Arizona’s False Light Invasion of Privacy Tort

 

Introduction

False light is an invasion of privacy cause of action that alleges a defendant publicly attributed to a plaintiff views or attributes that the plaintiff does not have in a highly offensive and false manner.[1]

Elements

In Arizona, a defendant is liable under a cause of action for false light invasion of privacy if: 1) the defendant gave publicity to a matter concerning the plaintiff; 2) the defendant’s publicity placed the plaintiff before the public in a false light; 3) the false light representation of the plaintiff would be highly offensive to a reasonable person; and 4) the defendant acted with actual malice as to the falsity of the publicized matter and the false light in which the plaintiff was placed.[2]

“Publicity” means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded substantially certain to become one of public knowledge.[3]

The publicity must be of a matter concerning the plaintiff—that is, must be readily recognized as implying something about the plaintiff.[4]

The publicity at issue must present the plaintiff in a false light. A false light cause of action may arise when something untrue has been published about an individual, or when the publication of true information creates a false implication about the individual.[5] In the event that the publication of true information creates a false implication, the false innuendo created by the highly offensive presentation of a true fact constitutes the injury.[6]

Arizona has adopted the Restatement of Torts standardized definition of false light. However, the last element of this definition is currently at issue at the U.S. Supreme Court level, and it has not yet been decided whether there are any circumstances under which recovery can be obtained under this cause of action if the actor did not act with malice (knowledge or reckless disregard), but rather negligence.[7] Until this issue is settled at a higher level, Arizona courts will decline to settle the issue with respect to private individuals[8] and will continue to apply the actual malice standard to false light invasion of privacy claims.[9]

False light applies only when the defendant acts knowing (or recklessly disregarding) that the plaintiff would be justified in the eyes of reasonable people in the community in feeling seriously offended and injured by the publicity.[10]

Burden of Proof

With the exception of the last element that currently requires actual malice, there is no heightened burden of proof—the plaintiff bears the burden of proving each element by a preponderance of the evidence.

Because it remains unsettled whether the Plaintiff must prove actual malice to succeed, there is some doubt about the plaintiff’s burden of proof regarding the defendant’s level of fault. If actual malice needs to be proven, the Plaintiff would have to prove it with clear and convincing evidence.[11]

Defenses

A few circumstances will allow a defendant to prevail against a plaintiff’s claim of false light, regardless of the plaintiff’s proof of the elements of the cause of action.

First, where the Plaintiff has become a “public character,” the right of privacy does not exist.[12] Similarly, privacy rights are “absent or limited” regarding persons “in whom the public has a rightful interest, or where the information would be of public benefit.”[13] There is a two year statute of limitations on false light invasion of privacy claims.[14] Finally, false light invasion of privacy claims do not survive death.[15]

Damages

The plaintiff need not prove special or pecuniary damages to recover substantially under a false light invasion of privacy claim.[16]

Notes:

[1] Black’s Law Dictionary 719 (10th ed. 2014); Restatement (Second) Torts § 652E (1979). See also Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 341, 783 P.2d 781, 787 (1989) (“Privacy … does not protect reputation but protects mental and emotional interests…The remedy is available 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…).

[2] Sarah E. Selzer, Peter R. Wand, Arizona Common Law Causes of Action 43 (2011).

[3] “It is not an invasion of the right of privacy… to communicate a fact concerning the plaintiff’s private life to a single person or even to a small group of persons. On the other hand, any publication in a newspaper or magazine, even of small circulation… or statement made in an address to a large audience, is sufficient.” Hart v. Seven Resorts Inc., 190 Ariz. 272, 273, 280, 947 P.2d 846, 847, 854 (App. Div. 1, 1997) (holding that the tort of false light was not proven because plaintiffs did not allege publication by the defendant).

[4] Reynolds v. Reynolds, 231 Ariz. 313, 318, 294 P.3d 151, 156 (Ct. App. 2013) (holding that an article could not fairly be read as implying that the plaintiffs were responsible for their mother’s asserted lack of an end-of-life plan, and therefore did not place the plaintiffs before the public in a false light).

[5] Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 341, 783 P.2d 781, 787 (1989).

[6] Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 341, 783 P.2d 781, 787 (1989).

[7]  Restatement (Second) Torts § 652E cmt. d (1979) states:

In the case of Time, Inc. v. Hill (1967) 385 U.S. 534, involving a magazine pictorial treatment of a play based upon a real episode, which implied that certain fictitious incidents in the play transpired with the real life parties, the Supreme Court held that the [actual malice] rule of New York Times Co. v. Sullivan also applies to the false-light cases covered by [the false light cause of action]. The full extent of the authority of [Time, Inc. v. Hill], however, is presently in some doubt. Although the Supreme Court had extended the [actual malice] rule of New York Times Co. v. Sullivan in defamation cases beyond public officials and public figures to all ‘matters of public or general interest,’ by a plurality opinion in Rosenbloom v. Metromedia, Inc., (1970) 403 U.S. 29, this position was subsequently repudiated in Gertz v. Robert Welch, Inc., (1974) 418 U.S. 323, which restricted the knowledge-or-reckless-disregard rule again to public officials and public figures, but held that in other cases the plaintiff must show that the defendant was at fault, at least to the extent of being negligent, regarding the truth or falsity of the statement. (See § 580B, where the matter is discussed in detail). The effect of the Gertz decision upon the holding in Time, Inc. v. Hill has thus been left in a state of uncertainty. In Cantrell v. Forest City Pub. Co. (1974) 419 U.S. 425, the court found that the defendant was shown to have acted in reckless disregard as to the truth or falsity of the statement, and it consciously abstained from indicating the present authority of Time v. Hill. Pending further enlightenment from the Supreme Court, therefore, this Section provides that liability for invasion of privacy for placing the plaintiff in a false light may exist if the defendant acted with knowledge of the falsity of the statement or in reckless disregard as to truth or falsity. The Caveat [included in the Restatement] leaves open the question of whether there may be liability based on a showing of negligence as to truth or falsity. If Time v. Hill is modified along the lines of Gertz v. Robert Welch, then the reckless-disregard rule would apparently apply if the plaintiff is a public official or public figure and the negligence rule will apply to other plaintiffs. If Time v. Hill remains in full force and effect because the injury is not so serious when the statement is not defamatory, the black letter provision will be fully controlling.

[8] Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 343, 783 P.2d 781, 789 n. 6 (1989).

[9] Restatement (Second) Torts § 652E cmt. d (1979). See, e.g, Hart v. Seven Resorts Inc., 190 Ariz. 272, 280, 947 P.2d 846, 854 (App. Div. 1, 1997) (“The tort is established if the defendant knowingly or recklessly published false information or innuendo about the plaintiff that a reasonable person would find highly offensive”).

[10] Restatement (Second) Torts § 652E cmt. a (1979) states:

Complete and perfect accuracy in published reports concerning any individual is seldom attainable by any reasonable effort, and most minor errors, such as a wrong address for his home, or a mistake in the date when he entered his employment or similar unimportant details of his career, would not in the absence of special circumstances give any serious offense to a reasonable person. The plaintiff’s privacy is not invaded when the unimportant false statements are made, even when they are made deliberately. It is only when there is such a major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position, that there is a cause of action for [false light] invasion of privacy.

[11] Meador v. New Times, 1995 U.S. Dist. LEXIS 11201, 11-14 (D. Ariz. Aug. 2, 1995) (citing New York Times v. Sullivan, 376 U.S. 254 (1964)).

[12] Meador v. New Times, 1995 U.S. Dist. LEXIS 11201, 11-14 (D. Ariz. Aug. 2, 1995) (citing Reed v. Real Detective Publishing Co., 63 Ariz. 294, 162 P.2d 133, 138 (Ariz. 1945)); Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 343, 783 P.2d 781, 789 (1989) (“There can be no false light invasion of privacy action for matters involving official acts or duties of public officers. Consequently … a plaintiff cannot sue for false light invasion of privacy if he or she is a public official and the publication relates to performance of his or her public life or duties”).

[13] Meador v. New Times, 1995 U.S. Dist. LEXIS 11201, 11-14 (D. Ariz. Aug. 2, 1995) (citing Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 343, 783 P.2d 781, 789 (1989).

[14] Hansen v. Stoll, 130 Ariz. 454, 460, 636 P.2d 1236, 1242 (App. Div. 1, 1981) (“Since invasion of privacy involves personal injury … and sounds mainly in tort, we hold that it is governed by the two-year limitation of A.R.S. [§] 12-542”).

[15] A.R.S. § 14-3110.

[16] Reed v. Real Detective Publishing Co., 63 Ariz. 294, 305, 162 P.2d 133, 139 (1945) (“[S]pecial damages need not be charged or proven, and if the proof discloses a wrongful invasion of the right of privacy, substantial damages for mental anguish alone may be recovered”).

By Katelynn Merkin, HopkinsWay PLLC. | © HopkinsWay PLLC 2014. All rights reserved.

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