Arizona recognizes the tort of “false light” as one of the four “invasion of privacy” torts. Plaintiffs can sue for false light when offensive and false information or innuendo about them is spread publicly. The specific elements a plaintiff must prove are listed below under Elements of a False Light Claim.
While false light in Arizona is similar to defamation, there are several differences.
- First, statements need to be publicized more widely for false light than defamation. See Hart v. Seven Resorts, Inc., 947 P.2d 846, 854 (1997) (“‘Publicity’ as it is used [for false light] differs from ‘publication’ [for defamation purposes].”) (second alteration in original) (quoting Restatement (Second) of Torts § 652D).
- Second, defamation requires harm to reputation or other social consequences, while false light does not. Godbehere v. Phoenix Newspapers, Inc., 783 P.2d 781, 787 (1989) (“Privacy, [unlike defamation], does not protect reputation but protects mental and emotional interests. . . . Under this theory, a plaintiff may recover even in the absence of reputational damage... .”)
- Third, material must be offensive for false light, id. at 786, while it need not be for defamation.
- Fourth, false light in Arizona protects against not only false statements, but also false implications and innuendo. Id. at 787.
Elements of a False Light Claim
Arizona has adopted the formulation of the tort of false light found in Restatement (Second) of Torts § 652E. Godbehere, 783 P.2d at 786‑87. To establish a false light claim, a plaintiff must show that the defendant (1) made statements about the plaintiff (2) to the public that are (3) “highly offensive to a reasonable person” and (4) the defendant “had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the [plaintiff] would be placed.” Hart, 947 P.2d at 854. Each of these requirements is described in greater detail below.
Identification of Plaintiff
CMLP is not aware of any Arizona case law discussing how specifically a statement must identify the plaintiff to create an actionable claim for false light.
False light, as well as the other invasion of privacy torts recognized in Arizona “‘depends upon publicity given to the private life of the individual.’” Hart, 947 P.2d at 854 (quoting Restatement (Second) of Torts § 652D). To make out a claim for false light, a plaintiff must show 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 public knowledge.’” Id., (quoting Restatement (Second) of Torts § 652D). The form of communication (oral, written, etc.) does not matter as long as the communication “‘reaches, or is sure to reach, the public.’” Id. (quoting Restatement (Second) of Torts § 652D).
To prove publicity, the plaintiff must provide more than an “unsubstantiated allegation” that information has been communicated publicly. Id. at 855. In Hart, the court provided a list of illustrative examples of “the kinds of evidence” a plaintiff might use to help prove publication, including “affidavits from persons in the community who had heard the rumors; affidavits by [the plaintiff] denying that they discussed [the information], thereby starting the rumors themselves; or any direct allegation of actual publication (e.g. via newspaper, public announcement, etc.) by [the defendant].” Id. at 855 n.18.
The statement must be “highly offensive to a reasonable person.” Godbehere, 783 P.2d at 786 (citing Time, Inc. v. Hill, 385 U.S. 374 (1967); Restatement (Second) of Torts § 652E); Hart, 947 P.2d at 854. “Thus, the plaintiff’s subjective threshold of sensibility is not the measure, and ‘trivial indignities’ are not actionable.” Godbehere, 783 at 786. In other words, it is not enough that the plaintiff is offended; it must be reasonable to take offense.
To prove false light, a plaintiff must show “‘a major misrepresentation of [the plaintiff’s] character, history, activities or beliefs,’ not merely minor or unimportant inaccuracies.” Godbehere, 783 P.2d at 787 (alteration in original) (quoting Restatement § 652E (Second) of Torts cmmt c).
“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.” Id. (internal citation omitted). Thus, false light protects against not only outright falsehoods, but also against false innuendo, and “[a] plaintiff may bring a false light invasion of privacy action . . . even though the actual facts stated are true.” Id.
As an example of this type of statement, the court in Godbehere cited Douglass v. Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir. 1985), in which the plaintiff successfully sued for false light invasion of privacy when photographs for which she had posed nude and consented to publication in Playboy magazine were actually published in Hustler magazine, “a publication of much lower standing in the journalistic community.” Id. at 787 n.2.
A plaintiff must also show that the defendant was at fault when he or she caused the false implication. In Arizona, the plaintiff must show that the defendant acted “with knowledge of the falsity or reckless disregard for the truth.” Godbehere, 162 Ariz. at 786, 788. This language echoes the “actual malice” standard in public figure defamation cases.
While the Supreme Court of Arizona has specified that the “actual malice” standard applies to false light claims made by public figures, id. at 788‑89, it has left open the question of whether a non‑public figure may recover under a false light claim where he shows negligence but not actual malice, id. at 789 n.6.
Privileges and Defenses
If you are sued for false light, you may have several defenses that will protect you, even if the plaintiff has an otherwise winning case. See the section on Defamation Privileges and Defenses for a general discussion of potential defenses. For instance, opinions are constitutionally protected; a false light claim must be based on the implication of a false fact. There is also an important common law protection that may be protect you when you comment on issues of public concern:
Issues of Public Concern Related to Public Officials
The Supreme Court of Arizona has specified that “there can be no false light invasion of privacy action for matters involving official acts or duties of public officers” because of public officials’ more limited privacy rights. Godbehere, 783 P.2d at 789. As a result, “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.” Id. Unlike in some other states, Arizona has not limited this protection to only media defendants.