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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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Chapter 06 - Intentional Torts
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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Chapter 06 - Intentional Torts
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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Chapter 06 - Intentional Torts
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.
6-10
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