False Light Invasion of Privacy

Dec 21st, 2012
Topics: False Light Invasion of Privacy, General Blog

A plaintiff in New Mexico who has been given publicity casting him/her in a false light may have a cause of action against a defendant, even if no defamation occurred. Below, the tort of false light invasion of privacy is examined.

To state a claim for false light invasion of privacy, the plaintiff must prove: (1) the defendant(s) gave publicity to a matter placing the plaintiff before the public in a false light; (2) the false light would be highly offensive to reasonable persons under the circumstances; and (3) the defendants 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. See Hussain v. Palmer Communs., 60 Fed. Appx. 747, 752 (10^th Cir. 2003) (“Hussain”).

Courts may determine, as a matter of law, whether a defendant has placed a plaintiff in a light which would be “highly offensive” to a reasonable person under the circumstances. See comment c to the Restatement (Second) of Torts § 652E. In other words, the tort applies when the defendant knows the plaintiff, as a reasonable person, would be justified in the eyes of the community in feeling seriously offended and aggrieved by the publicity. See Hussain, 60 Fed. Appx. at 752.

False light invasion of privacy causes of action are often similar to defamation claims. See Moore v. Sun Publishing Corp., 118 N.M. 375, 383-384 (N.M. Ct. App. 1994) (“Moore”). Though the torts are similar, a false light invasion of privacy cause of action does not require the plaintiff be defamed. See Moore, 118 N.M. at 383-384. Instead, if a plaintiff is given unreasonable and highly objectionable publicity that attributes to him/her characteristics, conduct or beliefs that place him/her before the public in a false position, a viable cause of action exists. See Restatement (Second) of Torts § 652E cmt. b, at 395.

Awards in false light invasion of privacy lawsuits can be substantial. See Nelson v. Phoenix Resort Corp.,888 P.2d 1375, 1380 (Ariz. Ct. App. 1994) ($358,318.00 verdict for plaintiff’s false light claims); Wal-Mart Stores v. Lee, 74 S.W.3d 634, 660 (Ark. 2002) (Court upheld $ 1,651,000.00 verdict on plaintiff’s false light, invasion of privacy, and defamation claims for defendant employer’s portraying plaintiff as a thief.); Duncan v. Peterson, 947 N.E.2d 305, 319 (Ill. App. Ct. 2d Dist. 2010) (affirming $276,306.00 verdict for defendant church portraying plaintiff former minister as an adulterer and alcoholic.).

In short, a prospective plaintiff may allege a false light invasion claim alongside a defamation claim, or may allege a false light invasion claim as a sole cause of action when a defamation claim does not exist.