False Light Invasion of Privacy

The tort of false light invasion of privacy has been recognized in the majority of American states and codified in Section 652E of The Second Restatement of Torts. It protects the interest of individuals in not being placed before the public in an embarrassing, humiliating, or otherwise objectionable false light. Whether this interest is properly characterized as a dignitary or a reputational interest is a matter of dispute among courts and commentators.

Although the false light tort closely resembles and substantially overlaps with the tort of defamation, its scope differs. Whereas defamation is limited to derogatory statements that significantly impair a person’s community standing or associational opportunities, even a non-disparaging statement is actionable as an invasion of privacy if the false light is of a kind that would be—as the Restatement puts it—‘‘highly offensive to a reasonable person.’’ Thus, there can be liability even if the false light is laudatory, as when a star athlete who served honorably but uneventfully in the military is falsely depicted as a war hero, or when a hostage victim is falsely described as bravely resisting her brutal captors.

The First Amendment limits the availability of false light actions, but the precise nature of this limitation is uncertain. In 1967, in Time, Inc. v. Hill, the U.S. Supreme Court held that the rule of New York Times v. Sullivan—which requires public official plaintiffs in defamation cases to prove that the defamatory falsehood was published ‘‘with knowledge that it was false or with reckless disregard of whether it was false or not’’—applies as well in false light cases. However, it is uncertain whether the holding of Hill survives the Court’s subsequent ruling in Gertz v. Robert Welch, Inc. that private figure defamation plaintiffs need only prove negligence. This issue was left unresolved in Cantrell v. Forest City Publishing Co., the Supreme Court’s only other false light decision. Some lower courts continue to adhere to Hill, whereas others permit private figure false light plaintiffs to recover on a showing of negligence.

Early predictions that the false light tort would ultimately supplant the older tort of defamation have not been fulfilled. Some courts, including the highest courts of several states, have rejected the tort altogether, whereas a number of others have limited its scope in various ways. Academic commentary on the tort has been predominantly critical, with some writers urging its outright abolition and others recommending that it be confined to nondefamatory falsehoods. Chief among the reasons for judicial and academic resistance is the danger, which is exacerbated by the tort’s uncertain boundaries, of a chilling effect on constitutionally protected speech. There is also concern that the false light tort adds unnecessary complexity to defamation litigation, that it may enable plaintiffs to circumvent various speech-protective rules that have traditionally restricted recovery for defamation, and that the harm caused by a nondefamatory falsehood is seldom serious enough to warrant legal remedy.

MICHAEL MADOW

References and Further Reading

• Keeton, W. Page, et al. Prosser and Keeton on the Law of Torts. St. Paul, MN: West Publishing, 1984.
• Prosser, William L., Privacy, California Law Review 48 (1960): 3:383–423.
• Schwartz, Gary T., Explaining and Justifying a Limited Tort of False Light Invasion of Privacy, Case Western Reserve Law Review 41, No. 3 (1991): 885–919.
• Warren, Samuel D., and Brandeis, Louis D., The Right to Privacy, Harvard Law Review 4 (1890): 5:193–220.
• Zimmerman, Diane L., False Light Invasion of Privacy: The Light That Failed, New York University Law Review 64 (1989): 2:364–453.

Cases and Statutes Cited

• Cantrell v. Forest City Publishing Co., 419 U.S. 245 (1974)
• Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)
• New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
• Time, Inc. v. Hill, 385 U.S. 374 (1967)
• Restatement (Second) of Torts } 652E (1976)

See also Appropriation of Name or Likeness; Defamation and Free Speech; Invasion of Privacy and Free Speech; Right of Privacy