Invasion of Privacy – False Light in the Public Eye

  1. Introduction

    A victim of the nonconsensual publication of his/her private, intimate images may bring a suit for invasion of privacy – false light in the public eye against the person who published the images if the material places the victim in a false light (for example a sex tape that falsely presents the victim as a porn star).

  2. Elements of a Claim

    “To plead false light invasion of privacy, a plaintiff must allege: (1) the defendant gave publicity to a matter concerning the plaintiff that placed the plaintiff before the public in a false light; (2) the false light would be highly offensive to a reasonable person; and (3) the defendant had knowledge of, or acted in reckless disregard as to, the falsity of the publicized matter and the false light in which the plaintiff would be placed.”1 Furthermore,”[f]alse light…requires at least an implicit false statement of objective fact.”2 Additionally, a claim for false light requires a showing of actual malice.3

  3. Cases

    Research is ongoing.

  4. Practice Pointers

    Unlike in a defamation suit, where the plaintiff must plead injury to his/her reputation to have a viable claim, a claim for false light in Nevada merely requires that the plaintiff suffer emotional harm.4 In People for the Ethical Treatment of Animals v. Berosini, the Court noted the difference between false light and defamation: “The false light privacy action differs from a defamation action in that the injury in privacy actions is a mental distress from having been exposed to public view, while the injury in defamation actions is damage to reputation.”5

    The Fifth Circuit affirmed a false light claim under Texas law in Wood v. Hustler Magazine, Inc. after Hustler magazine published a stolen photo of the plaintiff.6 The false light theory had two components: (1) “[Defendant’s] publication falsely represented that [plaintiff] consented to the submission and publication in a coarse and sex-centered magazine of a photograph depicting her in the nude;” and (2) “[T]he publication falsely attributed a lewd fantasy [being raped by bikers] to [plaintiff].7

    The Sixth Circuit, however, affirmed summary judgment for defendant Hustler Magazine in Ashby v. Hustler Magazine, Inc.8 In Ashby, the plaintiff’s nude photos were stolen and submitted to Hustler Magazine where they were published. The plaintiff sued defendant for false light, but summary judgment was granted because plaintiff did not present evidence of reckless disregard.9

  1. Vail v. Pioneer Mut. Life. Ins. Co., 2010 U.S. Dist. LEXIS 107994, *5-6 (D. Nev. July 20, 2011) Dist. LEXIS 107994, *5-6 (citing Restatement (Second) of Torts § 652E). 

  2. Id. (citing Flowers v. Carville, 310 F.3d 118, 1132 (9th Cir. 2002)). 

  3. Flowers v. Carville, 266 F. Supp. 2d 1245, 1252 (D. Nev. 2003). 

  4. Flowers v. Carville, 310 F.3d 1118, 1132 (9th Cir. 2002). 

  5. People for the Ethical Treatment of Animals v. Berosini, 895 P.2d 1269, 1273 (Nev. 1995)(overruled on other grounds)(quoting Rinsley v. Brandt, 700 F. 2d 1304, 1307 (10th Cir. 1983)). 

  6. Wood v. Hustler Magazine, Inc., 736 F.2d 1084, 1093 (5th Cir. 1984). 

  7. Id. at 1089. 

  8. Ashby v. Hustler Magazine, Inc., 802 F.2d 856 (6th Cir. 1986). 

  9. Id.