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    “False Light” Invasion of Privacy – How to Bring a Lawsuit

    False light is a form of invasion of privacy for which a victim can pursue a civil claim. A false light claim exists when an individual or business

    1. publishes offensive information about that person, and
    2. implies that it is true,
    3. when it is actually false.

    A few common examples of false light include:

    • A company publishes a picture of a married couple with a message stating that their only interest in one another is sex.
    • John posts on his Facebook newsfeed a false claim that his ex-girlfriend Tyra has filed for bankruptcy.
    • A business runs an advertisement that gives the false impression that Michael supports one of its products.

    A person in California typically has a one-year statute of limitation, from the date of publication, to file a claim for false light.

    The damages a plaintiff may recover in these actions will ordinarily depend on the specific facts of a case. Some of the more common examples of damages, however, include compensation for:

    • Harm to reputation, shame and hurt feelings;
    • Damage to the plaintiff’s trade or occupation; or,
    • Loss of business income resulting from the disclosure.

    To help you better understand the claim for false light, our California personal injury lawyers discuss the following, below:

    Laptop with 'Privacy Policy' on the screen

    Only people, and not corporations or other businesses or social organizations, may sue on a claim for invasion of privacy.

    1. Who may file a lawsuit in California for false light invasion of privacy?

    Only people, and not corporations or other businesses or social organizations, may sue on a claim for invasion of privacy.1

    Also, only living people may file a false light invasion of privacy claim because a person can’t invade the privacy of a dead person. Thus, an estate can’t sue for false light on behalf of someone deceased.2 This is unless the false light took place before the person in question died.3

    2. What are the elements of a false light claim?

    There are three elements that must be proven in a successful lawsuit for the invasion of privacy tort of false light. These common-law elements are:

    1. The defendant made a public disclosure;
    2. The public statement placed the plaintiff in a false light; and,
    3. An average person would consider the false light offensive.4

    In some cases, the plaintiff might also have to prove that the defendant acted with actual malice.5

    2.1. What is a public disclosure?

    A false light claim requires public disclosure, or publicity.6 This means that information or a message must be given to the public. California courts, however, have not given clear directions on how many people of the public must receive information for there to be a public disclosure.

    For example, in one California court case, a public disclosure was found when a letter was published to 1,000 randomly selected men.7

    Yet, in another California case, there was no public disclosure when the defendant published information within a country club’s newsletter.8

    Given these two cases, the determination as to whether information amounts to public disclosure will depend on the specific facts of a case.

    Speaker at a news conference

    2.2. What is the definition of a false light?

    The facts of a case will determine whether a public disclosure places a plaintiff in a false light.

    Some general rules help guide a court in determining if a false light was created. These are:

    • At a minimum, a plaintiff must show that the defendant’s disclosure implied something false9; and,
    • A false light is created when the plaintiff’s name is used in connection with a book, article, or idea with which the plaintiff in fact is not associated.10

    Examples of successful false light claims were given at the beginning of this article. Two examples of cases in which the court did not find a false light include:

    1. Tim writing letters to people that suggested Carol had been fired from her job. There was no false light here since Carol didn’t want the firing to be a secret.11
    2. A T.V. station made statements about a public official that were not false.12

    2.3. What is offensive to an average person?

    California courts are not exactly clear as to what is considered offensive in false light claims.

    Some courts have stated that this element is met when the false light is so offensive as to shock a community’s notion of decency.13

    Other courts, however, have announced a slightly lower standard. In these cases, a false light only has to be offensive to a reasonable person.14

    2.4. When must a plaintiff show malice?

    False light claims in California are sometimes like defamation claims in terms of the facts involved. In these situations, California courts require plaintiffs to show that a defendant acted with malice.15

    Malice is shown when a defendant discloses information that he knew was false or discloses information and didn’t care if it was false or not.16

    Attorney working on laptop with scales of justice in the foreground

    There are six common defenses raised in false light lawsuits.

    3. Are there legal defenses to a false light claim?

    There are six common defenses raised in false light lawsuits. These are:

    1. The plaintiff cannot support all the elements discussed above.
    2. The average person would not think there was offensiveness in the false light.
    3. Public disclosure was true and contained no false information about the plaintiff.
    4. Public disclosure was an opinion and not a false fact.
    5. The defendant disclosed statements that were based upon information within public documents.
    6. The disclosure was protected by the First Amendment.

    4. What may a plaintiff recover in a California false light case?

    If a plaintiff is successful in his false light action, he may recover damages.

    In general, a plaintiff may be awarded three types of damages. These include:

    1. General damages, which are damages for the plaintiff’s loss of reputation, shame, and shame;
    2. Special damages, which are damages to the plaintiff’s property, trade, occupation, or business income; or,
    3. Exemplary (punitive) damages, which are damages awarded in the discretion of the court or the jury, to be recovered in addition to general and special damages, and to be awarded for the sake of example and by way of punishing a defendant.

    The specific type(s) of damages a plaintiff may be awarded will most likely depend on the facts and circumstances of a given case.

    5. How long does a plaintiff have to file a complaint for false light?

    In California, a lawsuit for false light invasion of privacy must be commenced within one year.

    The one-year period (the “limitations period” or “statute of limitations”) starts running when the plaintiff knows – or, in the exercise of reasonable diligence, should have known – about the defendant’s wrongful actions.

    Judge's gavel over a US Constitution document

    The United States Supreme Court, in a long line of cases, has placed limitations on certain speech and expressions.

    6. What about the rights to free speech?

    A claim for false light appears to restrict a person’s right to free speech. Granted, while we enjoy this right, it’s not absolute. The United States Supreme Court, in a long line of cases, has placed limitations on certain speech and expressions.

    7. Are false light claims allowed in all 50 states?

    While many states, like California, allow false light claims, not all states recognize it as a legitimate cause of action. These states find that the claims are related to a defamatory statement, and thus, unnecessary.

    States where false light is not actionable include:

    • New York
    • Florida
    • Texas

    8. Are there causes of action related to a false light invasion of privacy claim?

    There are four claims that are related to false light actions. These are:

    1. Defamation;
    2. Public disclosure of private fact;
    3. Business disparagement; and,
    4. Criminal invasion of privacy.

    8.1. Defamation

    Defamation cases in California consist of false statements that harm another’s reputation. If the statements are verbal they are called “slander.” If made in writing, they are known as “libel.”

    Whether a plaintiff can successfully sue under California’s defamation laws often depends on whether the plaintiff is a public figure, a business or a private citizen. Private citizens have greater protection from defamation than people who are in the public eye.

    In either case, however, the elements of defamation involve:

    1. An untrue statement,
    2. That was damaging to the plaintiff’s reputation,
    3. Made to someone other than the plaintiff (“published”),
    4. With knowledge of the statement’s falsity or failure to use reasonable care to ascertain its truth

    A plaintiff who is a private figure must prove malice to recover punitive damages for a matter of public concern. For further discussion, see our page on distinguishing defamation from false light.

    8.2. Public disclosure of private facts

    Under California law, a “public disclosure of private fact” occurs when a person publicly discloses private and embarrassing facts about another that are not a legitimate public concern.

    In particular, there are five elements to support a claim for public disclosure of private facts. These are:

    1. There is a public disclosure;
    2. That concerns private facts;
    3. The disclosure is one that would offend the average person;
    4. The disclosure was not of legitimate public concern; and,
    5. The defendant published private facts with reckless disregard for their truth or falsity.17

    8.3. Business disparagement

    California law makes people liable for making derogatory statements about a business to discourage others from dealing with it. This tort is known as “commercial disparagement” or “business disparagement” or “trade libel.”

    Although similar to California’s law on defamation, the law on business disparagement exists to protect the financial reputation of a business (as opposed to someone’s personal reputation). While it exists primarily to prevent unfair competition between businesses, it can also be brought against a customer.

    The three claims mentioned above – defamation, public disclosure of private fact, and business disparagement – represent examples of a lawsuit where a person in California sues for harm to his reputation.

    8.4. Criminal invasion of privacy

    Penal Code 647(j) PC is California’s criminal “invasion of privacy” law. PC 647(j) makes it a misdemeanor to violate someone’s privacy in any of three specific ways:

    1. Using a device such as a telescope or binoculars to invade a person’s privacy;
    2. Secretly photographing or recording a person’s body under or through his or her clothing for the purpose of sexual arousal or gratification; or
    3. Secretly recording or photographing someone in a private room in order to view that person’s body or undergarments

    A person found guilty of violating PC 647(j) is charged with a misdemeanor. A misdemeanor is punishable by:

    • Up to six (6) months in county jail, and/or
    • A fine of up to $1,000.18

    Legal References

    1. James v. Screen Gems , Inc. 174 Cal. App. 2d 650; Restatement 2d of Torts § 652E).
    2. See same.
    3. See same; see also Lorenzo v. United States (S.D. Cal. 2010) 719 F. Supp. 2d 1208 and Playgirl, Inc. v. Solano (9th Cir. 2002) 292 F.3d 1078.
    4. Gill v. Curtis Publishing Co., 38 Cal. 2d 273.; see also Time, Inc. v. Hill (1967) 385 U.S. 374, 387-388.
    5. Selleck v. Globe Int’l, Inc., 166 Cal. App. 3d 1123.
    6. Werner v. Times-Mirror Co., 193 Cal. App. 2d 111.
    7. Kerby v. Hal Roach Studios, Inc., 53 Cal. App. 2d 207.
    8. Warfield v. Peninsula Golf & Country Club, 214 Cal. App. 3d 646.
    9. Gill v. Curtis Publishing Co., 38 Cal. 2d 273.
    10. O’Hilderbrandt v. Columbia Broad, Sys., Inc., 40 Cal. App. 3d 323.
    11. Patton v. Royal Indus, Inc., 263 Cal. App. 2d 760.
    12. Aisenson v. Am. Broad. Co., 220 Cal. App. 3d 146.
    13. O’Hilderbrandt v. Columbia Broad, Sys., Inc., 40 Cal. App. 3d 323.
    14. Gill v. Curtis Publishing Co., 38 Cal. 2d 273.
    15. Johnson v. Harcourt, Brace, Jovanovich, Inc., 43 Cal. App. 3d 880.
    16. Wolston v. Reader’s Digest Ass’n, 443 U.S. 157.
    17. Shulman v. Group W. Prods, Inc., 74 Cal. Rptr. 2d 843. See also Briscoe v. Reader’s Digest Ass’n, 4 Cal. 3d 529 (1971), overruled on other grounds by Gates v. Discovery Communications, Inc., 101 P.3d 552 (Cal. 2004).
    18. Penal Code 647(j). See also Penal Code 19: “Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.”
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