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§39.3 False Light Invasion of Privacy

The Case: West v. Media General Convergence Inc ., 53 S.W.3d 640 (Tenn. 2001).

The Basic Facts: Plaintiffs, operators of a "probation services" business, brought suit against a TV station for false light invasion of privacy after the station aired a report which implied an improper relationship between Plaintiffs and general session court judges.

The Bottom Line:

  • "Pursuant to Rule 23 of the Rules of the Supreme Court of Tennessee, this Court accepted certification of the following question from the United States District Court for the Eastern District of Tennessee:
    Do the courts of Tennessee recognize the tort of false light invasion of privacy, and if so, what are the parameters and elements of that tort?"
    53 S.W.3d at 641 (footnote omitted).
  • "We conclude that Tennessee recognizes the tort of false light invasion of privacy and that Section 652E of the [RESTATEMENT (SECOND) OF TORTS] (1977), as modified by our discussion below, is an accurate statement of the elements of this tort in Tennessee. We further conclude that the parameters of the doctrine are illustrated by the Comments to Sections 652A and 652E-I, and by this Court's decision in Memphis Publishing Co. v. Nichols, 569 S.W.2d 412 (Tenn. 1978), as it applies to the First Amendment standard for private plaintiffs and the pleading of damages." Id.
  • "This Court first encountered the issue of invasion of privacy in Langford v. Vanderbilt University, 287 S.W.2d 32 (Tenn. 1956). Assuming that invasion of privacy existed as a cause of action in Tennessee, this Court recognized the right to privacy as 'the right to be let alone; the right of a person to be free from unwarranted publicity.' Langford, 287 S.W.2d at 38.FN3 In Martin v. Senators, Inc., 418 S.W.2d 660 (Tenn. 1967), we revisited the issue of invasion of privacy, looking to the [Restatement (First) of Torts (1939)] for insight into the nature of the tort:
    A person who unreasonably and seriously interferes with another's interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other. . . . Liability exists only if the defendant's conduct was such that he should have realized that it would be offensive to persons of ordinary sensibilities. It is only where the intrusion has gone beyond the limits of decency that liability accrues.
    Martin , 418 S.W.2d at 663 (citing [Restatement (First) of Torts §867 & cmt. d (1939)]). In more recent years, the federal courts have applied the [RESTATEMENT (SECOND) OF TORTS] when analyzing the right to privacy in Tennessee. In Scarbrough v. Brown Group, Inc., the United States District Court for the Western District of Tennessee held that '[a]lthough no Tennessee state court has recognized the [Restatement (Second)] distinctions, federal courts applying Tennessee law have used these categories in analyzing invasion of privacy claims.' 935 F. Supp. 954, 963-64 (W.D. Tenn. 1996).FN4
    FN3 In Langford this Court held that a report published in a school newspaper did not invade the plaintiff's privacy because the subject matter of the article had already been made part of the public record. See also, Cox Broad. Corp. v. Cohn, 420 U.S. 469, 494-95 (1975) ('[T]he prevailing law of invasion of privacy generally recognizes that the interests in privacy fade when the information involved already appears on the public record.'); Fann v. City of Fairview, 905 S.W.2d 167 (Tenn. Ct. App. 1995).

    FN4 See also Evans v. Detlefsen, 857 F.2d 330, 338 (6th Cir. 1988) (holding that there is no invasion of privacy when arrest is supported by probable cause); Lineberry v. State Farm Fire & Casualty Co., 885 F. Supp. 1095 (M.D. Tenn. 1995); International Union v. Garner, 601 F. Supp. 187 (M.D. Tenn. 1985)."
    Id . at 643.
  • "Specifically at issue in this case is whether Tennessee recognizes the separate tort of false light invasion of privacy. Section 652E of the [RESTATEMENT (SECOND) OF TORTS (1977)] defines the tort of false light:
    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."
    Id . at 643-44.
  • "After considering the relevant authorities, we agree with the majority of jurisdictions that false light should be recognized as a distinct, actionable tort. While the law of defamation and false light invasion of privacy conceivably overlap in some ways, we conclude that the differences between the two torts warrant their separate recognition. The Supreme Court of West Virginia noted the following differences in Crump v. Beckley Newspapers, Inc.:
    In defamation law only statements that are false are actionable, truth is, almost universally, a defense. In privacy law, other than in false light cases, the facts published are true; indeed it is the very truth of the facts that creates the claimed invasion of privacy.FN5 Secondly, in defamation cases the interest sought to be protected is the objective one of reputation, either economic, political, or personal, in the outside world. In privacy cases the interest affected is the subjective one of injury to [the] inner person. Thirdly, where the issue is truth or falsity, the marketplace of ideas furnishes a forum in which the battle can be fought. In privacy cases, resort to the marketplace simply accentuates the injury.
    FN5 The facts may be true in a false light claim. However, the angle from which the facts are presented, or the omission of certain material facts, results in placing the plaintiff in a false light. ''Literal accuracy of separate statements will not render a communication 'true' where the implication of the communication as a whole was false.' . . . The question is whether [the defendant] made 'discrete presentations of information in a fashion which rendered the publication susceptible to inferences casting [the plaintiff] in a false light.' Santillo v. Reedel, 634 A.2d 264, 267 (Pa. Super. Ct. 1993) (citing Larsen v. Philadelphia Newspapers, Inc., 543 A.2d 1181 (Pa. Super. Ct. 1988)) (emphasis added). Therefore, the literal truth of the publicized facts is not a defense in a false light case.

    320 S.E.2d 70, 83 (W.Va. 1984) (quoting [Thomas Emerson, The Right of Privacy and Freedom of the Press, 14 Harv. C.R.-C.L. L. Rev. 329, 333 (1979)])."
    Id . at 645-46.
  • "The Appellant, and likewise the minority view, predict that recognition of the tort will result in unnecessary litigation, even in situations where 'positive' or laudatory characteristics are attributed to individuals. We disagree. Such needless litigation is foreclosed by Section 652E (a) of the [RESTATEMENT (SECOND) OF TORTS] which imposes liability for false light only if the publicity is highly offensive to a reasonable person. Comment c to Section 652E notes that the hypersensitive plaintiff cannot recover under a false light claim where the publicized matter attributed to the plaintiff was, even if intentionally falsified, not a seriously offensive misstatement.
    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.
    [RESTATEMENT (SECOND) OF TORTS, § 652E cmt. c (1977)]. Thus, the 'highly offensive to a reasonable person' prong of Section 652E deters needless litigation.FN7
    FN7 Illustrations provided in Section 652E of the [RESTATEMENT (SECOND) OF TORTS, (1977)], are helpful in understanding the limits of protection provided by false light. Illustration 9 reads:
    A is the pilot of an airplane flying across the Pacific. The plane develops motor trouble, and A succeeds in landing it after harrowing hours in the air. B Company broadcasts over television a dramatization of the flight, which enacts it in most respects in an accurate manner. Included in the broadcast, however, are scenes, known to B to be false, in which an actor representing A is shown as praying, reassuring passengers, and otherwise conducting himself in a fictitious manner that does not defame him or in any way reflect upon him. Whether this is an invasion of A's privacy depends on whether it is found by the jury that the scenes would be highly objectionable to a reasonable man in A's position."
    Id . at 646.
  • "Comment b to Section 652E of the [RESTATEMENT (SECOND) OF TORTS] addresses the concern that one publication may result in multiple recoveries. If, in addition to false light, a plaintiff also asserts an alternative theory of recovery under libel, 'the plaintiff can proceed upon either theory, or both, although he can have but one recovery for a single instance of publicity.' Id. (emphasis added). FN8
    FN8 Comment d to Section 652A of the [RESTATEMENT (SECOND) OF TORTS] also provides that, in instances where more than one invasion of privacy is claimed based upon a single act or series of acts, the injured party may 'have only one recovery of his damages upon one or all of the different grounds.'"
    Id . at 647.
  • "We must also disagree with the North Carolina Supreme Court that recognition of false light would destabilize current First Amendment protections of speech. In our view, the 'actual malice' standard adequately protects First Amendment rights when the plaintiff is a public official, a public figure, or the publicity is a matter of public interest. This standard was first adopted in a defamation case, New York Times Co. v. Sullivan, [376 U.S. 254 (1964)], in which the Court held that public officials may not recover damages for defamatory statements relating to their official duties unless the statement was made with actual malice - knowledge of the falsity of the statement or reckless disregard for the truth of the statement. In Time, Inc. v. Hill, [385 U.S. 374 (1967)], the Court extended the actual malice standard to alleged defamatory statements about matters of public interest.FN9 In Gertz v. Robert Welch, Inc., [418 U.S. 323 (1974)], the Court held that negligence is a sufficient constitutional standard for defamation claims asserted by a private individual about matters of private concern, but the Court has not yet decided which standard applies to false light claims. See Cantrell v. Forest City Publishing Co., [419 U.S. 245 (1974)].
    FN9 '[T]he constitutional protections for speech and press preclude the application of the New York statute to redress false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth.' Time, Inc. v. Hill, 385 U.S. at 387-88]."
    Id .
  • "We hold that actual malice is the appropriate standard for false light claims when the plaintiff is a public official or public figure, or when the claim is asserted by a private individual about a matter of public concern. We do not, however, adopt the actual malice standard for false light claims brought by private plaintiffs about matters of private concern. In Memphis Publishing Co. v. Nichols, 569 S.W.2d 412 (Tenn. 1978), this Court adopted negligence as the standard for defamation claims asserted by private individuals about matters of private concern. Our decision to adopt a simple negligence standard in private plaintiff/private matter false light claims is the result of our conclusion that private plaintiffs in false light claims deserve the same heightened protection that private plaintiffs receive in defamation cases. Therefore, when false light invasion of privacy claims are asserted by a private plaintiff regarding a matter of private concern, the plaintiff need only prove that the defendant publisher was negligent in placing the plaintiff in a false light. For all other false light claims, we believe that the actual malice standard achieves the appropriate balance between First Amendment guarantees and privacy interests." Id. at 647-48.
  • "With respect to the parameters of the tort of false light, we conclude that Sections 652F-I of the [RESTATEMENT (SECOND) OF TORTS] adequately address its limits. Sections 652F and 652G note that absolute and conditional privileges apply to the invasion of privacy torts, and we hereby affirm that such privileges previously recognized in Tennessee apply to false light claims. Damages are addressed in Section 652H of the [RESTATEMENT (SECOND) OF TORTS (1977)], which provides:
    One who has established a cause of action for invasion of his privacy is entitled to recover damages for
    1. the harm to his interest in privacy resulting from the invasion;
    2. his mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; and
    3. special damage of which the invasion is a legal cause."
    Id . at 648.
  • "Consistent with defamation, we emphasize that plaintiffs seeking to recover on false light claims must specifically plead and prove damages allegedly suffered from the invasion of their privacy. See Memphis Publishing, 569 S.W.2d at 419. As with defamation, there must be proof of actual damages. See Myers v. Pickering Firm, Inc., 959 S.W.2d 152 (Tenn. Ct. App. 1997). The plaintiff need not prove special damages or out of pocket losses necessarily, as evidence of injury to standing in the community, humiliation, or emotional distress is sufficient. 959 S.W.2d at 164." Id.
  • "In addition, for purposes of clarification, this Court adopts Section 652I of the [RESTATEMENT (SECOND) OF TORTS (1977)] which recognizes that the right to privacy is a personal right. As such, the right cannot attach to corporations or other business entities, may not be assigned to another, nor may it be asserted by a member of the individual's family, even if brought after the death of the individual. [RESTATEMENT (SECOND) OF TORTS § 652I cmt. a-c (1977)]. Therefore, only those persons who have been placed in a false light may recover for invasion of their privacy." Id.
  • "Finally, we recognize that application of different statutes of limitation for false light and defamation cases could undermine the effectiveness of limitations on defamation claims. Therefore, we hold that false light claims are subject to the statutes of limitation that apply to libel and slander, as stated in Tenn. Code Ann. §§ 28-3-103 and 28-3-104(a)(1), depending on the form of the publicity, whether in spoken or fixed form." Id.

Recent Cases: 

Miller v. State , No. M2008-01241-COA-R3-CV, 2009 WL 837888 (Tenn. Ct. App. Mar. 30, 2009) (affirming commissioner's finding that state made no false statements and no statements placing plaintiff in false light).

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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