The Supreme Court of Florida yesterday issued two opinions holding that Florida law does not recognize the false light invasion of privacy tort. These outcomes constitute significant wins for media defendants in a state where the existence of false light as a viable state-law claim has been hotly debated.
Rapp v. Jews for Jesus, Inc. involved statements made by the plaintiff’s stepson in a newsletter that suggested the plaintiff had joined or was a believer in the Jews for Jesus philosophy. Essentially, the plaintiff argued in the underlying proceedings that, while literally true, the statements created a false impression of her, and she brought claims for false light invasion of privacy, defamation, and intentional infliction of emotional distress based upon the statements. The court rejected the plaintiff’s position following a thorough comparison of the elements of and interests at stake in false light and defamation claims.
We once again acknowledge that it is our duty to ensure the “protection of the individual in the enjoyment of all of his inherent and essential rights and to afford a legal remedy for their invasion.” However, because the benefit of recognizing the tort, which only offers a distinct remedy in relatively few unique situations, is outweighed by the danger of unreasonably impeding constitutionally protected speech, we decline to recognize a cause of action for false light invasion of privacy.
On the same day it released Rapp, the Supreme Court of Florida also released Anderson v. Gannett. Like Rapp, Anderson involved false light invasion of privacy and defamation claims based on the same set of facts. The question before the court in Anderson was the applicable statute of limitations for false light claims, but the court dismissed the question as moot given its holding in Rapp.
False light is one of the four branches of the common-law invasion of privacy tort. In states that recognize false light as viable claim, a plaintiff must generally show that a defendant disseminated some highly offensive false publicity about an identified person with knowledge of or reckless disregard for the falsity of the statement. The elements are derived from the Restatement (Second) of Torts, 652(E). With these two decisions, Florida joins a number of other states in rejecting false light as a permissible state-law claim.
The court in Rapp stated that the concern with recognizing false light is that it is largely duplicative of defamation and does not have the same First Amendment protections. According to the court:
- Except for the distinction between publicity that is “highly offensive” and a publication that is “defamatory,” the elements of false light and defamation are “remarkably similar.”
- Florida recognizes a cause of action for “defamation by implication,” which, like false light claims where recognized, applies to literally true statements that are conveyed in such a way as to give a false impression.
- The distinction between the “objective” standard of injury for defamation versus the “subjective” standard of injury for false light is indistinct in practice. “[C]onduct that defames will often be highly offensive to a reasonable person, just as conduct that is highly offensive will often result in injury to one’s reputation.”
- The “highly offensive” standard poses too great a risk of chilling free speech because the type of conduct prohibited is not certain.
- A number of privileges and defenses apply to defamation actions, which may not be the case for false light actions.
Significantly, the Rapp court also stated that recognizing light claims might allow plaintiffs to circumvent the strict requirements of defamation. For example, Florida, like many states, has pre-suit notice and retraction statutes that apply only to defamation claims and may serve as defenses to those claims if plaintiffs fail to comply. If you would like more information, contact us for a free consultation.