Believe it or not, The United States Constitution doesn’t mention “privacy” once; but that doesn’t mean invasion of privacy isn’t protected. After all, the fourth amendment guards against unreasonable search and seizures, and the ninth ensures that rights not explicitly mentioned in the Constitution are also protected. As such, many states have False Light invasion of privacy laws on the books.
As a private citizen, you have a right to protect yourself from unflattering and unwanted publicity. The legal concept is known as “False Light.” And as we collectively continue to travel down this Internet-obsessed road we’re on, expect to see more false light lawsuits hitting the courts.
What Is False Light?
False light is a privacy tort often confused with defamation. In fact, some jurisdictions think the two are so similar they’re lumped together in the eyes of the law. The premise behind false light is that private citizens have the right to “protect themselves from publicity, which puts them in a ‘false light.’”
To satisfy false light claims in the eyes of the court, most state statutes demand that:
- There exists a Publication of false light material by defendant, either online or off, against plaintiff;
- Actual Malice was involved; and
- The published material would be considered “highly offensive or embarrassing” to a “reasonable person.”
The Difference Between False Light and Defamation
As stated previously, false light and defamation are very similar. The main difference is that false light statues address damage to one’s dignity, whereas defamation is more about one’s reputation. In other words, false light deals with the impression created; defamation, on the other hand, deals with truth and falsity.
For a person to be lose a false light lawsuit, the plaintiff must prove the defendant acted in “reckless disregard,” however, a false light plaintiff does not have to show evidence of actual harm, unlike in defamation cases.
False Light Jurisdiction
False light is primarily a state-based law.
Interestingly enough, though, due to the Ninth and Fourth Amendments of the U.S. Constitution, some states deem false light protections as a constitutionally protected right and therefore outside of limitation statutes.
Common False Light Defenses
What are some common defenses for false light charges? Most people argue free speech rights and/or newsworthiness. Most false light laws exempt “newsworthy” information from persecution. As such, many a false light litigation centers around what is and is not considered newsworthy – a definition that is only sure to become murkier as citizen journalism and social networking continue to grow.
Notable False Light Cases
Jose Solano, Jr. brought a false light privacy claim again Playgirl magazine after the publication placed his picture on the cover, surrounded by headlines that seemed to suggest that Solano would appear naked in the edition. At first, he won his claim, but the decision was reversed as the appeals court ruled that Solano was a temporary public figure and that the magazine was newsworthy.
While Larry Flynt may have famously won his defamation trial against Rev. Jerry Falwell, he wasn’t as lucky with Jeanie Barton. Barton had an aquatic act that featured a swimming pig and Flynt’s magazine, Chic, published a photo of the act along side some copy only the mind of Larry Flynt could come up with. Sine the photo was a true representation of Barton’s pig act, defamation charges could not be brought, but she was awarded a false light ruling since the “essence” of the piece made the act seem sexually deviant.
In Zeron v. Diamond Broadcasting, a Seattle-based film maker sued an Oklahoma radio station after receiving threatening calls after the hosts of a morning radio program erroneously broadcast Zeron’s phone number and urged listeners to call it and give Zeron a piece of their mind.
You see, it was a few days after the Oklahoma City bombings back in 1995; someone had created an anonymous AOL account using the screen name ZZ03 and used it to promote offensive products about the horrific incident; the person who created the account used Zeron’s phone number. Zeron asked AOL to remove the material and they refused. To make a long story short, once Zeron was able to reach the station and explain the mix-up, they made an on-air correction and announcement, but not before Zeron was inundated with nasty phone calls.
Zeron did not end up winning the false light case, as he failed to prove that the station had acted with a “high degree of awareness to the claims falsity.”
Contact A False Light Lawyer
Do you feel someone has maliciously used your name or likeness in a “highly embarrassing” manner – either online or off? If so and you’d like to consult with a lawyer well-versed in false light litigation, contact Aaron Kelly.