978-0077733711 Chapter 6 Lecture Note Part 2

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Chapter 06 – Intentional Torts

5. Defamation

a. Introduce this tort by noting that two competing interests are at stake: (1) the

plaintiff’s interest in protection of reputation; and (2) the defendant’s interest in

freedom of speech. Defamation’s legal components, likewise, may be divided into

two categories: first, the common law elements of a defamation claim (though some

states set out the elements in statutes); and second, the constitutional aspects of

defamation. The common law elements, set forth in the definition on p. 194 and

explained on pp. 194-96, focus for the most part on the protection-of-reputation

interest. The constitutional aspects, addressed in the “Defamation and the

Constitution” subsection beginning on p. 196, are designed to allow adequate

protection for defendants’ free speech interests.

b. Discuss the libel-slander distinction and why it matters (no need to prove special

damages in libel cases, because presumed damages are available). Also discuss the

basis for this rule (the presumed greater harm to reputation resulting from libel).

Make certain the students understand the difference between presumed damages and

special damages, as well as why presumed damages are an “oddity of tort law.” Go

through the four categories of slander per se and emphasize that in a slander per se

case, the common law has traditionally allowed the plaintiff to recover presumed

damages. In slander cases not amounting to slander per se, the common law has

normally required that special damages be demonstrated. You might ask whether the

traditional distinctions among libel, slander, and slander per se make much sense

today. (Though it probably is better to leave well enough alone and not mention this,

a minority of states complicate matters further by adopting a per se-per quod

distinction in libel cases. Under this approach, when the instance of libel is

defamatory on its face (a per se case), presumed damages are allowed, but if the

defamatory nature of an instance of libel is not defamatory on its face and requires

proof of additional facts to show the statement’s defamatory nature (a per quod case),

special damages must be demonstrated. The authors recommend not muddying the

waters by addressing this approach unless the instructor believes there are special

reasons to do so.) Note, also, that the constitutional aspects of defamation (to be

discussed later) have restricted the availability of presumed damages but have not

eliminated this tort law “oddity.”

c. Define the term “defamatory” and stress that its application is a case-by-case matter.

Stress that the defendant’s statement must also have been false in order for potential

defamation liability to exist. Use the Knievel case (see the Cyberlaw in Action box at

pp. 197-98 of the text) to review the elements of defamation and particularly the

requirements that the statement at issue be both defamatory and a false statement of

”fact.” Knievel provides a useful illustration of the “reasonable reader” test in regard

to whether a statement is defamatory and a false statement of supposed fact. The

court concludes that reasonable readers would not take the “pimp” statement as one

of supposed fact regarding Evel Knievel and that his reputation therefore would not

be lowered in their eyes. What does this conclusion indicate about the companies

that terminated Evel Knievel as a paid endorser of their products? Is the court

effectively saying that those companies were unreasonable?

d. The “of and concerning” discussion briefly addresses various recurring problems,

which bear not only on whether the statement is about the plaintiff but also on

whether it is defamatory in nature. Explore each of the situations noted in this

section of the text (fictional accounts, humor and satire, pure opinion vs. mixed

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Chapter 06 – Intentional Torts

opinion-fact, supposed defamation of a group, and defamation of a corporation).

Examples: the chapter’s opening vignette/introductory problem; the Knievel case

(Cyberlaw in Action box at pp. 197-98); Problem #3; and Barger v. Playboy

Enterprises, Inc., 564 F. Supp. 1151 (N.D. Cal. 1983) (Hell’s Angels’ wives too large

a group to be individually defamed by magazine article). Stress that because they are

neither demonstrably true nor demonstrably false, statements of pure opinion aren’t

actionable even if they cause reputational harm. What about mixed opinion-“fact”

statements such as “I think he must be dealing in illegal drugs”? (Actionable even

though cast in form of opinion, because gist or “sting” of statement–that he is dealing

in illegal drugs–is susceptible of proving proven true or false.)

e. Note the minimal amount of publication required for defamation liability (to one

person other than the plaintiff). Normally, the defendant or the defendant’s agent

must have made the communication to the third party in order for there to have been

publication. The plaintiff’s “self-publication” does not constitute publications. For

example, Student A says to Student B: “Professor Jones accused me of cheating on

the last exam.” Note, however, the “compelled self-publication” exception that some

courts have adopted in the employment termination context.

f. You may wish to raise a business-specific defamation issue at this point: Are

intracorporate communications “published” for purposes of defamation? Although

courts are split on this point, the modern trend is to hold that publication has taken

place in such situations.

g. Note also that one who repeats or republishes a defamatory statement is as liable for

defamation as the originator of the statement.

h. Explain the traditional publisher vs. distributor distinction. Note the role played by §

230 of the Communications Decency Act, which provides that Internet service

providers are not to be treated as publishers of information content provided by

another party.

i. Regarding common law defenses and privileges in defamation cases:

1) Truth, of course, is an absolute defense to defamation liability. (Note, however,

that the plaintiff, not the defendant, bears the burden of proof on the truth vs.

falsity issue.)

2) Discuss the absolute privileges, observe that they create a complete defense, and

say why they exist.

3) Note how conditional privileges are different from absolute privileges. Work

through each of the major conditional privilege situations outlined in the text, and

emphasize the policy reasons for recognizing a privilege in those situations. The

conditional privilege that arises with regard to recommendations for employment

or, say, graduate study, may be of particular interest to students. Note what

normally constitutes abuse of a conditional privilege, and state the effect of abuse

(that the protection against liability is forfeited).

j. Defamation and the Constitution

1) Note the reasoning that led the Supreme Court, in the landmark New York Times

case, to supplement the common law elements of defamation with First

Amendment-based fault requirements. Mention the Court’s concern about the

undesirable effects, in a free speech sense, that could result from the common

law’s strict liability approach and from unrestricted availability of presumed

damages. Stress the importance of the status of the plaintiff–public official or

public figure on the one hand or private figure on the other–to the determination

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Chapter 06 – Intentional Torts

of the fault requirement that the plaintiff must demonstrate in order to account for

First Amendment concerns.

2) Public official plaintiffs, public figure plaintiffs, and proof of actual malice

a) Note what a public official is and mention the high level of interest in

such persons’ actions–a level of interest that translates into a compelling

First Amendment interest in engaging in speech regarding such persons.

In order to accommodate that free speech interest, the Supreme Court

imposed the stern proof-of-actual-malice requirement on public official

plaintiffs (and later public figure plaintiffs).

b) Stress that “actual malice” is a term of art whose meaning in the

defamation context differs from the usual meaning of the word “malice.”

Explain what actual malice is (knowledge of falsity or reckless disregard

for the truth) and what it isn’t (ill will, spite motives, etc.). Note the

clear-and-convincing-evidence requirement that must also be met on the

actual malice issue–a requirement devised by the Supreme Court as a

further First Amendment-based bit of protection for defendants. (On the

difficulty of proving actual malice, see the later discussion.)

c) The Supreme Court regarded the level of public interest in the actions of

public figures as essentially the same as such interest regarding public

officials. The Court also reasoned that public figures matched public

officials in terms of their ability to help shape public thought, their access

to the media to counteract false statements about them, and their

voluntary placement of themselves in the public spotlight. Therefore, the

Court concluded that the proof-of-actual-malice requirement should be

imposed on public figure plaintiffs (along with the requirement that

actual malice be proven by clear-and-convincing evidence).

d) Explain the types of public figures (general-purpose and limited-

purpose), with examples of each. Note that if Madonna brought a

defamation claim, she would be required to prove the same thing–actual

malice–that former Secretary of State and likely presidential candidate

Hillary Clinton would have to prove if she were the plaintiff in a

defamation case. Note, also, that corporations may or may not be public

figures, depending upon the relevant facts.

e) Stress the usual effect of the proof-of actual-malice requirement: that the

public official or public figure plaintiff will lose the case because of an

inability to prove actual malice. Example: the Bertrand case (a text case

commented on below). But see Problem Case #13. Work through the

text’s explanation of the very difficult task of proving either of the two

alternative forms of actual malice (knowledge of falsity or reckless

disregard for the truth). Be certain to distinguish reckless disregard from

mere negligence regarding the ascertainment of truth or falsity. Although

negligence is a form of fault, it is not a severe enough degree of fault to

make a defendant liable for defamation in a case brought by a public

official or public figure plaintiff. (It is a different story for the private

figure plaintiff, as will be seen.) If the public official or public figure

plaintiff manages to demonstrate actual malice–and this does sometimes

happen even though it is not the norm–the plaintiff is allowed to recover

the full range of damages (compensatory, including presumed, and

punitive). Punitive damages are considered appropriate because the

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Chapter 06 – Intentional Torts

defendant who speaks or writes with actual malice is either a deliberate

liar or the legal equivalent thereof. Figure 1 (p. 208) summarizes the

constitutional rules regarding defamation claims brought by public

officials and public figures.

Bertrand v. Mullin (p. 199): The Supreme Court of Iowa tosses out a

defamation verdict in favor of a public official/public figure plaintiff,

ruling that the plaintiff failed to prove actual malice and that the

defendants therefore should not have been held liable.

Points for Discussion: Ask students what the falsehood was here, and

what form it took. (A false implication that state Senate candidate

Bertram had personally sold a drug that was dangerous to children when

he worked for a company that sold the drug.) Wouldn’t that erroneous

implication be harmful to Bertrand’s reputation? So why doesn’t he win?

(Because he’s a public figure who must prove actual malice by clear and

convening evidence, and he can’t carry that burden here). Ask and work

through what actual malice is—and isn’t. (Knowledge of falsity or

reckless disregard is actual malice. Negligence isn’t. Neither is ill will

or a spite motive.) Review the types of reckless disregard for the truth.

Why wasn’t there a high degree of awareness of probable falsity here?

(Because the general factual background about Bertrand’s former

employer’s sale of the drug was largely true. Making the false

implication about Bertrand was at worst negligence, not knowledge of

falsity or reckless disregard for the truth.) Mention that the outcome of

this case is typical of a very high percentage of defamation cases brought

by public official or public figure plaintiffs: such plaintiffs tend to lose

(on appeal, at least) even though the statements about which they sued

were false and defamatory. They tend to lose because of an inability to

prove actual malice.

3) Private figure plaintiff cases

a) Note what private figures are and why the Supreme Court decided not to

treat them the same as public figures for proof-of-fault purposes. Yet the

Court concluded that free speech interests were significant enough in

private figure plaintiff cases to justify a proof-of fault requirement, albeit

one of lesser severity than actual malice.

b) Explain the two-rule approach set forth in Gertz for private figure

plaintiff cases: (1) to establish liability and therefore win the case, the

private figure plaintiff must prove negligence (the fault requirement

chosen in nearly all states, though Gertz allowed the states freedom to

choose some other level of fault so long as it was at least of the same

degree of severity as negligence); and (2) to recover presumed and

punitive damages (as opposed to actual damages for proven harm, the

damages recoverable if only negligence was proven), the private figure

plaintiff would need to prove actual malice by clear and convincing

evidence. Stress that under this two-rule approach, the private figure

plaintiff never has to prove actual malice in order to win the case (unlike

the rules governing cases brought by public official and public figure

plaintiffs). Note that in Gertz, the status of the plaintiff appeared to be

the only factor in the determination of which fault and damages rules

would apply. The public concern factor (see p. 204 of the text and the

discussion below) was added later.

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c) Explain that in 1985’s Dun & Bradstreet decision, the Supreme Court

added the public concern vs. private concern factor to at least the second

of the Gertz rules (the rule governing recoverable damages). Outline the

controversy over whether this additional factor also applies to the first

Gertz (the rule governing the fault that must be proven in order for the

private figure plaintiff to win the case). Note the narrower and broader

views of Dun & Bradstreet’s effect, as set forth in the text. The narrower

and broader views explain why, in Figure 1’s “Private Figure Plaintiff

and Subject of Private Concern” column, the “What Plaintiff Must Prove

to Win Case” entry reads this way: “Perhaps (probably?) fault–at least

negligence.” (Remind the students that Figure 1 provides a quick review

of the constitutional rules regarding fault and damages in defamation

cases. See p. 208.) Obsidian Finance Group v. Cox, a text case

discussed below, furnishes a helpful example of how Gertz’s two-rule

approach is applied.

d) What is a public concern, for purposes of the second Gertz rule (as

modified by Dun & Bradstreet)? Go over what the text outlines at 204.

Obsidian Finance Group also provides insight on the public concern

question.

e) Obsidian Finance Group v. Cox (p. 205): The U.S. Court of Appeals for

the Ninth Circuit reverses a district court judgment that was based on a

defamation verdict in favor of two private figure plaintiffs, an individual

and the corporation for which he worked. The district court erred in not

requiring the plaintiffs to prove negligence on the part of the defendant

and in permitting the jury to award presumed damages without a

showing of actual malice. Such a showing should have been required as

a prerequisite to an award of presumed damages because the false

statement at issue dealt with a matter of public concern.

Points for Discussion: This case serves as a very good illustration of the

two-rule approach of Gertz, as modified by Dun & Bradstreet. It also

sheds helpful light on the public concern determination that is important

for purposes of the second of the two rules. In addition, the case also

deals with the media vs. non-media issue by adopting the better view on

the question|: that the First Amendment-based fault requirements apply to

a defamation case regardless of whether the defendant is a member of the

media.

Before addressing the application of the Gertz rules to the case, ask the

students what the falsehood was here. (A blog post asserting that in his

role as a bankruptcy trustee, plaintiff Padrick had not paid the

government certain taxes owed by the bankrupt debtor—an assertion that

reflected badly on Padrick and presumably on his employer (Obsidian) as

well.) Note that numerous other statements by the blogger had been

classified by the district court as nonactionable statements of opinion,

and that the Ninth Circuit agreed with the district court’s ruling on those

statements.

Regarding the Gertz rules, where did the district court go wrong? (By

not requiring proof that the defendant was at least negligent, as required

by the first Gertz rule.) Why didn’t the district court require proof of

negligence? (Because it thought that the First Amendment rules apply

only in media defendant cases, and because the court thought the

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Chapter 06 – Intentional Torts

defendant blogger was not a member of the media.) What did the Ninth

Circuit say on that question? (That the First Amendment aspects of

defamation, including the Gertz rules, apply regardless of whether the

defendant is or is not a member of the media. The Ninth Circuit’s

position is the dominant one on that question.) For what other reason

must the jury verdict be tossed out and the case remanded for a re-trial?

(The district court erred in allowing presumed damages without requiring

the plaintiff to prove not merely negligence, but actual malice—a

violation of the second Gertz rule.) Why did the second Gertz rule

apply? (Because the statement at issue dealt with a matter of public

concern.) Why was a public concern present? (Because it was a widely

distributed allegation that Padrick committed tax fraud in connection

with a bankruptcy proceeding. Allegations of criminal activity are clear

examples of statements on a matter of public concern). Explore with the

students what the Ninth Circuit says about making the public concern vs.

private concern determination.

4) Note the media-nonmedia issue discussed in the text at pp. 204-05. As the text

suggests, calling it a ”non-issue” may be more accurate. Obsidian Finance

Group so suggests as well (see above).

6. Invasion of privacy

a. Emphasize that there are four distinct invasion of privacy torts.

b. Regarding intentional intrusion on solitude or seclusion, stress that the intrusion must

be highly offensive to a reasonable person. This requirement probably is why, for

example, telemarketers do not usually commit the tort. Their conduct may offend or

annoy in some respects, but typically would not be highly offensive for purposes of

the requirements of intrusion on solitude or seclusion. Also, stress that the tort

applies only where there is a reasonable expectation of privacy. Examples: chapter’s

opening vignette/introductory problem; Ethics in Action box at p. 209.

c. Distinguish public disclosure of private facts from defamation. In a public disclosure

of private facts case, the statements about the plaintiff are true. Also, the

“publication” required here involves a widespread dissemination of the facts at issue.

Note that the publicity must be highly offensive to a reasonable person. For example,

there probably is no liability if a newspaper reports that a local family went

camping–even if the particular family involved happens to regard this as an intensely

private and personal thing. Further example: chapter’s opening vignette/introductory

problem.

d. When discussing false light publicity, note that this form of invasion of privacy

probably also requires a widespread dissemination of the information at issue. See

Restatement (Second) of Torts §§ 652E, comment a, and 652C, comment a. Make

sure that students know what is at stake here: the violation of one’s identity that

accompanies its being misrepresented publicly. Also, be certain to distinguish this

tort from defamation, noting when the two torts do and do not overlap. Drawing this

distinction may be easier to do at a conceptual level than in many actual cases.

Examples: chapter’s opening vignette/introductory problem; Problem #12.

e. Commercial appropriation of name or likeness is the oldest form of invasion of

privacy and is different from the other forms because it involves the recognition of a

personal property right in addition to a “right to be let alone.” Stress that the

defendant’s use of the plaintiff’s name or likeness must have been commercial in

order to give rise to liability.

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Chapter 06 – Intentional Torts

f. Explain that the commercial appropriation tort helped spawn the right of publicity,

under which public figures (but not government officials or political figures) may

take legal action when their names, likenesses, or identities are caused for

commercial purposes without their consent. Note that the right of publicity’s

coverage may extend to things connected in the public mind with the plaintiff (e.g., a

famous race car driver’s equally famous car, or the “Here‘s Johnny” phrase that was

used for many years to introduce Johnny Carson on the “Tonight Show” and was held

to have been impermissibly used by a producer of portable toilets). As stated in the

text, a celebrity’s distinctive voice may be a protected identity attribute. See Midler

v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988). For a case in which a very expansive

scope was given to the identity concept, see White v. Samsung Electronics America,

Inc., 971 F.2d 1395 (9th Cir. 1992), rehearing denied and suggestion for rehearing en

banc rejected, 989 F.2d 1512 (9th Cir. 1993). Note, also, that the right of publicity is

inheritable–something that has been a financial boon to the Estate of Elvis Presley

and the estates of many other deceased celebrities.

g. There normally cannot be a right of publicity violation unless the defendant’s use of

the plaintiff’s name, likeness, or identity was commercial in nature. A

noncommercial use usually does not violate the right. Jordan v. Jewel Food Stores,

Inc., a text case discussed later herein, focuses on the often-crucial commercial vs.

noncommercial issue. This same issue can have First Amendment implications, as

Problem #11 illustrates. The C.B.C. Distribution & Marketing decision, a former text

case commented on below, also addresses the commercial vs. noncommercial

distinction and First Amendment issues.

h. Jordan v. Jewel Food Stores, Inc. (p. 210): The U.S. Court of Appeals for the

Seventh Circuit holds that a Chicago-based grocery store chain’s advertisement

congratulating former Chicago Bulls great Michael Jordan on his induction into a

basketball Hall of Fame is commercial speech, even though the advertisement does

not mention any particular item sold at the chain’s sores. Therefore, the court

concludes, Jordan’s right of publicity may have been violated.

Points for Discussion: Ask why the commercial vs. noncommercial issue is critical in

this case. (If the ad was commercial speech, Jordan may have a good right of

publicity claim. If it was noncommercial speech, Jordan’s claim would fail because

he would not be able to satisfy the requirements of a right of publicity claim and

because the First Amendment would bar such a claim.) Have the students identify

each party’s arguments. Ask why the court ruled as it did. (It regarded Jewel as

having a clear commercial motive even though the ad didn’t refer to specific products

and didn’t take the usual form a Jewel ad would take.) Note the court’s emphasis on

the prominence of the Jewel logo and the ad’s use of a variation of a Jewel slogan in

reference to Jordan. What do the students think of Jewel’s offering of congratulations

to Jordan|? Was it in significant part an attempt to bolster the image of the Jewel

stores by making them seem public-spirited, as the court appears to suggest? If so, is

that enough of a commercial motivation to make Jewel liable to Jordan? Was Jewel

effectively trying to use Jordan to help further the grocery chain’s economic

interests?

i. C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media,

L.P. (former text case; now Problem #5—see the key facts listed there): The U.S.

Court of Appeals for the Eighth Circuit holds that the First Amendment protects CBC

against right of publicity liability concerning its use of major league baseball players’

names and performance statistics in CBC’s fantasy baseball game.

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Points for Discussion: This potentially important decision highlights the role the First

Amendment may play as a defense in certain right of publicity cases. Over the years,

courts have struggled with how—and even whether—to take freedom of speech

interests into account in right of publicity cases. CBC Distribution & Marketing

therefore seems likely to be influential. Ask the students whether the usual elements

of a right of publicity claim are present here. (Yes, at least as to the players’ names,

because the names were used without consent in a commercial context.) Note the

court’s apparent concern about the prospect of effectively giving rights to the players

over their statistics (as supposed parts of their identity). In copyright law, we don’t

grant anyone exclusive rights over facts, so there does not appear to be a compelling

reason to do so under the right of publicity. Work through the court’s discussion of

the First Amendment interests at stake here, even though the fantasy baseball game

was commercial in nature. The expressive, entertainment-oriented, and informational

aspects of the game merit First Amendment protection, the court concludes. What if

CBC’s fantasy baseball game had used not only the players’ names and statistics but

also their photos of them? Would the case have come out the same way? (Perhaps

not. The players’ names are necessary to identify them and therefore should be fair

game in this context, the court reasons, but there seems far less need to use photos.)

Note the court’s statements that the players are already being paid handsomely for

their baseball exploits and thus do not have a compelling claim that right of publicity

licensing fees are necessary to enable them to capture the economic value of those

exploits and to provide an incentive for further professional efforts. What do the

students think of those statements? Is the court being too hard on these “poor” (not

in an economic sense) ballplayers?

j. Figure 2, added for the 16th edition, appears at pp. 213-14. It deals with a current set

of related issues: whether college athletes should have a right of publicity or something

akin to it; whether universities and the NCAA have committed antitrust violations in not

allowing college athletes to profit from their public images; and whether college athletes

have a right to a stipend or other financial compensation. You may want to discuss such

issues with your students, many of whom are likely to have developed views on these

subjects.

k. Note the Global Business Environment box at p. 215. It indicates that the right of

publicity does not apply in a case brought in a U.S. court by a U.S. citizen if the activities

about which the plaintiff complains occurred outside the U.S. and in a nation that does

not recognize the right of publicity.

7. Misuse of Legal Proceedings

a. Note the difference between malicious prosecution and wrongful use of civil

proceedings, as well as the considerable similarities between the two. Note that with

each of these torts. proof that the defendant acted in good faith on the advice of legal

counsel, after fully disclosing the relevant facts, conclusively establishes probable

cause in most cases. Also, proof of the plaintiff’s guilt is generally held to be a

complete defense to liability. The issue of the plaintiff’s guilt can be retried in the

malicious prosecution case, despite his acquittal in the criminal proceedings. Proof

of the plaintiff’s innocence, however, cannot support a malicious prosecution action if

the criminal proceedings were not terminated in his favor. Briefly note how abuse of

process differs from the torts just discussed.

8. Deceit (Fraud)

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a. Briefly sketch the elements of fraud. These elements are discussed more fully in

Chapter 13. If you will be covering that chapter, you may want to defer in-depth

consideration of fraud until then.

C. Interference With Property Rights

1. Trespass to land

a. Go through the noninclusive list of ways in which the tort can occur. For an example

of a trespass claim that failed, see Problem #10.

b. Note that these can all be said to involve an invasion of tangible matter on to the

plaintiff’s land.

c. Note the type of intent needed for liability and the need for harm to the land in other

cases.

2. Nuisance

a. Go through the noninclusive list of possible nuisances. Note the distinction between

private nuisances and public nuisances. (See pp. 215-16.)

b. How is nuisance distinguished from trespass to land? Most nuisances don’t involve

the invasion of tangible matter discussed earlier. However, this test only takes us so

far, because some invasions could go either way. For example, what about light

(particle theory or wave theory?)? And what about cases that may fit into one

category or another, depending on the court or the state–for example, flooding, dust,

pollution?

c. Stephens v. Pillen (p. 216): The Nebraska Court of Appeals affirms a lower court’s

ruling that a large hog operation constituted a nuisance and the lower court’s order

that the defendant must abate the nuisance within 12 months.

Points for Discussion: Use the case to review the elements of a nuisance. Note the

court’s discussion of intentional action as including consequences substantially

certain to result from a given course of action. Thus, the defendant’s hog operation

could be an intentional nuisance even if the defendant did not specifically intend that

it be a nuisance. Explore the issues surrounding the determination of whether the

defendant’s actions unreasonably interfered with the plaintiffs’ ability to use and

enjoy their property. Explain the difference between general damages and special

damages. Note the potentially harsh consequences for the defendant if further

attempts to control the hog operation’s odor problem prove no more successful than

earlier attempts made by the defendant.

d. Additional example: Problem #10 (nuisance claim failed, as did trespass claim).

3. Conversion

a. Go through the list of ways in which conversion may occur.

b. Point out that it is possible to be held liable for conversion if one buys or sells stolen

property in good faith. Note why this is possible.

c. Note also that the interference with the plaintiff’s property rights has to be serious.

What about other interferences that do not rise (or sink?) to the level of conversion?

Trespass to personal property remains a possible claim. For an out-of-the-ordinary

(and unsuccessful) attempt to use the trespass to personal property theory in the

context of an e-mail system, see Intel Co. v. Hamidi, which is discussed in the

Cyberlaw in Action box near the end of the chapter.

IV. RECOMMENDED REFERENCES:

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Chapter 06 – Intentional Torts

A. W. PROSSER & R. KEETON, THE LAW OF TORTS.

B. Arlen W. Langvardt, Media Defendants, Public Concerns, and Public Plaintiffs: Toward

Fashioning Order From Confusion in Defamation Law, 49 U. PITT. L. REV. 91 (1988).

C. Warren and Brandeis, The Right of Privacy, 4 HARV. L. REV. 1983 (1890). The seminal

work in the right of privacy area.

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