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Fall 2007 Bulletin
Ohio Supreme Court Recognizes False Light Claim
A dispute between neighbors led the Ohio Supreme Court to recognize the tort of false light invasion of privacy June 6, 2007. The 6 to 2 decision in Welling v. Weinfeld, 866 N.E.2d 1051 (Ohio 2007), called media concerns “overblown” and argued the pervasiveness of the Internet makes privacy protections increasingly important.
Along with Ohio, 30 states recognize false light claims, nine states (including Minnesota) have expressly rejected the cause of action, and 11 have yet to rule on the issue, according to the Reporters Committee for Freedom of the Press. No state’s high court has considered the issue since Colorado declined to adopt false light invasion of privacy in 2002. (See “Colorado Rejects False Light Invasion of Privacy Tort” in the Fall 2002 Silha Bulletin.)
The Ohio case started when Perry Township resident Lauri Weinfeld, owner of a local banquet hall called the Party Center, took issue with her neighbors’ use of yard equipment during events at the center. Weinfeld also believed Katherine and Robert Welling’s son was responsible for a May 2000 broken window at the Party Center.
Weinfeld sued and the Wellings countersued alleging false light invasion of privacy. They cited handbills Weinfeld printed after she discovered the broken window. The handbill offered a $500 reward for information leading to the conviction of the person who broke the window at the Party Center. Though the handbill did not mention the Wellings’ son, Weinfeld distributed it at the soft drink bottling plant where Robert Welling and his son worked and the school where some of the Wellings’ children attended.
The Wellings claimed the distribution of the handbills at targeted locations “spread wrongful publicity about them that unreasonably placed them in a false light before the public,” wrote Justice Paul E. Pfeifer. At trial, the jury agreed, awarding the Wellings $5,412.38 in compensatory damages and $250,000 in punitive damages. The appellate court reversed, noting that Ohio’s highest court had not recognized the tort of false light invasion of privacy. The Wellings appealed to the Ohio Supreme Court.
Pfeifer began the opinion by reviewing the history of privacy torts in Ohio. In Housh v. Peth, 133 N.E.2d 340 (Ohio 1956), the court recognized misappropriation, publication of private facts, and intrusion on seclusion, but did not mention false light. The Restatement (Second) of Torts recognizes all four privacy torts, as did William L. Prosser in the California Law Review article “Privacy,” 48 Cal. L. Rev. 383 (1960).
According to the Restatement, misappropriation requires the “use or benefit [from] the name or likeness of another.” To prove publication of private facts, the plaintiff must show the defendant gave “publicity to a matter” concerning the plaintiff’s private life, and that the subject matter is both “highly offensive to a reasonable person” and “not of legitimate public concern.” The tort of intrusion requires intentional invasion “upon the solitude or seclusion of another” that is “highly offensive to a reasonable person.”
“Without false light, the right to privacy is not whole,” Pfeifer wrote. The court adopted the Restatement’s version of the tort, requiring the plaintiff prove the defendant gave “publicity” to a matter that shows the defendant in a false light. The false light must be “highly offensive to a reasonable person,” but it need not be defamatory. Also, all plaintiffs must prove “actual malice,” that the defendant knew the information was false or acted with reckless disregard as to the probable falsity of the information.
The majority opinion focused its analysis on the two most recent states to consider whether to adopt false light invasion of privacy, Tennessee and Colorado. In West v. Media General Convergence, Inc., 53 S.W.3d 640 (Tenn. 2001), the Tennessee Supreme Court adopted false light invasion of privacy. One year later, in Denver Publishing Co. v. Bueno, 54 P.3d 893 (Colo. 2002), Colorado’s high court reached the opposite conclusion.
Relying on Bueno, the Ohio court recognized the two principal criticisms of the tort. Opponents argue that it largely overlaps with the existing tort of defamation, and it chills the constitutional interest in a free press and free speech.
Pfeifer acknowledged false light claims could often be brought as defamation claims instead, but found two classes of cases in which a plaintiff could prevail on a false light claim but a defamation claim would fail: those cases where the defendant publicized highly offensive information that is false but not defamatory, “for example portraying plaintiff as the victim of sexual harassment [citation omitted], or as being poverty stricken [citation omitted],” and those cases where the publicity portrays the plaintiff “in a more positive light than he deserves.”
The court reasoned that its failure to recognize false light would leave gaps in the state’s protection of individual privacy. “In Ohio, we have already recognized that a claim for invasion of privacy can arise when true private details of a person’s life are publicized [publication of private facts]. The right to privacy naturally extends to the ability to control false statements made about oneself,” Pfeifer wrote.
The majority rejected the argument that recognizing false light would chill protected speech, pointing to the high fault standard it had adopted. In order to be liable, reporters and editors must know the information is false or act with reckless disregard for the truth, regardless of whether the plaintiff is a public figure or a private citizen. The standard makes false light more difficult to prove than defamation in the case of a private figure plaintiff.
Pfeifer reasoned that the high fault standard would protect the press even though false but not defamatory statements may be more difficult for editors to recognize and check. “False light defendants enjoy protections at least as extensive as defamation defendants,” he wrote.
Finally, the majority argued that the onset of the information age makes protection of personal privacy increasingly important. “Today, thanks to the accessibility of the Internet, the barriers to generating publicity are slight, and the ethical standards regarding the acceptability of certain discourse have been lowered. As the ability to do harm has grown, so must the law’s ability to protect the innocent.”
The ruling reversed the appellate court and returned the case to the trial court for a new trial on the issue. Two justices dissented but did not issue separate opinions.
- Michael Schoepf,
Silha Research Assistant
University of Minnesota | College of Liberal Arts | School of Journalism and Mass Communication
