On the Casting of False Lights....of Racism!

from FindLaw

In today's content-rich, digitally networked world, public figures or people involved in newsworthy events aren't the only ones at risk of reputational harm. It has become a relatively simple matter to comment, share, and distribute personal information and media. Unfortunately, people may -- either intentionally or unintentionally -- share information about you that's false or misleading.

If you suspect that false or misleading information about you has been shared or otherwise publicized, then you may have a claim under the law for either defamation or false light.

It's important that you understand the differences between the two 'reputational harm' causes of action, defamation vs. false light, so that you can better assess the strength and scope of your claim moving forward.

Defamation and False Light: Comparing the Elements

Defamation and false light are similar causes of action that hinge on the disclosure of false or misleading information. Because there's substantial overlap between the two causes of action, many states -- such as Colorado -- don't recognize false light as a separate cause of action. When determining the strength and scope of your claim, you should first determine the applicable state law and whether you have access to a false light cause of action.

To start with, let's take a look at the basic causes of action for both defamation and false light.

The Elements of Defamation

For defamation, the plaintiff must prove the following elements:

1.The defendant made a statement about the plaintiff to another.
2.The statement was injurious to the plaintiff's reputation.
3.The statement was false.
4.If the plaintiff is a public figure, or was involved in some newsworthy event or some other event that engaged the public interest, then the defendant must have made the false statement intentionally or with reckless disregard of the plaintiff's rights.
5.There are no applicable privileges.

Defendants are generally placed at significant advantage as compared to plaintiffs in defamation actions.

Truth is a complete defense, no matter how injurious the statement may have been. Essentially, a defendant can publically make any statement about the plaintiff, no matter how reputationally damaging or embarrassing, so long as that statement is truthful. If a plaintiff cheated on his wife, for example, then the plaintiff can't effectively sue a defendant for having published that fact in a magazine or newspaper.

Defendants may also claim that their public statement was a matter of pure opinion, which will exempt them from the action. If that fails, they may seek to have the court recognize the plaintiff as a limited public figure so that the higher reckless disregard standard kicks in. Further, many states, including California, have instituted anti-SLAPP legislation that gives considerable discretion to superior courts to determine whether a defamation action should fail before the facts ever go to a jury trial.

The Elements of False Light

In a false light claim, the plaintiff must prove the following elements:

1.The defendant published some information about the plaintiff.
2.The information must portray the plaintiff in a false or misleading light.
3.The information is highly offensive or embarrassing to a reasonable person of ordinary sensibilities.
4.The defendant must have published the information with reckless disregard as to its offensiveness.

A false light claim is usually easier to bring than a defamation claim.

Take, for example, a newspaper article about the issue of child molestation in certain churches. If the editor includes a photograph of an innocent priest who has not been accused of or otherwise associated with child molestation, the newspaper may be liable for false light, since the inclusion of the photograph implies that the priest is involved in child molestation. In a defamation action, the newspaper-defendant would simply assert that no statement was actually made about the photographed priest and child molestation.

As you can you probably tell, false light is a powerful cause of action for a plaintiff because it allows for a holistic assessment of published information and the context in which such information is placed. A great deal of potentially injurious commentary merely implicates or speculates, but doesn't go so far as to make a direct, false statement.

The Differences Between Defamation and False Light

Where defamation is meant to protect a person from injury to their reputation, false light is meant to protect a person from the offense or embarrassment that arises from a misleading or untrue implication. This core difference leads to practical differences that affect how the parties approach an issue of reputational harm.

A defamatory statement need only be made to one other person, but a false light disclosure must be made to a large enough group of people to be considered a 'public' disclosure.

Defamation is meant to protect reputation. A non-offensive statement about a person can harm their reputation. As such, defamation does not require that the statement be offensive or embarrassing. False light, on the other hand, demands that the supposed implication be offensive or embarrassing.

False light demands that the defendant has made the implication or misleading statement/disclosure with reckless disregard. This is a high standard. Defamation, on the other hand, only demands the reckless disregard standard if the plaintiff is a public figure or limited public figure.

Truth is a complete defense to defamation. False light is affected by the truth defense differently. A defendant's true statement about a plaintiff may not be used to save the defendant if the implication is false. However, if the defendant's implication about the plaintiff is true, then it will serve as a defense to a false light claim.

Involved in a Defamation or False Light Suit? Speak with a Lawyer

Having your reputation impuned or questioned is unpleasant for anyone, but can also cause real and lasting harm. Whether you were defamed or cast in a false light -- or sued for such an act -- the outcome of the case will depend on not only the facts in the case but also how those facts are represented. Consider speaking with a defamation lawyer to learn more