False light

In US law, false light is a tort concerning privacy that is similar to the tort of defamation. The privacy laws in the United States include a non-public person's right to protection from publicity that creates an untrue or misleading impression about them. That right is balanced against the First Amendment right of free speech.^[1]

False light differs from defamation primarily in being intended "to protect the plaintiff's mental or emotional well-being", rather than to protect a plaintiff's reputation as is the case with the tort of defamation^[2] and in being about the impression created rather than being about veracity. If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading, then a tort of false light might have occurred.^[2]

False light privacy claims often arise under the same facts as defamation cases, and therefore not all states recognize false light actions. There is a subtle difference in the way courts view the legal theories—false light cases are about damage to a person's personal feelings or dignity, whereas defamation is about damage to a person's reputation.^[3]

The specific elements of the tort of false light vary considerably, even among those jurisdictions which do recognize this tort. Generally, these elements consist of the following:

• A publication by the defendant about the plaintiff;
• made with actual malice if the plaintiff is a public figure;
• which places the plaintiff in a false light;
• and that would be highly offensive (i.e., embarrassing to reasonable persons).^[2]

Some U.S. state courts have ruled that false light lawsuits brought under their states' laws must be rewritten as defamation lawsuits; these courts generally base their opinion on the premises that a) any publication or statement giving rise to a false-light claim will also give rise to a defamation claim, such that the set of statements creating false light is necessarily, although not by definition, entirely within the set of statements constituting defamation; and b) the standard of what would be "highly offensive" or "embarrassing" to a reasonable person is much more difficult to apply than is the state's standard for defamation, such that the potential penalties for violating the former standard would have an unconstitutional or otherwise unacceptable chilling effect on the media. However, "most states do allow false light claims to be brought, even where a defamation claim would suffice."^[4] Some of the states do not recognize the false light claim due to the similarity between false light and defamation, as well as the possible impact on free speech.^[5] The states that do recognize it will not allow a plaintiff to maintain suit for both false light and defamation.^{[citation needed]}