A Ray of Hope to Eliminate False Light

In the past half-century, First Amendment lawyers have successfully convinced courts and state legislatures to make it more difficult for plaintiffs to bring defamation lawsuits. These changes have helped preserve the public debate that is vital to our democracy, particularly as the Internet has expanded platforms for free speech and enabled every individual to publish their opinions and stories.

Unfortunately, privacy law has long provided plaintiffs with an end-run around the First Amendment. Rather than filing a defamation lawsuit, plaintiffs bring claims under a privacy tort known as “false light.” In some states, it is easier to bring claims under false light than under defamation law.

But there is good news: recently, many federal and state courts have made it more difficult to bring false light claims. Although many states still allow false light claims, a number of courts have dismissed false light lawsuits, indicating that it will be more difficult for plaintiffs to file false light claims.

Defamation and false light lawsuits are very similar, but there are a few important differences:

  • Defamation claims focus on the injury to the plaintiff’s reputation, while false light claims generally involve the harm to an individual’s dignity or emotional well-being.
  • Some courts have set a lower bar for false light claims. In defamation cases, the plaintiff must demonstrate that the defendant’s statement was false. But plaintiffs in false light privacy lawsuits in some states need only demonstrate that the statement portrayed the defendant in a false light.
  • Some states limit damages for defamation claims, but these limits don’t apply to false light.

In other words, in some states, a plaintiff could bring a false light claim even if the defendant’s statement was arguably true and did not damage the plaintiff’s reputation. It is unclear why such a tort is necessary, as it largely overlaps with defamation law.

For this reason, courts in some states, such as New York, Virginia, Texas, and Florida, have refused to recognize the false light tort. As the Florida Supreme Court wrote in 2008, false light “allows the plaintiff to circumvent the strict requirements that have been adopted by statute and developed by case law to ensure the right to freedom of expression.”  But the majority of states, including California, continue to allow false light claims.

Fortunately, a number of recent court opinions have indicated  that false light plaintiffs must meet a high standard:

These opinions, and many others in the past year, indicate that courts are generally holding false light plaintiffs to a high standard.

Although these decisions are a step in the right direction, they are not enough. Courts or legislatures must finally eliminate this unnecessary cause of action. False light is an outdated and unnecessary privacy tort that enables plaintiffs to avoid the First Amendment protections that courts and legislatures have carefully crafted over the years.

photo credit: bernat... via photopin cc

Written By

Jeffrey Kosseff, CIPP/US


If you want to comment on this post, you need to login.
  • Lori Apr 10, 2014

    Very close to my heart. I hope to someday stand up for people being bullied, defamated and false light. This can be detrimental to one's reputations and/or mental well-being. Great article.


Board of Directors

See the esteemed group of leaders shaping the future of the IAPP.

Contact Us

Need someone to talk to? We’re here for you.

IAPP Staff

Looking for someone specific? Visit the staff directory.

Learn more about the IAPP»

Daily Dashboard

The day’s top stories from around the world

Privacy Perspectives

Where the real conversations in privacy happen

The Privacy Advisor

Original reporting and feature articles on the latest privacy developments

Privacy Tracker

Alerts and legal analysis of legislative trends

Privacy Tech

Exploring the technology of privacy

Canada Dashboard Digest

A roundup of the top Canadian privacy news

Europe Data Protection Digest

A roundup of the top European data protection news

Asia-Pacific Dashboard Digest

A roundup of the top privacy news from the Asia-Pacific region

IAPP Westin Research Center

Original works. Groundbreaking research. Emerging scholars.

Advertise in IAPP Publications

Find out how to get your message in front the people you want to reach. Download a media kit now.

Get more News »

Find a KnowledgeNet Chapter Near You

Network and talk privacy at IAPP KnowledgeNet meetings, taking place worldwide.

Women Leading Privacy

Events, volunteer opportunities and more designed to help you give and get career support and expand your network.

IAPP Job Board

Looking for a new challenge, or need to hire your next privacy pro? The IAPP Job Board is the answer.

Join the Privacy List

Have ideas? Need advice? Subscribe to the Privacy List. It’s crowdsourcing, with an exceptional crowd.

Find more ways to Connect »

Find a Privacy Training Class

Two-day privacy training classes are held around the world. See the complete schedule now.

Online Privacy Training

Build your knowledge. The privacy know-how you need is just a click away.

The Training Post—Can’t-Miss Training Updates

Subscribe now to get the latest alerts on training opportunities around the world.

New Web Conferences Added!

See our list of upcoming web conferences. Just log on, listen in and learn!

Train Your Staff

Get your team up to speed on privacy by bringing IAPP training to your organization.

Learn more »

CIPP Certification

The global standard for the go-to person for privacy laws, regulations and frameworks

CIPM Certification

The first and only privacy certification for professionals who manage day-to-day operations

CIPT Certification

The industry benchmark for IT professionals worldwide to validate their knowledge of privacy requirements

Certify Your Staff

Find out how you can bring the world’s only globally recognized privacy certification to a group in your organization.

Learn more about IAPP certification »

Get Close-up

Looking for tools and info on a hot topic? Our close-up pages organize it for you in one easy-to-find place.

Where's Your DPA?

Our interactive DPA locator helps you find data protection authorities and summary of law by country.

IAPP Westin Research Center

See the latest original research from the IAPP Westin fellows.

Looking for Certification Study Resources?

Find out what you need to prepare for your exams

More Resources »

GDPR Comprehensive: Registration Open

New! Intensive two-day GDPR training led by the sharpest minds in the field. It's a can't-miss event.

The Congress Is Cancelled

The IAPP Europe Data Protection Congress 2015 is cancelled. Click through to learn more.

Sponsor an Event

Increase visibility for your organization—check out sponsorship opportunities today.

Exhibit at an Event

Put your brand in front of the largest gatherings of privacy pros in the world. Learn more.

More Conferences »

Become a Member

Start taking advantage of the many IAPP member benefits today

Corporate Members

See our list of high-profile corporate members—and find out why you should become one, too

Renew Your Membership

Don’t miss out for a minute—continue accessing your benefits

Join the IAPP»