“False light” is one of four invasion-of-privacy claims recognized under tort law in most jurisdictions of the United States. The claim exists to protect people who have been mischaracterized in a publication — that is, people who have been represented to the public in an untrue, or false, light, and are emotionally harmed as a result. The specifics of what is required to set out such a claim vary from state to state, and not all states recognize the claims. False light claims can be difficult to prove even when permitted, often because of their similarity to defamation, a personal injury tort. The breadth of the U.S. Constitution’s First Amendment, which protects free speech, also can be a hindrance to a false light claim’s success.
Along with false light, the privacy family of claims in U.S. tort law includes misappropriation, intrusion on seclusion, and publicity of private facts. States are free to set their own rules for what sorts of tort claims are recognizable, as well as the elements required to successfully set out and prove a tort-based action. The majority of states give statutory recognition to the last three privacy torts but, as of 2010, only about half recognized false light as an independent tort.
The definition of a false light claim and sample language for how a state might codify it is set our in the "Restatement (Second) of Torts", a national treatise that acts as a model law for legislators and academics. Although states word their laws independently, they all use the treatise as a guide. Use of the guide means that, although the contours may differ by state, a false or untrue light claim will universally contain a number of fixed elements.
The first basic requirement is that the alleged mischaracterization be widely publicized, meaning it must be published in such a way that it was likely seen or read by a large number of people. Second, the author or publisher must have known that the publication contained a mischaracterization, or acted with what the law calls a “reckless disregard” for the truth. Finally, the mischaracterization must be objectively offensive.
Parties frequently argue false light in tandem with defamation. Defamation is also a tort that varies in specifics depending on state law, but it is recognized in every U.S. state as a way of protecting against publication or dissemination of untrue facts that damage a person’s reputation. Defamation and false light overlap in many respects: both center on a falsity, for instance, and both involve some kind of injury to the subject of that falsity. There is much dispute among the courts with respect to whether false light can exist independently of defamation, or whether it is merely a narrower, more nuanced version of defamation.
Another challenge claims face is possible conflict with the First Amendment. The First Amendment offers broad protections for individual speech. Allegations that a published piece presents a person in a false or untrue light might not stand up against the author’s First Amendment right to speak freely.
If a court finds that a publication meets the requirements of a false light claim as defined in local law, it will award damages, order an injunction, or both. Damages are generally calculated based on the extent of the harms suffered by the misrepresented person. Most false or untrue light claims center only on emotional damages, and the spectrum of what a court considers to be an appropriate amount for this sort of injury can vary widely.
An injunction is a court order that forbids the publisher from continuing to make the offending work available, which can help stop the flow of harms from the work’s statements or insinuations. Injunction and damages are also the remedies for defamation and other privacy claims. As such, a person who is unsuccessful in proving a false light claim might still have a chance to recover losses and put an end to the damaging content’s reach by succeeding on a different theory.
