Colorado Put The Kibosh on the False Light Tort
Unlike Arizona, Colorado does not recognize the false light invasion of privacy tort. See Denver Publ. Co. v. Bueno, 54 P.3d 893, 31 Media L. Rep. 1137 (Colo. 2002). HopkinsWay agrees with former Chief Justice Mary J. Mullarkey’s, Justice Alex J. Martinez’s, and Justice Nancy E. Rice’s dissent in Bueno: “the majority opinion fails to sufficiently justify its decision to eliminate the tort of false light invasion of privacy from this jurisdiction.” Id., 54 P.3d at 904. The majority wrote:
The primary objection courts level at false light is that it substantially overlaps with defamation, both in conduct alleged and interests protected. Additionally, to the extent it does differ from defamation, its parameters remain largely undefined. As a result, legal scholars are concerned that such an amorphous tort risks chilling fundamental First Amendment freedoms.
Id., 54 P.3d at 898.
Explaining its reason for declining to recognize the false light tort, the majority wrote:
False statements that a plaintiff finds “highly offensive” will generally either portray that plaintiff negatively or attack his conduct or character. At the same time, publicized statements that are disparaging and false satisfy the elements of defamation. Thus, the same publications that defame are likely to offend, and publications that offend are likely to defame.
Id., 54 P.3d at 902.
To create liability for defamation there must be: (a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.
Explaining the false light tort, the Restatement (Second) of Torts § 652A states:
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
Colorado Law Leaves Some False Light Victims Remediless
Since Colorado does not recognize the tort, Colorado residents must rely on esoteric versions of the defamation tort, such as defamation by insinuation, defamation by implication, or defamation by omission, to hold individuals or media companies accountable for publishing statements that portray them in a false light. Being forced to rely on these esoteric theories of defamation discourages plaintiffs from suing media companies because there is a greater risk that trial court judges who are unfamiliar with the subtleties of defamation law will dismiss their defamation claims and order them to pay their opponents’ attorneys’ fees and costs. What the majority in Bueno failed to recognize is that an individual or media company can portray someone in a false light in a way that a plaintiff and people who know the facts would find offensive even if the story the media published were not on its face derogatory.
For example, if a media company willing to cut corners to sell more papers or attract more advertisers published a popular but misleading story about a war veteran that alleged his courageous wartime acts saved the lives of several of his fellow soldiers, that allegation, if false, could give rise to a viable false light invasion of privacy claim but not a viable defamation claim. The alleged hero who was the subject of the story would know the truth. If he knew his acts did not save the lives of his fellow soldiers he would also know that the story’s allegations portrayed him in a false light and arguably marginalized his fellow soldiers’ courage during battle. It is easy to see how this type of false portrayal could cause an honorable veteran soldier severe emotional distress. To defend his honor and the honor of his fellow soldiers, some of whom might have died in battle to save his life, he might want to sue the media company that published the article. That veteran’s false light claim would likely be dismissed and he would likely be ordered to pay the defendant’s attorneys’ fees and costs under Colorado’s current law.
We Disagree with the Colorado Supreme Court’s Ruling in Bueno
Our legal opinion is that there are more than enough First Amendment protections for competent and ethical journalists so that Colorado’s decision to recognize the false light tort will not have a chilling effect on honest media. It will, however, have a chilling effect on the sort of deceptive and sloppy journalism that can cause Colorado’s residents and their loved ones substantial emotional distress when it leads to publications that portray people in an offensive and false light.
By Ed Hopkins, HopkinsWay PLLC. | © HopkinsWay PLLC 2014. All rights reserved.