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Media win broad protections from "false light" privacy suits

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  1. Libel and Privacy

    NMU         COLORADO         Privacy         Sep 19, 2002    

Media win broad protections from “false light” privacy suits

  • The state high court said it would not recognize a cause of action for portraying people in a false light, holding that the such claims would have a chilling effect on speech.

The Colorado media won important protections from invasion of privacy lawsuits under a state supreme court ruling issued Sept. 16 in Denver. The decision affects one type of privacy claim, known as the false light tort.

A narrow majority of Colorado’s high court held that media publications cannot be sued for portraying people in a false light.

The “false light” claim, which the court said is recognized in 30 states, generally allows a person to sue a media organization for reckless publication of false information about the person that is highly offensive. Although similar to defamation, “false light” is not the same. The report need not be defamatory to be actionable as false light.

The Colorado court said Monday that the false light claim is unnecessary because the publication of false and damaging information is already actionable as a defamation claim. The court also said that recognition of a claim for false light would have a “chilling effect” on the news media’s free speech activities, because elements of the claim are vague and subjective.

The court’s ruling arose in a dispute over a story published by the Denver 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 of the children, Eddie Bueno, sued the newspaper and its reporter, saying the article unfairly lumped him with his troublemaking siblings. Eddie Bueno lived a life free of crime, having left the Bueno family home when he was 13.

The article was accompanied by a family tree, illustrated with mug shots of each of the Bueno children who had been arrested. The caption under Eddie Bueno’s photo said: “Eddie, 55, oldest of the Bueno children.” The caption did not distinguish Eddie Bueno as a siblings 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’s photo, according 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.”

According to court papers, the Rocky Mountain News reporter tried to contact Eddie Bueno three times, but he did not return her calls.

At trial in May of 1997, a jury awarded Eddie Bueno $106,507 in damages. Monday’s decision nullified that award.

Three justices dissented from the supreme court’s ruling, expressing outrage at the majority’s decision to ignore a cause of action they say has consistently been recognized in Colorado until now. Chief Justice Mary Mullarkey, who wrote the dissenting opinion, recommended that instead of rejecting the false light claim, courts should limit the amount of damages that can be awarded when plaintiffs raise both false light and defamation claims.

The dissent said the court’s ruling “not only narrows privacy protections in Colorado and contradicts a national majority rule, but also deprives Eddie Bueno of the rather modest compensation he won and sends him back into more litigation with a vastly better funded foe.”

Bueno still may have a defamation claim. His lawsuit now goes back to the Colorado appeals court for a ruling on whether he may pursue such a claim.

“The decision is a continued recognition by the Colorado Supreme Court of the expansive protection of First Amendment values,” said the newspaper’s attorney, Marc D. Flink. Flink will represent the newspaper in the appeals court on the issue of whether Eddie Bueno can prevail on a defamation claim.

(The Denver Publishing Co. v. Bueno; Media counsel: Marc D. Flink, Bruce W. Sanford and Bruce D. Brown, Baker & Hostetler, LLP, Washington, D.C. and Denver, Co.) WT

© 2002 The Reporters Committee for Freedom of the Press

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