Lurking in the shadows

For journalists used to looking out for libel, false light claims can be an unexpected — and costly — surprise.

From the Summer 2007 issue of The News Media & The Law, page 32.

By Jaci Boydston

In a disappointing ruling for journalists, the Ohio Supreme Court recently moved in line with the majority of state courts and allowed false light claims to go forward in Ohio.

Media lawyers say the existence of such a claim means that media outlets could be liable for publishing true information if it is found to convey a false impression that is highly offensive.

Further, experts say that since false light claims are judged based on the vague standard of what is “highly offensive” to a reasonable person, it is not certain that media outlets will be able to tell in advance what stories could open them up to lawsuits.

False light is an invasion of privacy claim generally described as publicizing information that puts a person in a false light before the public by making suggestions that are highly offensive. When asserting a false light claim, a plaintiff must prove that the media publicized information that, taken as a whole, creates a false impression regarding that person.

Although most states recognize false light, some have rejected it, usually because it is similar to the tort of defamation. However, unlike libel plaintiffs, false light plaintiffs need not show that their reputation was harmed by the information; they only must show that the material was “highly offensive.”

This distinction is because the injuries addressed by false light claims are the personal feelings of the plaintiffs, including the embarrassment, helplessness, and loss of control associated with being falsely characterized. In contrast, defamation addresses an individual’s damaged reputation, which often can be more clearly shown by specific examples of how the individual has been treated.

Supporters of false light argue that it vindicates substantial injuries that would not be vindicated under defamation law and gives individuals a better opportunity to control how they are presented to the public.

In recognizing false light claims, the Ohio court noted the need to protect people from the harmful uses of modern technology, saying, “thanks to the accessibility of the Internet, the barriers to generating publicity are slight, and the ethical standards regarding the acceptability of certain discourses have been lowered. As the ability to do harm has grown, so must the law’s ability to protect the innocent.”

The claim being addressed by the Ohio court involves a couple who sued their neighbor over handbills she distributed asking for tips about a potential vandalism on her property. The couple argued that the handbills placed them in a false light.

Though that case did not involve the media, news organizations are frequent targets of false light suits, which has led many media groups to warn courts about the perils of recognizing false light.

These opponents contend false light lacks certain safeguards found in defamation law, chills speech, and opens the media up to increased liability, since editors are less likely to be on the lookout for false light issues in the fact-checking process.

Lyrissa Lidsky, a professor of media law at the University of Florida Levin College of Law, noted that one of the problems with recognizing false light claims is that the standards are so vague that it encourages litigation.

“From a plaintiff’s perspective, it’s problematic when a tort is so ill-defined that it invites people to sue with cases that are probably losers ultimately,” Lidsky said. “I think that’s what this does it invites people to bring suit under this and raises the possibility that you might get that million-dollar judgment.”

When false light claims arise

Although libel and false light are very similar, there are certain circumstances that can spur only false light claims and not defamation claims, Lidsky said.

False light claims can arise in a variety of circumstances where nothing technically false is reported. Claims can be brought when a reporter embellishes details and descriptions in a story for example, by describing at length the facial expressions and general demeanor of a source the reporter did not personally interview, as a Cleveland Plain-Dealer writer did in a case that reached the U.S. Supreme Court in 1974.

Distortion can also give rise to false light claims. This can happen when photographs of individuals are packaged ambiguously with stories unrelated to them (for example, using a photograph of a person who does not have bulimia as an illustration for an article about bulimia).

A federal court in Pennsylvania let a false light claim go forward in 2000 when a newspaper ran a photograph of four suspected car thieves, one of whom was subsequently acquitted. However, LoJack Corp. continued using that newspaper article and photograph in promotional materials for its car tracking system, and the acquitted man sued, arguing that the photograph gave the false impression that he was a car thief.

C. Thomas Dienes, a professor at George Washington University Law School, said claims often arise against tabloid magazines from celebrities who argue that including their photos in the magazine creates the false impression that they consented to being included.

For example, in 2002, a federal appeals court in California (9th Cir.) allowed a false light claim to go forward against Playgirl magazine when it ran a photo of “Baywatch” actor Jose Solano on the magazine cover with headlines that Solano said gave the false impression that he appeared nude inside the magazine. (The case was settled in 2004.)

The media can also be on the losing end of a multimillion-dollar verdict if a jury agrees that a news organization has omitted or played down facts that put a truthful statement in its proper context.

In 2003, a Florida jury awarded $18 million to Joe Anderson, the owner of a road-paving company who sued over a Pensacola News Journal article that truthfully reported he had shot and killed his wife. However, the fact that an investigation determined that the death was a hunting accident was not mentioned until two sentences later, which Anderson said created a false impression that he murdered his wife.

A state appeals court threw out the judgment last year, ruling that the statute of limitations barred Anderson from suing. The court also raised questions about whether the false light claim existed in Florida, noting that the state Supreme Court had never had the occasion to determine the issue. The case is now before the state Supreme Court and media organizations have filed a friend-of-the-court brief urging the court not to recognize false light.

What journalists need to know

Because the elements of false light are fairly vague and subjective, and because a claim can be brought even when nothing technically false has been published, journalists can be caught unaware by a false light claim.

Lidsky said that since the vast majority of false light claims can also be defamation claims, checking for defamatory statements is a good way to reduce one’s vulnerability to false light claims. “You can avoid the tort of false light by avoiding defaming people,” Lidsky said.

In states that allow false light claims, public-figure plaintiffs must meet the same standard that they must meet in libel suits by showing they acted with knowledge of or reckless disregard for the false light created. Most states have also extended this standard, known as “actual malice,” to private figures who sue for false light as well.

Since this is a high standard for plaintiffs, media outlets and other false light defendants are somewhat protected from false light judgments.

However, journalists must remember that the standards used for evaluating the two torts are somewhat different. Editors may be accustomed to checking stories for possible defamation claims by evaluating whether anything published would be damaging to one’s reputation. False light claims, however, must show that material published is highly offensive to the reasonable person, an editing analysis that is somewhat different from checking for defamation.

Dienes noted that courts do not have clearly defined standards for assessing these types of claims, which offers little guidance for the media. “Anytime you get into the psychic harm type of question, you have a much greater difficulty,” Dienes said. “We’re much less familiar with how to handle that.”

Another problem with false light claims is that the assessment also must take into account the gist of the work as a whole. While it is relatively easy to determine whether specific assertions are true or false, it is more complicated to evaluate whether the work taken as a whole conveys the proper “light.” This is a problem not just because it has the tendency to chill speech, but because courts have given journalists little guidance on this issue.

Journalists also should note that truth is not necessarily a defense in a false light suit. Gregg Thomas, a media attorney in Tampa, Fla., warned that journalists must edit carefully in jurisdictions that recognize false light, since certain interpretations of a factually true story could support false light claims. Thomas represents the news organizations that filed the brief in the Anderson false light case.

“If you’ve researched a story and it’s truthful, but it happens to make people look bad, well, sometimes people should look bad,” Thomas said. “Before, truth was the paragon of virtue for us, but now, since you can file a lawsuit where truth is not a defense, we’re always looking to see if there’s some implication that a story would give off in the face of truthfulness.”