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The difficulty of proving false light

Published: Tuesday, October 19, 2010

Updated: Tuesday, September 24, 2013 10:09

In 2003, a newsletter published a false account of a Jewish woman accepting Jesus into her faith, including her name.

In 1988, the National Enquirer published a story about a man who fell out of an airplane but hung onto door rails during an emergency landing. The story was dramatized by telling of his near-death thoughts, though the writer never spoke with the man.

Photos of a ten-year-old girl were used in an ad campaign that falsely described her as being "underinsured" with "severe health problems."

What all three of these instances have in common is that the parties involved filed false light claims in court. False light claims are not uncommon in the United States judicial system, and all are controversial cases that have to do with privacy and publishing false information about private citizens.  All three of these court cases have also had similar rulings in appeals courts, and all three cases were dismissed.

There are two major things that have to be proven by the plaintiff in court in order for the false light tort to hold. First, the information published has to be proven to be offensive to a reasonable person and second, the publisher must be proven to have published the information. These conditions are difficult to determine in court, particularly in these cases. 

According to the Business Torts Reporter, in the case involving the religious organization Jews for Jesus, Edith Rapp argued that she suffered harm when her step son told the Jews for Jesus newsletter that he persuaded her to turn from her traditional Jewish faith to ask forgiveness for her sins and accept "Y'Shua" or Jesus. His story was published online and seen by one of Rapp's family members. She sued, saying the information was false and published without her permission.

The initial case was dismissed and when appealed in the state of Florida, the court again rejected the false light tort "because the ‘common mind' reading the newsletter would not have found Edith to be an object of "hatred, distrust, ridicule, contempt or disgrace,'" according to the court ruling.

The Florida Supreme Court agreed, stating that the false light tort overlaps with the tort of defamation and because it "has the potential to chill speech without any appreciable benefit to society."

In suits against "The National Inquirer" and the "Star," Henry Dempsey said stories published about his near-death experience were essentially correct, but filled with embellishment. He also claimed that the publication "Star" had never contacted him for information or permission to use his name and the story. Dempsey's suit claimed that the stories portrayed him in a false light to the public and that his story was distastefully used to "sell product," according to the claim.

The case against the "Inquirer" was dismissed in appeals court in Maine because it was not considered offensive to a reasonable person. The court ruled that the story was essentially accurate and that the company's business is to sell news.

On Oct. 12, a claim was filed against the American Medical Association (AMA) by Angela Wonsey for using her daughter's China image in a false way by portraying her as having been diagnosed with cancer and not having adequate insurance coverage. The ads could be found across the nation, including in major magazines such as Time and Newsweek and were also seen on taxicabs in Minneapolis. 

The suit also named the talent agency, Shirley Hamilton Inc.,which employed her daughter as a model for the photographs and with whom a contract was signed agreeing the images would only be used for one year. Lou Beres & Associates, the advertising agency for AMA was also named in the initial claim stating that they "orchestrated" the campaign.

According to The Courthouse News Service online, "One version of the advertisements recently featured on an AMA website statesthat China is one of several 'stories of the uninsured,' which is also untrue. The advertisements appear on a portion of the website claiming to feature 'RealPeople. Real Stories.'"

The question in this case is whether Wonsey can prove that the false material in the advertisements is highly offensive to a reasonable person and the American Medical Association is at fault. This is one case we will be hearing about as it proceeds in the upcoming months.

Sloppy journalism is to blame in these cases. Had the publications been thorough and cautious when printing information, these problems could have been avoided. The editors of the Jews for Jesus newsletter could have easily verified the account provided by Rapp's step son using a simple fact checking process. The tabloids would have had a solid story if they thought to take the time to contact the most obvious source. The people working on the ad campaign for the American Medical Association could have gone out and found ill, uninsured children to photograph instead of using a model, making up the story and claiming the information to be "real." Again, they could have had a compelling campaign, but their money and time spent was a waste because now that this case has been filed, no one will take the ads seriously, and the reputation of the organization has been ruined.

      What those working in the fields of mass communication need to understand is that they have incredible influence over public opinion, and with that tremendous control comes the responsibility to make sure that their information is accurate.

While the false light tort does not typically hold up in court unless the material is considered offensive to a reasonable person, in my opinion, publishers should use discretion and always strive to print truthful information, especially when privacy and reputation are at stake.

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