The victim of the nonconsensual online publication of intimate photographs or videos may bring a common law action for false light if he or she can argue that the material makes it seem that he or she is something he or she is not (for example: that he or she aspires to be a porn star or that he or she is an exhibitionist). He or she must suffer damages to her pecuniary interests. In New York, it is unlikely that a WMC victim would try to make a claim of injurious falsehood.
1) Publication of false and malicious statements;
2) Reasonably calculated to cause harm, disparaging the title or property interests of another; and
3) Resulting in special damages.1
Research is ongoing. My search of New York cases citing this statute did not reveal any cases that are factually relevant or analogous to WMC’s target situations.
d. Practice Pointers
Injurious falsehood in New York is also known as “trade libel,” “product disparagement,” and other various thereof, and it is separate and apart from defamation.2
- 1. Joseph v. Siegel, 105 N.Y.S.2d 690 (N.Y. Sup. Ct. 1951), aff’d Joseph v. Lutzky, 106 N.E.2d 613 (N.Y. 1952).
- 2. Ruder & Finn Inc. v. Seaboard Sur. Co., 422 N.E.2d 518, 522 (N.Y. 1981) (“[A]lthough defamation and disparagement in the commercial context are allied in that the gravamen of both are falsehoods published to third parties, there is a distinction.”)