis of erroneous information negligently contained in media publications, where the injury is alleged to have been caused by the misinformation, e.g., recipes in cookbooks, experiments in science texts, how-to articles in magazines, economic information in financial publications, etc.]
          
          
       2. Alleged Inducements to Destructive or Self-Destructive Behavior.
          [including cases in which tort claims against the media for wrongful death or physical injury have been asserted on basis of alleged inducements to destructive or self-destructive behavior contained in media publications, e.g., suicide allegedly inspired by rock lyrics, death allegedly caused by imitation of dangerous sexual practice, etc.]
          
          
       3. Criminal Solicitation.
          [including cases asserting wrongful death or physical injury claims against the media, presumably confined to advertisements placed by third parties leading, e.g., to an agreement by third parties to commit murder]
          
          
       4. Other.
          
          
    2. Substantive Elements
       [including introductory paragraph listing all requisite elements of tort, or cross reference if elements have already been set forth in A.1, supra, and indicating where particular element has or has not been applied to one or more forms of the tort identified in A, supra]
       
       
       1. Duty of Care.
          [including whether courts have or not required privity, a special relationship, or knowledge that parties would reasonably rely upon the allegedly erroneous information]
          
          
       2. Breach of Duty.
          [including level of fault applied in particular cases and whether courts have or have not required a higher degree of fault in cases involving constitutionally protected speech]
          
          
       3. Foreseeability and Causation.
          [including application of elements of foreseeability and causation in particular cases, including the effect of intervening and superseding causes].
          
          
    3. Privileges and Defenses - Negligent Media Publication
       
       
       1. Constitutional.
          
          
          1. Misinformation in Media Publications.
             [focusing on the methods by which courts have or have not recognized that First Amendment or state constitutional concerns limit tort recovery for negligent injury allegedly caused by misinformation contained in media publications and whether or not such concerns have been held to require stringent application of normal fault or causation rules; cf. infra, XV, Product Liability/Strict Liability]
             
             
          2. Inducement to Self-Destructive Behavior.
             [including whether or not courts have applied First Amendment decisions such as Brandenburg v. Ohio, 395 U.S. 444 (1969]) and Hess v. Indiana, 414 U.S. 105 (1973) to require that the challenged speech was intended to incite or presented an imminent danger of inciting self-destructive behavior]
             
             
          3. Criminal Solicitation.
             [including whether or not courts have held that the Constitution requires that the advertisement must - on its face - put the publisher on notice of an unreasonable risk of solicitation to commit a violent criminal act before triggering potential liability]
             
             
          4. Other. See also infra, D.1.
             
             
       2. Common Law.
          [including the extent to which courts have or have not recognized standard tort law defenses in dismissing or upholding particular claims]
          
          
    4. Relationship of Negligent Media Publication to Defamation
       
       
       1. Application of Constitutional and Common Law Privileges and Defenses.
          [including cases holding that privileges or defenses applicable to defamation must be incorporated into negligent publication claim, e.g., cases rejecting "end runs" around the protections of defamation law]
          
          
       2. Viability of Separate Claim.
          [including cases holding that when offending conduct consists only of allegedly false and defamatory statement, only cause of action lies in defamation]
          
          
    5. Damages and Other Remedies - Negligent Media Publication
       
       
       1. General Damages.
          
          
       2. Special Damages.
          
          
       3. Punitive Damages.
          
          
       4. Injunctive Relief.
          
          
    6. Procedural Matters - Negligent Media Publication
       
       
       1. Burden of Proof.
          
          
       2. Statute of Limitations.
          [including whether statute of limitations for negligent publication is same as or different than that for defamation claims; and, if different, whether negligent publication claim can be used to circumvent shorter defamation statute of limitations]
          
          
       3. Other Procedural Matters.
          [including motions to dismiss; discovery; summary judgment; trial practice; appellate review; prior restraints; remedies for malicious, frivolous, or abusive prosecution; jurisdiction, venue, and choice of law; and survivability of action; to the extent significant determinations have been made regarding such matters in negligent publication cases]
          
          
15. PRODUCT LIABILITY/STRICT LIABILITY
    [including cases involving such products as maps, navigational charts, etc. in which courts have or have not applied strict or product liability standards in claims for personal injury or wrongful death caused allegedly by the inherently dangerous nature of the product]
    
    
16. OTHER THEORIES OF EDITORIAL CONTENT LIABILITY
    [including any other theories of editorial content liability that have been recognized or rejected and are not covered above]
    
    
17. OTHER RELEVANT STATUTES
    
    
    1. Cameras in the Courtroom
       
       
       1. Statutes or Court Rule.
          
          
       2. Case Law.
          
          
          1. Substantive.
             
             
          2. Procedural.
             
             
    2. Confidential Sources
       
       
    3. SLAPP Suits
       
       
    4. "Son of Sam" Laws
       
       
    5. Other
       [including all relevant statutes, with full description of statutes not previously discussed, and with brief citation and cross reference to all other statutes previously cited, see, e.g., I, III.G, IV.G.1-3, V.A.1.b, V.D.3.b.2, XIII.D]