Defamation and Invasion of Privacy

Defamation

Defamation—also called slander and libel, is the communication of a statement that makes a claim, either express or implied in fact, that may insult or cast aspersions upon an individual, business, product, group, government, nation or culture and/or give that person, group or entity a negative image. This can be also any disparaging statement made by one person about another, which is communicated or published. It is a requirement that the claim be false and that the publication is communicated to someone other than the person defamed; that is, generally, truth is a defense to a defamation claim.

In common law jurisdictions, slander refers to a malicious, false, or impossible to verify or dispute and defamatory spoken statement or report. Libel, on the other hand, refers to any other form of communication such as written words or images.

Libel

In Nevada, to prevail on a claim of libel, a party must show publication of a false statement of fact, as opposed to opinion. The Nevada Supreme Court has ruled that whether the objectionable statements constitute fact or opinion is a question of law to be decided by the courts. Consequently, the courts must examine the context in which the statements are made to determine whether they are of a character which the First Amendment protects.

Statements are libelous only if they are presented as fact rather than opinion and only if the facts asserted are false. The distinction between fact and opinion is often a close one, with some statements containing elements of both.

False statements are libelous if a fact finder could conclude that they implied the factual assertions. Factual assertions are not actionable as libel unless they have no basis in truth.

Nev. Const. art. I, § 9 states, in pertinent part that in all criminal prosecutions and civil actions for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true and was published with good motives and for justifiable ends, the party shall be acquitted or exonerated.

Slander

For slander to be actionable, there must be a publication of the defamatory statement. Publication in the law of defamation is the communication of defamatory matter to a third person or persons. This means that for alleged defamatory words to be actionable they must be seen or heard by some person other than the plaintiff and defendant. Generally, words transmitted through television, unlike newspaper publications, is treated under the rubric of slander rather than libel.

The First Amendment places limits on the types of speech that may give rise to a defamation action under Nevada state law. For example, the First Amendment shields statements of opinion on matters of public concern that do not contain or imply a provable factual assertion, among other protections.

In making an assessment of whether an allegedly defamatory statement was a constitutionally protected opinion, the threshold question is whether a reasonable fact-finder could conclude that the contested statement implies an assertion of objective fact. If the answer is no, the claim is foreclosed by the First Amendment. To determine whether a statement implies a factual assertion, courts examine the totality of the circumstances in which it was made. In conducting this inquiry courts examine: (1) whether the general tenor of the entire work negates the impression that the defendant was asserting an objective fact, (2) whether the defendant used figurative or hyperbolic language that negates that impression, and (3) whether the statement in question is susceptible of being proved true or false.

Invasion of Privacy

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. Generally, unlike libel, truth is not a defense for invasion of privacy.

As a result, many states, including Nevada, have enacted what are termed “false light” laws. These laws are intended to protect the plaintiff's mental or emotional well-being against the publication and dissemination of information that is private and of no concern to the public writ large. If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading, then a tort of false light might have occurred.

The United States Constitution protects a person’s expectation of privacy and creates a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution. Generally, there are two types of expectations of privacy:

• A subjective expectation of privacy is an opinion of a person that a certain location or situation is private. These obviously vary greatly from person to person.

• An objective, legitimate or reasonable expectation of privacy is an expectation of privacy generally recognized by society.

Examples of places where a person has a reasonable expectation of privacy are person's residence or hotel room and public places which have been specifically provided by businesses or the public sector to ensure privacy, such as public restrooms, private portions of jailhouses, or a phone booth.

In general, one cannot have a reasonable expectation of privacy in things held out to the public. A well-known example is that there is no privacy rights in garbage left for collection in a public place. Other examples include: account records held by the bank, a person's physical characteristics (including blood, hair, fingerprints, fingernails and the sound of your voice), what the naked eye can see below in public air space (without the use of special equipment), anything in open fields (eg. barn), odors emanating from your car or luggage and paint scrapings on the outside of your car.

Where a person has a reasonable expectation of privacy and that privacy is invaded, then a claim for tortuous invasion of privacy may exist.