Sportslaw Jargon: False Light

Sportslaw Jargon: 'False Light'

False light, a form of invasion of privacy, consists of publicity that places the plaintiff in a "false light" in the public eye. Closely resembling defamation, the tort of false light requires publication of an untrue statement regarding the plaintiff. The key difference is that while defamation must adversely harm one's reputation, the false light claim requires the representation to be "highly offensive to a reasonable person." Restatement of Torts (2d Edition) at 625e (1977).

To be actionable under the false light doctrine, the statement published by the defendant must be both false and highly offensive. The action for defamation and the action for invasion of privacy should be carefully distinguished. The former is to protect a person's interest in a good reputation. The latter is to protect a person's interest in being let alone and is available when there has been publicity of a kind that is highly offensive.

Plaintiffs often favor a false light cause of action because some false statements are compensable under the false light theory even though they are not sufficiently offensive to be defamatory. Often, these cases arise under fictionalized accounts of real-life people and events. Many may be offended by such fictionalized accounts of events in which they were involved as involuntary or even voluntary participants. See Prosser on Torts (1997).

To establish a prima facie case for invasion of privacy---publication by the defendant of facts placing the plaintiff in a false light--the following elements must be proved:

The publication of facts about the plaintiff by defendant places the plaintiff in a false light in the public eye.

The false light is something that would be objectionable to a reasonable person under the circumstances.

Malice on the part of the defendant where the published matter is in the public interest.

False light cases are not particularly favored by the courts. Very often, conflicts with First Amendment freedom of speech have limited their scope. The most important case, Time v. Hill, 385 U.S. 374 (1967), decided by the Supreme Court, set out the modern standard. A plaintiff is required to prove "by clear and convincing evidence" that the defendant knew of the statement's falsity or acted in reckless regard of its truth or falsity.

Using this standard, it would be difficult for an athlete who is deemed a public figure to win a case under this standard. The "public nature" of the athlete's activities give writers and broadcasters considerable leeway to report on his or her affairs.