Invasion of Privacy: False Light

Invasion of privacy claims are often divided into one of four separate types: 1) intrusion, 2) misappropriation, 3) public disclosure of private facts, and 4) "publicity that unreasonably places the other in a false light before the public." Of the four privacy torts, "false light" is the most frequently criticized and the least widely recognized.

However, when someone is publically portrayed as something he is not and a false impression about him is made, depending on the state, he may be able to pursue a "false light" invasion of privacy claim.

Definition of False Light

While laws often differ between the states, many states have based their privacy laws on the Second Restatement of Torts. Section 652e of the Restatement provides that you can be subject to liability for invasion of privacy if you:

1. Give publicity to a matter concerning another;
2. That places the other before the public in a false light;
3. That the false light would be highly offensive to a reasonable person; and
4. That you knew 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. False light also requires some degree of fault on the part of the defendant - depending on the jurisdiction and whether the plaintiff is a public or private figure, this can range from negligence to "actual malice."

Notably, not all states allow false light claims and in those that do, specific requirements as to what is needed to establish a cause of action vary - so be sure to carefully check the law in your jurisdiction or speak with a local attorney.

How Do False Light Claims Arise?

Often, false light claims are brought against media organizations when captions or headlines next to photographs insinuate 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 that published a picture of the woman next to a headline about quitting work at age 101 due to pregnancy and a story detailing an (untrue) extramarital affair.

Not Recognized In All States

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

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, but generally, a false light claim is focused on the damage to a person's feelings or emotional well-being, whereas a defamation claim is concerned with the damage to a person's reputation. The Restatement offers the following illustration: The plaintiff is a war hero about whom the defendant makes a movie. The defendant adds in 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.

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, you might argue that the published statements were parody and understood to 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 his performance of his public life or duties. Finally, you may contend that the published statements were made in connection with a matter of public interest. 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 the law against invasion of privacy torts such as false light, your best bet is to speak with a qualified attorney who 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.