Thursday, December 3, 2015

Bindrim v. Mitchell case brief

Bindrim v. Mitchell case brief
1979 
Facts: Bindrim, who is a licensed psychologist, used “nude marathon in group therapy
as a means of helping people shed psychological inhibitions with removal of their clothes. Mitchell participated in this nude therapy program telling him she was participating only for therapeutic reasons and signing a contract not to take any photos, write articles or disclose what happened at this event. Shortly after, she contracted with Doubleday for a novel based on this technique that was called touching with a principal character, Herford, using this technique. Plaintiff sues for defamation and libel against Doubleday and Mitchell. 
Plaintiff won but then trial court granted a new trial which was appealed. 
Decision: Affirmed the lower court’s decision 
Reasoning: First case: Defendant’s defend by saying that the character in the book is not identified as the plaintiff and they are completely different so even if the statements in book are true, it cannot be identified with this plaintiff. The court said that besides physical appearance and employment, everything else about the character was the exact same as the plaintiff. In previous cases, it was decided that if the plaintiff could be identified by a stranger, then there is defamation but if the person cannot be identified by a stranger, the plaintiff could not have been harmed by the remarks. They continue by saying that the character in all but name and physical characteristics was exactly the same as the plaintiff. 
Test – “Whether a reasonable person, reading the book, would understand that the fictional character therein pictured was in actual fact the plaintiff acting as described”. It is also irrelevant if all readers realized that Herford and plaintiff were identical, only if it was published and at least one person can realize it. 

Dissent: thinks that the decision is not a good one because it supports the idea that not accurately portraying a certain technique can be libel. That is what happened in this case, the technique was not accurately portrayed.
Note: Libel consists of publication of defamatory matter by written or printed words or physical form or any other communication method that has qualities of written or printing
Slander consists of publication of defamatory matter by words, gestures, or any other communication not in libel. 

Dissemination, the deliberate and premeditated character of publication and the persistence of defamation are factors to consider in determining slander v. libel 

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