False light constitutes a distinct theory of recovery for the tort of invasion of privacy[i]. One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of privacy, if[ii]:
- the false light in which the other was placed would be highly offensive to a reasonable person, and
- 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.
False light/invasion of privacy is one of four types of invasion of privacy and the elements of the false light type are[iii]:
- publication of some kind must be made to a third party;
- the publication must falsely represent the person; and
- that representation must be highly offensive to a reasonable person.
A constitutional right to privacy exists only against the acts of a federal or state government. It does not extend to a private party. Since, there is no constitutional right of privacy to a private person the right arises from state law, whether common or statutory.
In the context of a false-light claim, giving publicity means making a matter public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge[iv]. Communication of a fact to a single person or even to a small group of persons is not publicity.
A false-light claim does not require that the information made public be private, but it does require that the information be false. Thus, falsity is the sine qua non of a false-light claim[v].
In order to be actionable, the false light in which the plaintiff is placed must be highly offensive to a reasonable person[vi]. Although it is not necessary that the plaintiff be defamed, publicity placing one in a highly offensive false light will in most cases be defamatory as well.
A false light privacy action differs from a defamation action in that the injury in privacy actions is mental distress from having been exposed to public view, while the injury in defamation actions is damage to reputation[vii]. Truth and privilege are defenses available in both causes of action.
[i] Regions Bank v. Plott, 897 So. 2d 239 (Ala. 2004).
[ii] Polin v. Dun & Bradstreet, Inc., 768 F.2d 1204 (10th Cir. Okla. 1985).
[iii] Dominguez v. Davidson, 266 Kan. 926 (Kan. 1999).
[iv] Regions Bank v. Plott, 897 So. 2d 239 (Ala. 2004).
[vi] Fellows v. Nat’l Enquirer, 42 Cal. 3d 234 (Cal. 1986).
[vii] Dominguez v. Davidson, 266 Kan. 926 (Kan. 1999).