Attorney Steve® Privacy Torts - False Light jury instructions
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In Arizona, the Restatement of Torts includes four separate torts in the classification of the Right to Privacy:
(1) intrusion on the plaintiff's seclusion or private affairs,
(2) public disclosure of private facts,
(3) publicly placing the plaintiff in a false light,
(4) appropriation of the plaintiff's name or likeness. See Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 338, 783 P.2d 781 (1989) citing RESTATEMENT (2D) OF TORTS § 652 (1977).
However, no Arizona appellate case has yet addressed whether Arizona will adopt a tort remedy for misappropriation. But see Lemon v. Harlem Globetrotters Int’l, Inc., 437 F. Supp. 2d 1089, 1100 (2006) (concluding that Arizona would recognize a tort remedy for misappropriation claims).
This blog talks about the required elements.
Elements required to prove "false light" (with actual malice)
Here are the jury instructions which shows the items a Plaintiff must prove to avoid losing on demurrer or summary judgment:
INVASION OF PRIVACY 9A (Invasion of Privacy by Publicly Placing Plaintiff in a False Light – Elements) (Where Actual Malice Is Required)
[Name of plaintiff] claims [name of defendant] invaded [his] [her] privacy by placing [him] [her] before the public in a false light. On this claim [name of plaintiff] must prove:
1. [Name of defendant] made, said, or wrote a public statement about [name of plaintiff];
2. [Name of defendant]'s [statement] [conduct] created a false impression about [name of plaintiff].
3. The impression created about [name of plaintiff] would be highly offensive to a reasonable person;
4. [Name of defendant]'s [statement] [conduct] was a cause of [name of plaintiff]'s [injuries] [damages] [losses];
5. [Name of plaintiff] had [injuries] [damages] [losses].
In addition, in order for you to find for [Name of plaintiff] on this claim, you must find by clear and convincing evidence that at the time the statement was made, said, or written [name of defendant] either:
6a. knew that [his] [her] [statement] [conduct] would create a false impression about [name of plaintiff]
6b. acted recklessly about whether [his] [her] [statement] [conduct] would create a false impression about [name of plaintiff]. If you find that any of these six requirements has not been proven, then your verdict must be for [name of defendant].
If you find that all six of the these requirements have been proven, then [your verdict must be for [name of plaintiff]] [then you must consider [name of defendant]'s defense(s) of [insert any affirmative defense(s) that would be a complete defense to the plaintiff's claim].
1. More than mere annoyance needed: "The right of privacy does not protect people from minor annoyances, indignities or insults. To be actionable, the defendant's conduct must be highly offensive to a reasonable person. Evidence of the circumstances of the alleged intrusion are relevant to whether the conduct is highly offensive including the setting and manner in which the intrusion occurred, the defendant's motives and objectives, and the plaintiff's expectation of privacy. See Med. Lab. Mgmt. Consultants v. Am. Broad. Cos., 306 F.3d 806, 819 (9th Cir. 2002); RESTATEMENT (2D) OF TORTS § 652B cmt. d (1977).
2. The intrusion must be highly offensive to the reasonable person: "In Fernandez v. United Acceptance Corp., 125 Ariz. 459, 610 P.2d 461 (Ct. App. 1980), the court addressed whether a collection agent's conduct was sufficiently egregious to be considered an invasion of privacy. The court noted that the standard was whether the action would cause extreme mental anguish to “a person of ordinary sensibilities.” Id. at 461, 610 P.2d at 463 (quoting Rugg v. McCarty, 476 P.2d 753 (Colo. 1970)). See also Med. Lab. Mgmt. Consultants v. Am. Broad. Cos., 306 F.3d 806, 819 (9th Cir. 2002) (surreptitious videotaping of medical lab was not sufficiently offensive to state a claim for intrusion upon seclusion)."
A statement which creates a false impression about a person is “highly offensive” if a reasonable person in the same or similar circumstances would feel seriously upset or embarrassed by the statement
3. A significant public disclosure is required: "A disclosure is “public” if it is communicated to the general public or to a large number of persons or if it is communicated in a way that it is substantially certain to become a matter of public knowledge." The court in Hart v Seven Resorts, Inc., explained that to be actionable the disclosure of the private facts about the plaintiff must be to more than a small group of people. Publicity means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication which may be oral, written or by any other means. It is one of a communication that reaches, or is sure to reach, the public. . . . It is not an invasion of the right of privacy . . . to communicate a fact concerning the plaintiff's private life to a single person or even to a small group of persons. On the other hand, any publication in a newspaper or magazine, even of small circulation, . . . or statement made in an address to a large audience, is sufficient. Hart, 190 Ariz. at 280, 947 P.2d at 854.
4. A public disclosure must be clearly about an identifiable Plaintiff: "A public disclosure is about [name of plaintiff] if the people who [see] [hear] [read] the disclosure would reasonably understand that it refers to [name of plaintiff]."
Reynolds v. Reynolds, 231 Ariz. 313, 318, 294 P.3d 151 (Ct. App. 2013) (false light claim dismissed because article could not be read to be about plaintiffs); RESTATEMENT (SECOND) OF TORTS § 652D (1977); R. SLACK, LIBEL, SLANDER, & RELATED PROBLEMS § 12:4.3 (4th ed. 2014) (“The question is whether the plaintiff would reasonably be understood by recipients of the offending communication to be the person to whom it relates.”).
5. Public figures: A public figure may not bring a false light invasion of privacy claim based on a statement related to the performance of his or her public life or duties. However, a public figure may bring an action if the publication presents the public figure's private life in a false light. Godbehere v. Phoenix Newspapers, 162 Ariz. 335, 783 P.2d 781 (1989)
6. Actual malice vs. negligence standard (failure to use reasonable care that places a Plaintiff in a false light): the “actual malice” element, must be proved when the plaintiff is a public figure, but the statement giving rise to the plaintiff's false light claim relates to the plaintiff's private affairs. Godbehere, 162 Ariz. at 343. If the plaintiff is not a public figure, then the negligence standard in Instruction 9B should be used. See Advanced Cardiac Specialists, 222 Ariz. at 388, 214 P.3d at 1029.
However, in Advanced Cardiac Specialists v. Tri-City Cardiology Consultants, 222 Ariz. 383, 214 P.3d 1024 (Ct. App. 2009), the court held that a negligence standard should be applied in privacy cases in which there is no allegation that the plaintiff is a public figure or that the case involves a matter of public concern.
7. Causation: Before you can find [name of defendant] liable for [invasion of] [interference with] [name of plaintiff]'s privacy, you must find that [name of defendant]'s [conduct] [statement about [name of plaintiff]] was a cause of [name of plaintiff]'s [injuries] [damages] [losses]. [Conduct] [A statement] causes damages if it helps produce the damage, and if the damage would not have happened without the [conduct] [statement].
If you find that [Name of Defendant] has [invaded [Name of Plaintiff]'s privacy] [interfered with [Name of Plaintiff]'s privacy] [publicly disclosed private [information about] [images of] [Name of Plaintiff]] [placed [Name of Plaintiff] in a false light], you must then decide the full amount of damages that will reasonably and fairly compensate [Name of Plaintiff] for each of the following elements of damages proved by the evidence to have been caused by [Name of Defendant]'s conduct:
1. Emotional distress, humiliation, inconvenience, and anxiety already experienced and reasonably probable to be experienced in the future.
2. Financial losses already experienced and reasonably probable to be experienced in the future.
3. Impairment/Injury to reputation and standing in the community already experienced and reasonably probable to be experienced in the future.
Reed v. Real Detective Publishing Co., Inc., 63 Ariz. 294, 162 P.2d 133 (1945) (plaintiff may recover damages for mental pain and annoyance resulting from unauthorized publication of photograph of the plaintiff); Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 782 P.2d 781 (1989) (plaintiff may recover damages for emotional suffering caused by false light invasion of privacy); RESTATEMENT (SECOND) OF TORTS § 652H (1977).
COMMENT: It is unclear whether a plaintiff in an invasion of privacy case may recover damages for injury to his or her reputation. Comment a to Restatement § 652H indicates that damages may be recoverable for reputational injuries.
A cause of action for invasion of privacy entitles the plaintiff to recover damages for the harm to the particular element of his privacy that is invaded. Thus one who suffers an intrusion upon his solitude or seclusion under § 652B may recover damages for the deprivation of his seclusion. One whose name, likeness or identity is appropriated under § 652C may recover for the loss of the exclusive use of the value so appropriated. One to whose private life publicity is given under § 652D may recover for the harm resulting to his reputation for the publicity. One who is publicly placed in a false light under § 652E may recover damages for the harm to his reputation from the position in which he is placed.
However, the court in Godbehere distinguished between the damages recoverable in defamation and privacy claims. Although both defamation and false light invasion of privacy involve publication, the nature of the interests protected by each action differs substantially. A defamation action compensates damage to reputation or good name caused by the publication of false information. . . . Privacy, on the other hand, does not protect reputation but protects mental and emotional interests. . . . Under this theory, a plaintiff may recover even in the absence of reputational damage, as long as the publicity is unreasonably offensive and attributes false characteristics. Godbehere, 162 Ariz. at 341, 782 P.2d at 787.
9. Affirmative defenses:
A. Qualified privilege:
Arizona recognizes a number of qualified or conditional privileges. See Green Acres, supra; see also Advanced Cardiac, supra (qualified privilege to report improper conduct to medical board); Burns v. Davis, 196 Ariz. 155, 993 P.2d 1119 (Ct. App. 1999) (qualified privilege to provide information at zoning board hearing); and Ramsey v. Yavapai Family Advocacy Center, 225 Ariz. 132, 235 P.3d 285 (Ct. App. 2010) (qualified privilege to report suspected child abuse). Whether the defendant abused the privilege by acting with malice is a question of fact to be determined by the jury. To establish that a qualified privilege has been abused, the plaintiff must show malice by clear and convincing evidence. See Advanced Cardiac, 222 Ariz. at 387, 214 P.3d at 1028. Here is the sample false light jury instruction from the Arizona State Bar
[Name of defendant] claims that [he] [she] is not liable for invading [name of plaintiff]'s privacy because [describe nature of defendant's claim of privilege].1 [Repeat description of claimed privilege] is protected from liability unless it was done with malice. [Name of plaintiff] claims that [name of defendant]'s conduct is not protected from liability because [name of defendant] acted with malice. On the claim of malice, [name of plaintiff] must prove by clear and convincing2 evidence: 1. [Name of defendant] knew that [his] [her] statement was untrue or had serious doubts about the truth of the statement and 2. [Name of defendant] was motivated by an improper purpose. If you find that malice has been proven, then your verdict must be for [name of plaintiff]. If you find that malice has not been proven, then your verdict must be for [name of defendant].
Consent is another defense:
[Name of defendant] contends that [he] [she] is not liable for invading [name of plaintiff]'s privacy because [name of plaintiff] consented to [describe the alleged invasion of privacy]. On this defense, [name of defendant] must prove:
1. [Name of plaintiff], by words or conduct, led [name of defendant] to reasonably believe that [name of plaintiff] agreed to[describe defendant's conduct]
2. [Name of defendant] acted in a manner and for a purpose [which [name of plaintiff] had agreed to] [which [name of defendant] reasonably believed that [name of plaintiff] agreed to].
if you find that [name of plaintiff] consented to [describe the alleged invasion of privacy], then your verdict must be for [name of defendant].
If you find that [name of plaintiff] did not consent to [describe the alleged invasion of privacy], then your verdict must be for [name of plaintiff].
Contact an Arizona privacy, defamation and false light law firm
If you feel you may have a case of false light, call us to discuss your case at (877) 276-5084 or email us through our contact form.