Although privacy invasion has won a place in American tort law, some of the privacy invasion lawsuits continue to face resistance. One that has been rejected in some jurisdictions is the tort lawsuit for publications that put a plaintiff in a false light. This tort is too much like defamation, some courts have ruled.
Countries that have rejected the privacy invasion torts altogether--England, for example--have done so on grounds thatthese torts overlap too much with existing causes of action for defamation, breach of confidence, breach of implied contract of confidentiality, infliction of emotional distress, and so forth.(1) Similarly, a leading example of an American rejection of the false light tort--Renwick v. News and Observer(2)--was grounded in a repugnance for overlap. A North Carolina Supreme Court majority in 1984 said that the tort overlapped with defamation and was essentially indistinguishable from it. A dissenter, however, argued strongly that false light was a unique tort, distinct from defamation; courts in other jurisdictions have agreed.
Who is right? Does the false light lawsuit serve a unique need? Or is it just a confusing, overlapping, unnecessary tort which--as the North Carolina majority suggested--jeopardizes the rules designed to protect the free-press interests of mass media defendants in defamation suits?
An examination of ten key false light cases decided between 1913 and 1994 suggests that the answer is that false light is in many ways a unique lawsuit. But the examination indicates that the false light tort also overlaps with libel sometimes, and that courts have not policed the distinction between false light and libel very well. Real confusion has resulted. Clearly, false light claims should not be allowed where they overlap with defamation. Possibly, the review suggests, the problems of the overlap can be cured without total rejection of the false light right to sue; but possibly not.(3)
I. Recent Scholarship
Some scholarly opposition to the false light tort can be strong. Writing in New York University Law Review in 1989, Diane Leenheer Zimmerman argued that North Carolina and Missouri(4) were right in rejecting the false light form of privacy lawsuit because the tort has a chilling effect on news publishing. She said that constitutional protections from defamation law do not adequately protect accurate speech from false light suits, in that the protections from New York Times Co. v. Sullivan are not perfect even in libel law, and that the rules from Gertz v. Welch should not be applied to let private person plaintiffs recover in false light for negligent nondefamatory falsehoods.(5)
It is difficult to establish what is true for purposes of discouraging false speech while protecting the true, and preventing harm to the individual or body politic from false speech is antithetical to the First Amendment, she argued.(6)
A case note in the DePaul Law Review in 19897 similarly questioned the value of the false light tort, and criticized an Illinois appeals court for recognizing the tort in 1987, in view of the state's record in giving extreme deference to the mass media in privacy cases. In a postscript, the case note had to acknowledge that in 1989 the state's high court recognized the false light tort. The case note endorsed the Illinois Supreme Court's imposition of an actual malice test on all false light plaintiffs.(8)
II. THEORY VERSUS PRACTICE
That false light is distinct from defamation has already been settled by definition. But definition is theory. Unfortunately, practice has not matched theory, and courts have not held fast to the theoretical distinctions between the two torts. Hence, in practice the two have been mashed together into the melange that drove the North Carolina Supreme Court in Renwick(9) to reject the false light tort altogether.
By definition false light has nothing to do with reputation. By definition defamation has everything to do with reputation. Yet courts in some states have ruled that injury to reputation or status was a recognizable element of damages in a false light case.(10) From such rulings chaos and confusion result.
Recognizing a definitional difference, a Renwick dissenter wrote:
The distinctions between the defamation (libel and slander) and
invasion of privacy torts are often blurred. While the interest protected
in defamation actions is one's reputation or good name, the interest
protected in invasion of privacy actions is often characterized as one's
right to privacy, or, simply stated, one's right to be let alone.... The
elements of a false light invasion of privacy claim though variously
stated include (1) publication (2) of a false statement concerning the
plaintiff which places plaintiff in a false light that would be offensive
to a reasonable person in plaintiff's position. The essence of the term
"false light" is a major misrepresentation of a person's character, history,
activities or beliefs which places that person in an objectionable false
position before the party or parties to whom it is communicated.(11)
How, one might ask, is "misrepresentation . . . which places that person in an objectionable false position" any different from defamation?
The answer is that it is different and that in the difference does indeed lie the essence of false light.
III. False Light Invasions That Are Not Defamations
By definition, all defamations are false light privacy invasions. Not all false light privacy invasions are defamations, however, and it is this class of non-defamatory incidents that deserves to be called false light privacy invasion. A false light privacy invasion deprives a person of control over his or her public image or public persona or publicly known character or personality, and does so in a highly offensive way.(12) The following lists false light privacy invasion cases that are not also defamations. Some of these are well-known cases.
In Spahn v. Messner, (13) the plaintiff sued as a result of fictionalizations in a children's book that made him out to be a war hero. The plaintiff was a famous baseball pitcher but not a war hero. The fictionalization could only have raised his reputation even as it took from him the ability to accurately present himself to others. Similarly, in Moloney v. Bay Comics Publishers, (14) the plaintiff was aggrieved by his presentation in a narrative accompanying comic-style pictures as a hero of a disaster in which a small plane crashed into the Empire State Building in New York City. The plaintiff had assisted survivors from the crash site and had been rewarded for …