A recent decision calls false light outdated
From the Fall 2002 issue of The News Media & The Law, page 22.
By Wendy Tannenbaum
After a 1994 series of stories in the Rocky Mountain News about a local crime family lumped a Denver man in with his rogue siblings, he sued on claims of defamation and “false light” invasion of privacy. In mid-September, the Colorado Supreme Court rejected Eddie Bueno’s false light claim, following courts in nine other states that refuse to recognize that form of privacy claim because of its potential to muffle the media.
The court had agreed to hear the case for the sole purpose of determining whether Colorado should recognize false light as a legitimate legal claim. The court decided it should not.
Avoiding false light claims can present problems for the media, because the definition of false light is vague and requires a determination of whether publication might be considered “highly offensive.” It also is redundant, because the law of defamation covers almost every situation where a claim for false light might be made — although false light claims can prevail even when the information published is true.
The Colorado case is the latest step in a slow but important trend among states that have decided that this controversial form of privacy claim has no place in their courts. The trend is good news for the media, who have enough to worry about with defamation and other privacy lawsuits and who inevitably become the main targets of false light where it exists.
False light: What is it?
False light is one of four commonly recognized types of invasion of privacy claims. The others are generally referred to as “intrusion upon seclusion” (intruding into a person’s private affairs, usually in the course of newsgathering), “misappropriation of another’s name or likeness” (using a person’s image or name for advertising or other commercial purpose, without consent), and “publication of private facts.” States are free to adopt any or none of the four privacy claims, but most states recognize at least one.
The false light offense is generally described as wrongfully giving publicity to something that puts a person in a false light and that is highly offensive. A person making a claim that the media placed him in a false light must prove all of the following:
- The media gave publicity to a matter by making a statement concerning the person.
- The substance or “gist” of the statement was false.
- The statement was “highly offensive” to a reasonable person.
- Where the statement was made about a public figure, the defendant knew the statement was false or acted with “reckless disregard” as to the falsity of the statement.
- The person suffered harm as a result of the publicity.
The chilling effect arises because the concept is vague and hard to pin down, particularly because it must evaluate the “gist” of a work, as well as what is “offensive” to the general public. Because it is so amorphous, a false light finding can be hard to predict, and equally hard to avoid.
Concerned courts fear that in avoiding false light lawsuits, journalists may refrain from publishing valuable work. This “chilling effect” is devastating, not just for journalists, but for the public who depend on a vigorous press.
States that have done away with false light have also done so, according to court opinions, because it is an unnecessary and redundant legal claim.
Although they are worded differently, the elements of a false light claim are almost identical to those of a defamation claim. Both claims require falsity and communication to other people. And a statement that is “highly offensive,” for purposes of false light, is likely to be harmful to one’s reputation under defamation law.
Courts and scholars agree that the two claims are similar. C. Thomas Dienes, a professor at George Washington University Law School, said that false light has “no separate intellectual foundation” from defamation and requires essentially the same type of proof. The Colorado Supreme Court called the two claims “nearly identical.”
However, a false light claim has the potential to succeed against the media where a defamation claim would fail. It is possible, for instance, that the “gist” of a story could be considered false, even where the actual statements in the piece are true.
In a recent case against Playgirl magazine, actor Jose Solano Jr. won a false light claim because of the placement of headlines around his cover photo. The court said the gist of the magazine’s cover — which featured headlines like “12 Sizzling Centerfolds Ready to Score With You” and “TV Guys. Primetime’s Sexy Young Stars Exposed” — put Solano in a false light by suggesting he might be pictured nude inside the magazine, even though the cover could not have given rise to a defamation claim. (Solano v. Playgirl, Inc.) (See NM&L, Summer 2002)
In another case, an entertainer who performed at an amusement park with a swimming pig brought defamation and false light claims based on the publication of her photo in Chic magazine. The photo was a true representation of the woman and her pig, so it could not give rise to a defamation claim. But her false light claim succeeded because the essence of the piece, which made the entertainer’s act seem sexual and deviant, was held to be false. (Braun v. Flynt, 1984)
Whereas defamation aims to protect against harm to a person’s reputation, false light law is geared toward guarding against emotional distress. Thus, although the two claims are seen as almost identical, false light can cover slightly different territory.
In addition, defamation law provides more protections for defendants than the law of false light. For instance, while many states recognize a “fair report” defense to defamation — allowing the media to report libelous statements made by others in certain public meetings — the same defense may not be available against a claim for false light.
As the Indiana Supreme Court put it in 1997, privacy claims such as false light often function as little more than a “lite” version of defamation, “promising the same great take with only half the facts.” In the majority of cases, a journalistic piece that gives rise to a claim for libel also will be open to a separate claim for false light. In those situations, it is more desirable to deal only with a defamation claim, because defamation law is more clearly defined and is generally more protective of the media.
The courts that have done away with false light have decided that a “lite” version of defamation law threatens the free press and is unnecessary because defamation covers the same ground.
Family problems
The recent Colorado case used both rationales in its decision not to recognize false light.
The court’s ruling arose in a dispute over a story published by the Rocky Mountain News in 1994. The story recounted the criminal activities of the family of Pete and Della Bueno, a couple who had 18 children, 15 of whom had criminal arrest records. One daughter died in 1977.
One of the children, Eddie Bueno, sued the newspaper and its reporter, saying the article unfairly lumped him in with his troublemaking siblings. Eddie Bueno was one of two Bueno children who lived a life free of crime.
The article was accompanied by a family tree, illustrated with mug shots of each of the Bueno children who had been arrested. The caption did not distinguish Eddie Bueno as a sibling who had never been arrested. In one edition of the newspaper, the phrase “Only brother to stay out of trouble” was attached to another Bueno photo, according to court records. The end of the article clarified that “Freddie, the youngest, and Eddie, the oldest, are the only two Bueno boys who have stayed out of trouble.”
Eddie Bueno sued the newspaper for defamation and false light.
“We believe false light is too amorphous a tort for Colorado, and it risks inflicting an unacceptable chill on those in the media seeking to avoid liability,” said the Colorado Supreme Court majority. The court recognized that Bueno may have a defamation claim if he can prove a statement about him was false, but, in a significant media victory, decided that Bueno’s false light claim would not be recognized in Colorado. (Denver Publishing Co. v. Bueno)
A trend?
Bruce Brown, one of the attorneys representing the media in the Bueno case, said the Colorado court’s decision marked an important point in the ongoing trend of states rejecting false light. The trend began in the 1980s and 1990s, Brown said, when states including North Carolina, Texas and Minnesota refused to recognize false light.
In 2001, in a case against the owner of WDEF-TV in Chattanooga, the Tennessee Supreme Court went against that trend and concluded that Tennessee courts would recognize false light claims.
The defendants in Bueno worried that the Colorado court would follow the Tennessee case, since it was the most recent decision on the topic by a state supreme court, Brown said. He said that one of the media’s arguments in Bueno was that most states that had expressly recognized false light — besides Tennessee — had done so in the 1960s and 1970s, before courts realized how false light could be expanded and misused against the media.
“It’s nice to have Bueno come along and reject the Tennessee case and send the trend back in the direction of rejecting false light,” Brown said.
Ten states — Colorado, Massachusetts, Minnesota, Missouri, New York, North Carolina, Ohio, Texas, Virginia and Wisconsin — have expressly rejected false light as a viable claim when recovery is sought for untrue statements. Some of those states, such as Virginia, have statutes that dictate what type of privacy claims may be made and that specifically leave out false light. In the other states, the highest courts have determined, as a matter of common law, that false light will not exist in their state.
In 11 states, supreme courts have not had an opportunity to rule on whether false light is recognized. In those states — Alaska, Florida, Hawaii, Michigan, North Dakota, Oregon, South Carolina, South Dakota, Vermont, Washington and Wyoming — journalists should assume that courts will hear claims against the media for false light. In South Carolina and Washington, false light claims are less likely to succeed, as lower courts have predicted that those states’ supreme courts would not recognize such claims.
The remaining 29 states and the District of Columbia accept false light as a viable claim.
What journalists should know
States that have done away with false light are no less concerned with the accuracy of journalists’ work than other states.
As the Colorado Supreme Court said: “We would all hope that the press considers the impact of publicity upon the individuals involved; we would also hope that the press scrupulously avoids publication of any false material.”
What the elimination of false light does — in those states that have declined to recognize it — is to allow journalists to focus on the more clear standards of defamation law and therefore avoid confusion when they are deciding what they can legally publish.
Most states do allow false light claims to be brought, even where a defamation claim would suffice.
Law professor Dienes, who spent 14 years doing prepublication review for U.S. News & World Report, advises journalists worried about false light to verify sources and maintain accuracy.
An accurate and unbiased account of a newsworthy event generally will not give rise to a false light claim. In June 2002, a reporter for The New York Times escaped false light liability for her report on a rumor that a Wall Street executive was actually a convicted felon.
Although the rumor she reported turned out to be false, the court said her “agnostic” story, which pointed out flaws in both sides of the story and was based on extensive research into the rumor, could not be the basis of a false light lawsuit. (Howard v. Antilla)
“Just be as careful as you are generally as you pick up things that would be potentially defamatory,” Dienes said, and you are likely to find anything that might give rise to a false light claim.
The claims are so similar, he said, that careful screening for potential libel claims will generally prevent false light lawsuits as well.