Distinction between false light tort and defamation

10.6 American Jurisprudence identifies the following similarities and differences between defamation and the false light privacy tort:[435]

(a) Similarities

i) The matter publicised must be in fact false.

ii) The matter must be “published” or communicated to third parties.

iii) The publication must be made with some degree of fault on the part of the originating party.

(b) Differences

i) The false light cause of action is not limited to publication of defamatory statements, but may be brought for any “highly offensive” false portrayal before the public.

ii) Any publication of the subject matter to a third party may give rise to a defamation action, while the subject matter of an actionable false light privacy invasion usually is required to come to the notice of at least a substantial portion of the general public.

iii) Unlike the law of defamation which seeks to provide relief for injury to public reputation, the emphasis of the false light action, is on the subjective mental and emotional suffering, embarrassment, and outrage of the subject of depiction. For a false light invasion of privacy to be actionable, it must involve the private affairs of the subject, and cannot relate to any matter which is inherently public or of legitimate interest to the public. So a false statement about an individual might, if highly offensive to a reasonable person, be actionable as a false light invasion of privacy, even if it could not be said to be defamatory.

Is publicity placing someone in a false light a privacy concern?

10.7 The problem we have to address is whether disclosure of false information about an individual amounts to an invasion of privacy. One argument is that the individual concerned has suffered a loss of privacy because people now believe that they know more about him. If the information attracts the interest of the public, he would lose his anonymity and become the subject of other people’s attention.

10.8 The UK Consultation Paper agreed that the publication of inaccurate or misleading personal information should constitute an infringement of privacy if anonymity is a part of privacy.[436] Nonetheless the Consultation Paper doubted whether false light cases were a sufficiently distinct category of infringements to justify an express reference in legislation. It suggested that it should not be the function of the civil law to provide a means for correcting mere errors.[437]

10.9 Harry Kalven points out that there is a great deal of overlapping of defamation in false light cases. He says that the overlap with defamation might have been thought substantial enough to make an approach via privacy superfluous. He poses the following questions in response to the argument that a false light action is not limited to defamatory statements:

“If the statement is not offensive enough to the reasonable man to be defamatory, how does it become offensive enough to the reasonable man to be an invasion of privacy? Or is the point again that plaintiff’s name has been used without his consent? And if the desire is to relax somewhat the criteria of what is defamatory, would it not be more rational to do that openly and directly?”[438]

10.10 The Younger Committee considered that placing someone in a false light is an aspect of defamation rather than of privacy:

“We do not support the view of those who argue that the publication of an untruth about a person should be treated by the law as an invasion of privacy rather than under the heading of defamation. In this connection we commend the warning by Professor Harry Kalven about the way in which the ‘false light’ aspect of privacy has been used in the United States to extend the scope for actions of a defamation nature. He says that any extensions of the law of defamation should be made openly as such, but he suggests also that the restrictions on the application of the law of defamation may reflect a wise caution about permitting its extension to the mollification of outraged dignity. ... To our mind there could be a real threat to freedom of speech if the safeguards for it that have been built into the law of defamation were to be put in jeopardy by the process of subsuming defamation into a wider tort which is implied by the doctrine of ‘false light’. We believe that the concepts of defamation and of intrusion into privacy should be kept distinct from one another.”[439]

10.11 Wacks shares the same view as the Younger Committee.[440] He argues that many of the issues characterised as questions of false light may be resolved by the law of defamation and that it requires a strong justification for its claim to independence:

“[The] raison d’être of the law’s protection against gratuitous publicity is the laying bare of the plaintiff’s private life ... . In the case of false light, however, this is usually not the plaintiff’s complaint at all. He complains not about the mere fact of unwanted publicity nor about the disclosure of intimate facts, but about the fact that the world has received a misleading impression of him. This is the domain of defamation.”[441]

10.12 We have considered the following illustrations given in the American Restatement:[442]

(a) A is a taxi driver in the city of Washington. B Newspaper publishes an article on the practices of Washington taxi drivers in cheating the public on fares, and makes use of A’s photograph to illustrate the article, with the implication that he is one of the drivers who engages in these practices. A never has done so. B is subject to liability to A for both libel and invasion of privacy.

(b) A is a renowned poet. B publishes in his magazine a spurious inferior poem, signed with A’s name. Regardless of whether the poem is so bad as to subject B to liability for libel, B is subject to liability to A for invasion of privacy.

(c) A is a Democrat. B induces him to sign a petition nominating C for office. A discovers that C is a Republican and demands that B remove his name from the petition. B refuses to do so and continues public circulation of the petition, bearing A’s name. B is subject to liability to A for invasion of privacy.

(d) A is a war hero, distinguished for bravery in a famous battle. B makes and exhibits a motion picture concerning A’s life, in which he inserts a detailed narrative of a fictitious private life attributed to A, including a non-existent romance with a girl. B knows this matter to be false. Although A is not defamed by the motion picture, B is subject to liability to him for invasion of privacy.

10.13 We think that the remedy of the taxi driver and the renowned poet in examples (a) and (b) should be in defamation. It is difficult to imagine how the privacy of the driver or the poet has been invaded by the publication. In example (c), the democrat has himself to blame in making the nomination without first checking the political affiliation of the candidate. A person who makes or uses a “false instrument” would be prosecuted for forgery under the Crimes Ordinance.

10.14 A person who finds himself in the same position as the “renowned poet” in (b) may also be protected by the “moral rights” under the Copyright Ordinance (Cap 528). By virtue of sections 92 and 96 of the Ordinance, he has a right not to have his work subjected to derogatory treatment, and not to have a work falsely attributed to him as an author. An infringement of moral right is actionable as a breach of statutory duty.[443]

10.15 As regards (d), it is essential to find out what the motion picture purported to be. If it purported to be a documentary, the audience would expect that the story narrated in the film represented the real life of the hero. But if the film made it abundantly clear that the picture bore no relation to reality, no one should have cause to complain if it gave a fictional account of the hero’s life. Where the film purported to be a documentary but turned out to be a fictional account of his life, the hero may have a cause of action in defamation if the film injures his reputation.

10.16 If placing someone in a false light tort is actionable as an invasion of privacy, the making of false statements about the private life of an individual would be actionable even though the maker is not liable in defamation. This would expand the scope of the law of defamation. The law of copyright already provides a remedy where an individual’s work is subjected to derogatory treatment or where a work is falsely attributed to him as an author. The tort of malicious falsehood might also be relevant in appropriate circumstances if the plaintiff has suffered special damage.[444] We are doubtful that publicity placing someone in a false light is a problem of such significance as to merit the creation of a statutory tort. The freedom of speech might be unduly restricted if liability for the making of false statements is extended.

[431] Restatement 2d, Torts, § 652E. See R G Donaldson, “False Light Invasion of Privacy - Cognizability and Elements” 57 ALR4th 22.

[432] 62A Am Jur 2d, Privacy, § 124.
[433] Restatement 2d, Torts, § 652E, p 396.
[434] Restatement 2d, Torts, § 652E, p 395.
[435] 62A Am Jur 2d, Privacy, § 122.
[436] “[If] it is accepted that another aspect of privacy is anonymity, which is lost when attention is paid to an individual, excessive publicity about a person, even where the statement is untrue, may therefore amount to an infringement of privacy.” Above, para 5.29.
[437] Above, para 5.30. It acknowledged that the Data Protection Act 1984 is not so limited.
[438] H Kalven, “Privacy in tort law - Were Warren and Brandeis wrong?” (1966) 31 Law & Contemp Prob 326, 340.
[439] Younger Report, paras 70 - 71.
[440] R Wacks, “The Poverty of ‘Privacy’” (1980) 96 LQR 73, 84.
[441] R Wacks, The Protection of Privacy (London: Sweet & Maxwell, 1980), p 171.
[442] Restatement 2d, Torts, § 652E, 395 - 396.
[443] Section 114. Where the plaintiff’s work is subjected to derogatory treatment, the court may grant an injunction prohibiting the doing of any act unless a disclaimer is made dissociating the author from the treatment: section 114(2).
[444] An action for malicious falsehood lies in cases where a person has maliciously made a false statement to a third party respecting the plaintiff or his property as a result of which the third party is deceived and induced to act to the plaintiff’s detriment. Proof of special damage is not necessary only if the words are calculated to cause pecuniary damage to the plaintiff: see Defamation Ordinance (Cap 21), section 24.