Getting it right, but in a "false light"

False light is one of four categories that comprise the privacy torts. (Public disclosure of private facts, intrusion upon seclusion and misappropriation represent the other three.)

Often described as duplicative of defamation, invasion of privacy by false light is recognized in about two-thirds of states nationwide. The remaining one-third either never recognized the tort or did so initially and then rejected the cause of action altogether, in most cases because of its overlap with defamation.

In those jurisdictions that do recognize false light, the specific requirements for bringing a claim vary. In general, though, the cause of action requires the following elements:

• widespread publicity of the information (False light’s publication requirement varies from that in defamation, where publication to just one person is sufficient.);

• publicity that places the person in a false light that would be highly offensive to a reasonable person; and

• fault on the part of the publisher.

Perhaps the most significant difference between false light and defamation is the nature of the interests protected by each; defamation protects the objective interest of reputation while false light protects the subjective interest of emotional injury that includes personal feelings like embarrassment, helplessness or mere hurt feelings. Accordingly, false light plaintiffs need not show reputational damage caused by publicized information, only that the material would be highly offensive to a reasonable person -- a vague standard that potentially chills speech.

In addition, some states hold that false light claims concern untrue implications and do not require directly false statements. As such, authors in these states may be liable for wholly truthful publications that somehow create a false implication that would be highly offensive to a reasonable person.

In fact, that’s exactly what happened to the Pensacola News Journal in 2003, when a jury there, in a case that stunned both journalists and media lawyers, imposed an $18.28 million false light verdict against a media defendant for a truthful report. In Anderson v. Gannett Co. Inc., Joe Anderson Jr., the owner of a road-paving company, sued the newspaper over an article that truthfully reported that he shot and killed his wife 10 years earlier in a hunting accident. Although Anderson conceded that the facts in the article were true, he claimed that its failure to state that the authorities ruled the shooting accidental until two sentences after the original mention of the shooting created the false impression that he murdered his wife and escaped criminal prosecution because of his political influence.

An intermediate appellate court reversed the jury award, ruling that the trial court should have dismissed the case because Anderson mischaracterized his lawsuit as a false light claim to evade the two-year statute of limitations in Florida defamation cases. The Florida Supreme Court in a companion case titled Jews for Jesus, Inc. v. Rapp held in October 2009 that Florida no longer recognizes, if it ever did, a cause of action for false light invasion of privacy, a tort that is "largely duplicative of existing torts, but without the attendant protections of the First Amendment.”

Anderson is a compelling example of how publishers can easily be caught unaware of an actionable false light claim. Digital journalists and others, however, can take steps to better protect themselves from this liability, including the following measures:

• Carefully examine an article for statements that could give rise to false light claims just as closely as you do for allegedly defamatory statements, keeping in mind that identifying highly offensive material may require an editing analysis different from that used to identify material that could damage one’s reputation.

• In states that recognize false light claims based on untrue implications, you may often have to step back and examine the information as a whole to see if it somehow creates a false impression. When doing so, keep in mind the Anderson case as a reminder that the juxtaposition of two wholly truthful statements could be sufficient to imply a false statement about the subject.

• In states that require explicit falsity, fact-check the publication very carefully. Even if they are highly offended by the statements, readers in these states would likely be precluded from suing for false light if the comments are true. (If you are unsure about the legal standard governing false light in your state or if the cause of action is even recognized there, contact the Reporters Committee for additional, specific information.)

• Always be cognizant that statements that seem completely benign to you may be offensive to more sensitive, “thin-skinned” people and could give rise to false light claims if also false or create a false implication.

• Be particularly careful about how you illustrate articles or other online information. Consider this example: A few months ago, you photographed a local service station and used the image, which depicted the gasoline pumps, the price board and several customers going about their business there, to illustrate your story about rising gas prices. Now you use the file photo to illustrate your online post and banner stating, “Gas drive-offs on the rise, police report.” Clearly identified people who are depicted pumping gas in the photo could bring a false light invasion of privacy claim against you if the false implication that they planned to illegally speed away from the station without paying for their gas would be offensive to a reasonable person.

• Along these lines, the Citizen Media Law Project notes that when working online, bloggers and other Internet-based authors should be especially mindful of the formatting of their web sites. They should ensure that the site is not inadvertently reformatted such that statements and images are unwittingly juxtaposed in a way that creates an implication you did not intend.