A Negative Light

The right of privacy is generally divided into three categories: the right to be left alone, embarrassing disclosures, and false light invasion. Commercial use of the private information is not required. False light invasion of privacy occurs when publicity places a person in a false light before the public, such as the use of a person's name or picture without consent, in the form of a major misrepresentation that would give offense to a reasonable person.

Section 652E of the Restatement (Second) of Torts defines the traditional false light claim as:

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 his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) 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.

Presently, at least 22 states and the District of Columbia have adopted the tort through either case decision or statute, relying on the Restatement (Second) of Torts 652E as authority. The states where the claim appears to be viable are Arizona, Arkansas, Connecticut, District of Columbia, Idaho, Illinois, Iowa, Kansas, Maine, Maryland, Mississippi, Nebraska, New Jersey, New York, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Utah, Washington, West Virginia, and Wisconsin. Other states that also appear to support a false light claim (through intermediate court decisions) are Alabama, Georgia, Indiana, Kentucky, Louisiana, Massachusetts, Missouri, Montana, New Hampshire, Tennessee, and Utah.

In recent years several high courts have begun to move away from privacy torts in favor of the time-tested claims of defamation. Several states have refused to adopt the false light tort, among them South Carolina and Ohio. The Florida Supreme Court recently joined this group when it ruled that false light invasion of privacy is not a valid cause of action in Florida, opting instead for a new claim titled “defamation by implication.” Rapp v. Jews for Jesus, 997 So.2d 1098 (Fla. Sup. Ct. 2008).

The rationales commonly supporting a court's refusal to recognize false light invasion of privacy are that: 1) the protection provided by false light either duplicates or overlaps the interests already protected by the defamation torts of slander and libel; 2) to the extent it would allow recovery beyond that permitted for libel or slander, false light would tend to exacerbate the tension between the First Amendment and these cases; and 3) it would require courts to consider two claims for the same relief, which, if not identical, at least would not differ significantly.

The Rapp v. Jews for Jesus Case

The Florida case arose when Jews for Jesus published a newsletter account by a man who had visited his ailing father and the father's wife, the man's stepmother. The account read:

I had a chance to visit with my father in Southern Florida before my Passover tour. He has been ill for sometime and I was afraid that I may not have another chance to be with him. I had been witnessing to him on the telephone for the past few months. He would listen and allow me to pray for him, but that was about all. On this visit, whenever I talked to my father, my stepmother, Edie (also Jewish), was always close by, listening quietly. Finally, one morning Edie began to ask me questions about Jesus. I explained how G-d [sic] gave us Y'Shua (Jesus) as the final sacrifice for our atonement, and showed her the parallels with the Passover Lamb. She began to cry, and when I asked her if she would like to ask G-d for forgiveness for her sins and receive Y'Shua she said yes! My stepmother repeated the sinner's prayer with me ' praise G-d! Pray for Edie's faith to grow and be strengthened. And please pray for my father Marty's salvation.

The stepmother, claiming that this publication placed her in a false light regarding her religious beliefs, filed suit against Jews for Jesus. She also asserted claims for defamation and intentional infliction of emotional distress. The trial court dismissed her complaint, as well as two amended complaints. When she appealed, the Florida Fourth District Court of Appeal rejected the defamation claim but asked the Florida Supreme Court to answer the question of whether Florida recognized false light invasion of privacy.

The Florida court discussed two concerns raised by other courts that have rejected the tort of false light: 1) it is largely duplicative of defamation, both in the conduct alleged and the interests protected, and creates the potential for confusion because many of its parameters, in contrast to defamation, have yet to be defined; and 2) without many of the First Amendment protections attendant to defamation, it has the potential to chill speech without any appreciable benefit to society.

First, the Supreme Court noted that defamation law already encompasses claims that would fall under the definition of false light, such as “the concept that literally true statements can be defamatory where they create a false impression.” The court referred to this as “defamation by implication” and cited several Florida opinions that have discussed that tort.

The court went on to discuss the different standards applicable to the tort of false light versus defamation, noting that “it is not ' necessary to the action for invasion of privacy that the plaintiff be defamed. It is enough that he is given unreasonable and highly objectionable publicity that attributes to him characteristics, conduct or beliefs that are false, and so is placed before the public in a false position ' [where] the statement is highly offensive to a reasonable person.” In contrast, “a defamatory statement is one that tends to harm the reputation of another, by lowering him or her in the estimation of the community or, more broadly stated, one that exposes a plaintiff to hatred, ridicule, or contempt or injures his business or reputation or occupation.”

For the court, the critical issue was that false light is defined in subjective terms while defamation is defined more objectively. The court also had First Amendment concerns, in that the false light “highly offensive to the reasonable person” standard raised a potential chilling effect on free speech because liability depended too much on the subjective concerns of the plaintiff. Although other states solved that problem by extending defamation protections to false light claims, the court rejected that suggestion as one that should be left to the Florida legislature. In a parting shot, the court also noted that no case had been identified where a claim based solely on false light was upheld, signaling to the court that the tort was irrelevant.

Finally, the court held that the applicable standard in defamation cases is the Restatement standard that the defamatory statement prejudices the plaintiff in the eyes of a “substantial and respectable minority” of the community. Thus, future plaintiffs in Florida who would normally claim false light invasion of privacy must instead plead a claim for implied defamation and meet the applicable standard for the communication at issue.

Critics of the Florida Supreme Court's decision to abandon false light have noted that in defamation law, the interest sought to be protected is the objective one of reputation, either economic, political, or personal, whereas in privacy cases, the interest affected is the subjective one of injury to the person's right to be let alone. Further, where the issue is truth or falsity, the marketplace of ideas provides a forum where the answer can be found, while in privacy cases, resort to the marketplace merely accentuates the injury.

There is authority for the proposition that while there are distinguishable differences between the torts of defamation and false light invasion of privacy, where the false light action is based on a matter that in fact sounds in defamation and defamation is pleaded as a “companion” cause of action in a separate count, the action should be treated solely as one for defamation.

Conclusion

Whether Florida's view will be adopted by other states remains to be seen. At least one court in Missouri ruling on a claim of false light since the decision in Rapp has refused to go along with the Florida Supreme Court's view. Meanwhile, practitioners in states where the highest court has yet to rule on the issue, or a statute does not provide the rule, would be wise to tailor their allegations to conform to either defamation by implication or false light (if possible) in order to withstand a motion to dismiss.

Joel B. Rothman is Board Certified in Intellectual Property Law and a partner in the West Palm Beach office of Arnstein & Lehr LLP. He can be reached at 561-650-8480 or [email protected]. Thanks to law clerk Eric Seidmon for research
assistance with this article.

The right of privacy is generally divided into three categories: the right to be left alone, embarrassing disclosures, and false light invasion. Commercial use of the private information is not required. False light invasion of privacy occurs when publicity places a person in a false light before the public, such as the use of a person's name or picture without consent, in the form of a major misrepresentation that would give offense to a reasonable person.

Section 652E of the Restatement (Second) of Torts defines the traditional false light claim as:

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 his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) 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.

Presently, at least 22 states and the District of Columbia have adopted the tort through either case decision or statute, relying on the Restatement (Second) of Torts 652E as authority. The states where the claim appears to be viable are Arizona, Arkansas, Connecticut, District of Columbia, Idaho, Illinois, Iowa, Kansas, Maine, Maryland, Mississippi, Nebraska, New Jersey, New York, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Utah, Washington, West Virginia, and Wisconsin. Other states that also appear to support a false light claim (through intermediate court decisions) are Alabama, Georgia, Indiana, Kentucky, Louisiana, Massachusetts, Missouri, Montana, New Hampshire, Tennessee, and Utah.

In recent years several high courts have begun to move away from privacy torts in favor of the time-tested claims of defamation. Several states have refused to adopt the false light tort, among them South Carolina and Ohio. The Florida Supreme Court recently joined this group when it ruled that false light invasion of privacy is not a valid cause of action in Florida, opting instead for a new claim titled “defamation by implication.” Rapp v. Jews for Jesus , 997 So.2d 1098 (Fla. Sup. Ct. 2008).

The rationales commonly supporting a court's refusal to recognize false light invasion of privacy are that: 1) the protection provided by false light either duplicates or overlaps the interests already protected by the defamation torts of slander and libel; 2) to the extent it would allow recovery beyond that permitted for libel or slander, false light would tend to exacerbate the tension between the First Amendment and these cases; and 3) it would require courts to consider two claims for the same relief, which, if not identical, at least would not differ significantly.

The Rapp v. Jews for Jesus Case

The Florida case arose when Jews for Jesus published a newsletter account by a man who had visited his ailing father and the father's wife, the man's stepmother. The account read:

I had a chance to visit with my father in Southern Florida before my Passover tour. He has been ill for sometime and I was afraid that I may not have another chance to be with him. I had been witnessing to him on the telephone for the past few months. He would listen and allow me to pray for him, but that was about all. On this visit, whenever I talked to my father, my stepmother, Edie (also Jewish), was always close by, listening quietly. Finally, one morning Edie began to ask me questions about Jesus. I explained how G-d [sic] gave us Y'Shua (Jesus) as the final sacrifice for our atonement, and showed her the parallels with the Passover Lamb. She began to cry, and when I asked her if she would like to ask G-d for forgiveness for her sins and receive Y'Shua she said yes! My stepmother repeated the sinner's prayer with me ' praise G-d! Pray for Edie's faith to grow and be strengthened. And please pray for my father Marty's salvation.

The stepmother, claiming that this publication placed her in a false light regarding her religious beliefs, filed suit against Jews for Jesus. She also asserted claims for defamation and intentional infliction of emotional distress. The trial court dismissed her complaint, as well as two amended complaints. When she appealed, the Florida Fourth District Court of Appeal rejected the defamation claim but asked the Florida Supreme Court to answer the question of whether Florida recognized false light invasion of privacy.

The Florida court discussed two concerns raised by other courts that have rejected the tort of false light: 1) it is largely duplicative of defamation, both in the conduct alleged and the interests protected, and creates the potential for confusion because many of its parameters, in contrast to defamation, have yet to be defined; and 2) without many of the First Amendment protections attendant to defamation, it has the potential to chill speech without any appreciable benefit to society.

First, the Supreme Court noted that defamation law already encompasses claims that would fall under the definition of false light, such as “the concept that literally true statements can be defamatory where they create a false impression.” The court referred to this as “defamation by implication” and cited several Florida opinions that have discussed that tort.

The court went on to discuss the different standards applicable to the tort of false light versus defamation, noting that “it is not ' necessary to the action for invasion of privacy that the plaintiff be defamed. It is enough that he is given unreasonable and highly objectionable publicity that attributes to him characteristics, conduct or beliefs that are false, and so is placed before the public in a false position ' [where] the statement is highly offensive to a reasonable person.” In contrast, “a defamatory statement is one that tends to harm the reputation of another, by lowering him or her in the estimation of the community or, more broadly stated, one that exposes a plaintiff to hatred, ridicule, or contempt or injures his business or reputation or occupation.”

For the court, the critical issue was that false light is defined in subjective terms while defamation is defined more objectively. The court also had First Amendment concerns, in that the false light “highly offensive to the reasonable person” standard raised a potential chilling effect on free speech because liability depended too much on the subjective concerns of the plaintiff. Although other states solved that problem by extending defamation protections to false light claims, the court rejected that suggestion as one that should be left to the Florida legislature. In a parting shot, the court also noted that no case had been identified where a claim based solely on false light was upheld, signaling to the court that the tort was irrelevant.

Finally, the court held that the applicable standard in defamation cases is the Restatement standard that the defamatory statement prejudices the plaintiff in the eyes of a “substantial and respectable minority” of the community. Thus, future plaintiffs in Florida who would normally claim false light invasion of privacy must instead plead a claim for implied defamation and meet the applicable standard for the communication at issue.

Critics of the Florida Supreme Court's decision to abandon false light have noted that in defamation law, the interest sought to be protected is the objective one of reputation, either economic, political, or personal, whereas in privacy cases, the interest affected is the subjective one of injury to the person's right to be let alone. Further, where the issue is truth or falsity, the marketplace of ideas provides a forum where the answer can be found, while in privacy cases, resort to the marketplace merely accentuates the injury.

There is authority for the proposition that while there are distinguishable differences between the torts of defamation and false light invasion of privacy, where the false light action is based on a matter that in fact sounds in defamation and defamation is pleaded as a “companion” cause of action in a separate count, the action should be treated solely as one for defamation.

Conclusion

Whether Florida's view will be adopted by other states remains to be seen. At least one court in Missouri ruling on a claim of false light since the decision in Rapp has refused to go along with the Florida Supreme Court's view. Meanwhile, practitioners in states where the highest court has yet to rule on the issue, or a statute does not provide the rule, would be wise to tailor their allegations to conform to either defamation by implication or false light (if possible) in order to withstand a motion to dismiss.

Joel B. Rothman is Board Certified in Intellectual Property Law and a partner in the West Palm Beach office of Arnstein & Lehr LLP. He can be reached at 561-650-8480 or [email protected]. Thanks to law clerk Eric Seidmon for research
assistance with this article.