In Los Angeles and San Diego How Does False Light – Invasion of Privacy – Differ from Libel?

False Light is a form of invasion of privacy. It arises from publicity putting the plaintiff in a false perspective and damaged position. The claim is sometimes called “false light in the public eye.” A false light claim is much like an allegation of libel. But there are important differences.

Unlike a libel claim, a false light cause of action usually requires publicity, not to one other person, but to a large group of people. However, depending on the interested parties, whether there is enough publicity varies. The interests involved can form an exception to the broad-publicity rule. For example, if a defendant publishes a false communication to just a few people or companies, but those recipients have a professional interest in the subject of the statement, the total (potentially far fewer) number of those who receive the communication may satisfy the “publicity” requirement of a false light claim.[1]

A jury will consider whether the published comments (or photos, etc.), show an inaccurate – or highly unfair – depiction of a plaintiff. Unless a public figure or matter of public concern is involved, a plaintiff need show only the defendant was negligent in failing to learn the truth of the information or whether a false impression would be created by its publication.

Merely unflattering statements or pictures cannot establish a false light claim. The jury is tasked to decide whether a publication is so unfair it is actionable as false light.

Further, a defendant can defeat an alleged false light allegation by showing it is not offensive to a reasonable person. Some California cases have held the statement must be so offensive as to shock the conscience. In 1974, the United States Supreme Court ruled the “[r]evelations may be so intimate and so unwarranted in view of the victim’s position as to outrage the community’s notions of decency.”

As with non-false light libel, if a publication casting the plaintiff in a false light is libelous per se, a claim for presumed damages is immediately established. However, if publication allegedly placing the plaintiff in a false light is not reasonably susceptible to defamatory meaning on its face, the individual asserting it must plead libel per quod (literally “whereby” the libel or slander relies on facts or circumstances not obvious), and special damages (those actually suffered relating to the plaintiff’s business, trade, profession or occupation).

In a recent consultation, my client company wanted to sue another company for false light. But the law does not permit such claims. A false light claim may be maintained only by individuals. ­­­California cases reason that false light is a “tort” of a personal nature about one’s feelings and peace of mind. A corporation (or an LLC) is a fictitious person lacking “feelings” that can be legally injured. There are no cases in our state recognizing a right of privacy for a corporation.


[1] On the question of the elemental scope of publicity, see Cabanas v. Gloodt Assoc., 942 F. Supp. 1295 (1996), West Headnote 27.