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What Is the Tort of False Light?

False Light Involves Publicity About a Person Where Such Publicity Contains Highly Offensive Information That Tends to Falsely Characterize That Person.

Lawsuit Document Containging Allegations of Tort of False Light Until recently, the law as to whether the tort of false light was a legitimate cause of action remained without a confirming judicial decision; however, with the case of Yenovkian v. Gulian, 2019 ONSC 7279 the tort of false light is now deemed as a legal cause of action within Ontario.  It is notable that the tort of false light is somewhat similar to, and may contain some of the same elements as, the tort of defamation; however, the tort of false light, or more fully known as Publicity Placing a Person in a False Light, actually falls within the breach of privacy family of four subtorts as are outlined within the Jones v. Tsige, 2012 ONCA 32 case at paragraph 18.  In confirming the false light tort, as the fourth breach of privacy subtort, the other three subtorts being previously confirmed, the court within the Yenovkian case stated:

[170]  With these three torts all recognized in Ontario law, the remaining item in the “four-tort catalogue” of causes of action for invasion of privacy is the third, that is, publicity placing the plaintiff in a false light. I hold that this is the case in which this cause of action should be recognized. It is described in § 652E of the Restatement as follows:

Publicity Placing Person in 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.

[171]  I adopt this statement of the elements of the tort. I also note the clarification in the Restatement's commentary on this passage to the effect that, while the publicity giving rise to this cause of action will often be defamatory, defamation is not required. It is enough for the plaintiff to show that a reasonable person would find it highly offensive to be publicly misrepresented as they have been. The wrong is in publicly representing someone, not as worse than they are, but as other than they are. The value at stake is respect for a person's privacy right to control the way they present themselves to the world.

[172]  It also bears noting this cause of action has much in common with the tort of public disclosure of private facts. They share the common elements of 1) publicity, which is 2) highly offensive to a reasonable person. The principal difference between the two is that public disclosure of private facts involves true statements, while “false light” publicity involves false or misleading claims. (Two further elements also distinguish the two causes of action: “false light” invasion of privacy requires that the defendant know or be reckless to the falsity of the information, while public disclosure of private facts involves a requirement that there be no legitimate public concern justifying the disclosure.)

[173]  It follows that one who subjects another to highly offensive publicity can be held responsible whether the publicity is true or false. This indeed, is precisely why the tort of publicity placing a person a false light should be recognized. It would be absurd if a defendant could escape liability for invasion of privacy simply because the statements they have made about another person are false.

[174]  Moreover, it is likely that in the course of creating publicity placing a person in a false light, the wrongdoer will happen to include true, but private, facts about the person whose privacy is invaded. In this case, for instance, the defendant has publicized falsehoods about the plaintiff, but he has also publicly aired private facts about her present living situation with the children and her parents (including videos of their home) and details of access visits which is a true, but private matter.

Summary Comment

Accordingly, the false light tort case involves a defendant who knowingly publishes, or publishes with disregard, information that would be highly offensive to a reasonable person where such highly offensive information, as Yenovkian suggests, infringes upon the right of a person to control the way a person is presented.  Furthermore, it is noted that false light may involve the publishing of partial truth where the lack of full truth is misleading and therefore mischaracterizing.

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