This article has been written by Anshika Chadha, a student of National Law University, Jodhpur.

 

There exist four main categories of torts which lead to an invasion of one’s privacy. These are misappropriation, intrusion, the publication of one’s private facts, and false light. In this article, the focus will be on the tort of false light, which essentially protects the public when offensive and false facts about them are stated to others. This tort has been applied in multiple states in the U.S., however, it is yet to be used in Indian law. 

What is the tort of false light?

False light claims arise when certain material having false implications is published about a person, with the knowledge or in reckless disregard of whether the information was false or not. Ordinarily, such material is highly offensive to a reasonable person and presents the person in question in a false light. The role of this tort is to protect people from such false and unpleasant insinuations about them being spread in public. It deals with damages to persons due to personal humiliation, pain and suffering and public embarrassment. In the U.S., false light is codified in Sections 652A and 652E of the Restatement (Second) of Torts.

Claims for false light are usually brought against the media when they publish captions or headlines next to photographs of individuals, implying untrue things about them. The usage of this tort has been diverse in different states of the U.S. The threshold for bringing a satisfactory false light claim also differs in all states that recognize this tort in the first place. 

The following elements are generally present for a false light claim to arise:

1.  Falsehood

For bringing a claim, it is extremely important that the implication of the material published about the plaintiff was false. It is obvious that true statements would not be actionable. The kind of falsehood required here is a bit different. False statement of a fact is not the prerequisite here. Instead, what is needed is that the implication the material accompanies is false. 

2. Offensiveness

The published material should be suggestive of something highly offensive to a reasonable person. It is not enough that the plaintiff was personally offended by the material. Rather, any reasonable person should be offended by it. This was highlighted in the case of Fellow v. National Enquirer, Inc., wherein the defendant had published a picture of the plaintiff with the actress Angie Dickinson, captioned as “Angie Dickinson- Dating a producer.” The accompanying article insinuated that the two were in a relationship, which was not only false but highly offensive since the plaintiff had been married for a number of years.

3. Identification of Plaintiff 

The published material should sufficiently identify the plaintiff. The extent to which the plaintiff must be identified also differs under different jurisdictions in the U.S. For instance, California courts have held that it is not necessary that the plaintiffs were identified by name in the material. An instance of this is the case of Gill v. Curtis Publishing Co., where a picture of the plaintiffs was published in a journal, featured with an article criticising ‘love at first sight’ along with the cation, “publicized as glamorous, desirable, ‘love at first sight’ is a bad risk.” The plaintiffs brought a claim against the journal and succeeded, even though they were not named in the article. This was because the implication created about them in the minds of the readers, i.e. the love between them is ‘wrong’, was clearly false.

4. Public Disclosure of Statement

The plaintiff must show that the defendant publicly released the falsehood about him. There is some ambiguity related to the number of people that must receive the information for it to be considered a public disclosure. It is reasonable to state that publishing material on the internet will be disclosing it to the public. Accordingly, privately stating something to one person is not public disclosure. 

5. Fault

Finally, the last element to be satisfied generally is that of fault. The plaintiff must satisfy the court that he was placed in a false light publicly due to the defendant’s fault. There are differences between claims brought by public figures and those who are not public figures. In Solano v. Playgirl, it was held that public figures must show actual malice on part of the defendant in false light claims. 

False Light v. Defamation

To understand the concept of false light it is necessary to differentiate it from the offence of defamation. Both appear to be quite similar at first glance. However, one key difference between the two is that a statement need not be defamatory in nature to be actionable under the category of false light. It simply needs to be false. Moreover, defamation focuses on the damage done to the plaintiff’s reputation in society. Contrary to this, false light is more concerned with the impact of the material on his emotional well-being and feelings.

Claims for false light and defamation arise from the same facts, and hence usually overlap. Then, why should a person bring a claim for false light when they could file a suit for defamation? This is because false light offers some advantages over defamation:

1. Keeping in mind that the tort of false light has not been properly developed or codified in the U.S., there are far lesser restrictions on recovery in such cases. False light claims are not even recognized in some of the states, further boosting the first advantage. This means that if the plaintiff wins his false light case, he is liable to recover much more in the form of damages.
2. A false light claim is usually easier to bring than a defamation claim. In defamation cases, the defendant is at a more advantageous position compared to the plaintiff. Defences like truth, the statement being a matter of opinion or no statement actually being made about the plaintiff are widely and successfully used by defendants. False light is beneficial to plaintiffs because the concerned material is judged in the context it was published in.
3. False light claims are governed by a different statute of limitation. This implies that a claim for defamation which has expired may still be actionable via false light.
4. Truth acts as a complete defence in defamation claims. This is not the case in false light claims. The defendant’s statement about the plaintiff may be true and still have no use as a defence if the implication it brings is false.
5. Defamation is aimed at protecting the reputation of the plaintiff. But a statement that is embarrassing to the plaintiff may not necessarily harm his reputation. In such cases, where defamation will be of no use, plaintiffs can use false light, since the latter is concerned with the personal humiliation suffered by the plaintiff.

If a person brings a claim for defamation, the following elements have to be proved in a court of law:

• The defendant made a statement about the plaintiff to another person, i.e. statement was published.
• The statement published caused damage to the plaintiff’s reputation.
• The statement published was false.
• The statement is not protected by any privileges (for instance, a witness testifying in court and making a false and injurious statement is immune from any claim of defamation).

On the contrary, when making a claim of false light, on the other hand, the following things will have to be established:

• The defendant disclosed information about the plaintiff to the public.
• The material published by the defendant presented the plaintiff in a false light.
• The material was highly offensive and humiliating to a reasonable person.
• The defendant acted with reckless disregard to the offensiveness or falsity of the disclosed material.

False Light: Usage in India

There has been practically no application of the concept of false light in the context of privacy torts in India. Literally speaking, the term ‘false light’ is used only once in the Indian Penal Code, 1860, in Section 281, which is related to displaying any false signal so as to mislead the navigator of a vessel.

Besides this, the closest usage of this term in the context of invasion of one’s privacy can be found in cases such as Dr. D. Dhaya Devadas v. Indian Bureau of Mines, K.S Bedi v. Income Tax Department, and Anil Chintaman Khare v. A.K Garg. In all these cases, false light is used to merely allude to the spread of certain falsehood. A few extracts from these cases give a better understanding of this usage:

Chief Information Commissioner A. N. Tiwari, in his judgement in Dr. D. Dhaya Devadas v. Indian Bureau of Mines, states:

“Appellant believes that the plea of current investigation was only a subterfuge to deny to the appellant information that would show the officers of the public authority in a false light.”

In Anil Chintaman Khare v. A.K Garg, it was stated:

“The VCA would not like that its Income Tax Returns and assessment be allowed to get into the hands of the people such as the appellant, who could distort and misrepresent the same to show VCA in a false light.”

In addition to this, there is hardly any existing academic writing that discusses this doctrine in India. Till now, the term “false light” has not been used to refer to the doctrine applied in the U.S., rather it is simply used as an indicator of some falsehood being circulated. Hence, it is fair to say that this doctrine is not in use in India. The question that now arises is whether this doctrine should be used in India or not? 

Incorporating ‘False Light’ in India

In Indian society, the doctrine of false light will prove to be extremely useful. It is a nation where various orthodox customs and taboos are still prevalent and hold influence over the general public. People rely on the media and are quick to pin blame on people and ridicule them based on information received through such sources. Almost every day, there is some news becoming ‘viral’. At times like these, when instant messaging services allow large groups of people to disclose any material they wish to others in a second, the task to protect one’s privacy becomes exceptionally difficult. The scope of defamation appears too narrow to deal with such issues, and one novel solution to protect unsuspecting victims from false impressions being created about them is the doctrine of false light.

Before applying this doctrine in Indian cases, a few necessary changes will be needed for it to be a success. Since false light claims arise because victims wish to separate themselves from the false impression they are associated with, all such cases should happen ex curia. In this way, the truth of the matter is made public knowledge and consequently, the victim’s name is cleared in the society. 

The punishment inflicted by a successful false light claim should be appropriately decided so as to prevent such incidents from taking place again. This will also ensure that the media is careful with what they publish and realizes their duty towards the public. Since false light claims are easier to bring in comparison to defamation, the victims will be less hesitant to move the court.

Over the past few years, the internet has gained a wider reach compared to the traditional media sources. Everything happens with just one click. Accordingly, false light would further have to be expanded to include cases relating to the viral news and images that are spread via the internet. 

One hurdle to be tackled is in cases of instant messaging services. False messages mechanically forwarded over such applications will have to be curtailed, but taking the legal route of false light will prove cumbersome. At the same time, it will be difficult for the victim to find the starting point of a misleading message about them that is being circulated in such messaging groups in order to file a suit against them. In addition to this, prior to the introduction of such a new concept in Indian law, the actors involved, especially practicing lawyers would have to be made aware about this. If every lawyer cannot differentiate between false light and defamation on his own, then he would not be able to guide his client either. Thus, the use of this doctrine will not be devoid of any issues.

Conclusion

In an orthodox and traditional society like India, where a false claim or viral picture can haunt a person for the rest of his life, the doctrine of false light will prove to be instrumental to circumvent public humiliation, reiterate the truth and keep a check on the media to prevent exaggerated articles.