Invasion of Privacy: False Light

The right to privacy has evolved through common law. Common law refers to rules created by judges through case precedents. These cases have evolved the law over time through courts of appeals and even supreme court decisions in different states.

The right to privacy focuses on a person's right to remain outside of the public eye. It is one of the areas of common law that intersects with tort law. Tort law involves civil lawsuits for wrongful conduct, such as bad acts that can even result in wrongful death. Invasion of privacy claims are recognized as tort law causes of action, or tort claims that can be filed in court.

Invasion of privacy claims are divided into four types:

1. Intrusion
2. Misappropriation (or appropriation)
3. Public disclosure of private facts, and
4. False light

False light is publicity that unreasonably places someone in a false light before the public. False light involves misleading depictions that create false impressions of victims. This overlaps with defamation cases because defamatory statements can involve the same issues. Because it is similar to defamation (reputational harm), the tort of false light is not recognized by all states.

Definition of False Light

While laws often differ between the states, many jurisdictions have based their privacy laws on the Restatement (Second) of Torts. The restatement is a collection of general common law principles that exist across the United States. It provides that a person who gives publicity to another may be liable for false light invasion of privacy if:

1. The false light in which the other was placed would be highly offensive to a reasonable person; and
2. The actor had knowledge of or acted in reckless disregard as to: 

The falsity of the publicized matter; and

The false light in which the other would be placed

To give "publicity" in this context is to make the matter public, or to communicate it to the public at large. This is different from "publication" in defamation actions, which can include communication to just one individual.

To place someone in a false light does not necessarily mean that specifically false statements were made about the individual. Instead, misleading implications that the average person would find highly offensive are often enough.

As stated, not all states allow false light lawsuits. In those that do, specific requirements as to what is needed to establish a cause of action vary. States vary in their expectation of the degree of fault on the part of the defendant. For example, in some states, the defendant would be more likely to be blameworthy for having actual knowledge of a falsehood created by their publicity.

The law has struggled to balance First Amendment free speech rights with issues that are of public concern. Through the case Time, Inc. v. Hill, the United States Supreme Court placed limits on false light cases involving people in the public eye.

If a plaintiff is a public figure, they must show that the defendant acted with actual malice before they can win. The actual malice standard is borrowed from defamation law's deference to matters of legitimate public concern. To have actual malice, the defendant must have knowledge of the falsehood or must otherwise act with reckless disregard in publicizing it.

How Do False Light Claims Arise?

Often, false light claims are brought against media organizations. This happens when news captions or headlines next to photographs imply false things about the individuals pictured.

For example, the estate of a 97-year-old woman prevailed on her "false light" claim against a tabloid. The tabloid misleadingly published her picture next to a headline about quitting work at age 101 due to pregnancy. Her photo appeared alongside a fictitious story detailing an extramarital affair that had nothing to do with the woman.

Not Recognized in All States

As noted, many states (including California, Ohio, and New Jersey) still allow false light claims. But not all states recognize it as a separate cause of action (claim). In these states, it is often perceived as overlapping with defamation and, therefore, unnecessary. In addition, because it doesn't have the same procedural limitations of defamation actions, it's frequently viewed as having the potential to unacceptably restrict free speech rights.

Major states where false light is not actionable include:

• New York
• Florida
• Texas

What Is the Difference Between False Light and Defamation?

The line between the two can be unclear. Generally, a false light claim is focused on the damage to a person's feelings or emotional well-being. In contrast, a defamation claim is concerned with the damage to a person's reputation.

The Restatement offers the following illustration to distinguish defamation and false light claims:

The plaintiff is a war hero about whom the defendant makes a movie. The defendant adds a detailed narrative of a fictitious private life of the plaintiff, including a romance. Although the plaintiff is not defamed by the representation (his reputation is not damaged by the portrayal), he can still bring a false light invasion of privacy claim.

In both cases, however, the plaintiff can request special damages and punitive damages. Special damages are ascertainable (calculable) damages such as:

• Medical expenses to cure emotional distress
• Lost wages, earning capacity, and income

Punitive damages are extra amounts awarded by courts to punish a defendant that acts egregiously. For example, a defendant that acts with actual malice may need to be deterred from future reckless behavior. A court may create an example out of such a defendant by awarding punitive damages.

Defenses

If you are the defendant in a false light claim, there are a variety of defenses that may be available to you. Depending on the circumstances and jurisdiction (state), you might argue that the published statements were parody and understood by the average reader as a joke.

You may also defend your case on the grounds that the plaintiff was a public official and the published statements related to the performance of their public life or duties. Finally, you may contend that the published statements were made in connection with a matter of public interest.

1. Truth is also always a defense to false light as long as both:
2. The facts contained in the publicity are true; and
3. The impressions they create about the defendant are also true

Again, check the law in your jurisdiction or consult with a lawyer for specifics.

Next Steps: Get More Legal Information

Do you believe you have a claim against another person for depicting you in a false light? If you want to learn more about invasion of privacy torts such as false light, your best bet is to speak with a qualified attorney. They can explain the law to you and help you file your case, should you need to go to court. You can learn more from an experienced personal injury attorney in your area.

Keep in mind that, as with all torts, there is a filing deadline in your state. This is known as a statute of limitations, which varies in time depending on your jurisdiction. You must file your case before its expiry, or you will be permanently barred from asserting your claim.