Beware hidden danger of ‘false light’ claims

By KIM GREENE
KPA General Counsel
Dinsmore & Shohl

At a recent communications law seminar, one of the participants was talking about his newspaper client's litigation experience.

The newspaper had been sued by a local doctor over a news article about that doctor's practice. There were some issues about his Medicaid billings and controlled substance prescriptions. The lawsuit contained two legal claims: a defamation claim and a claim that the news article invaded the doctor's privacy by publicity that unreasonably placed him in a false light before the public (the false light tort). The lawyer had filed a summary judgment motion, asking the court to dismiss both claims.

When the court’s decision came in, the lawyer called the newspaper client with the good news and the bad news.

It seems the court had agreed that summary judgment was appropriate on the defamation
count but refused to dismiss the false light claim. It astonished the client.

“If the article wasn’t defamatory, what in the world is the big deal? Why isn’t this case going away?”

What is this claim of false light invasion of privacy, anyway? How is it different and how is it like a defamation claim?

To answer that question, we’ll revisit a Kentucky Supreme Court decision from 1981, McCall v. Courier-Journal & Louisville Times Co. In that case, a Louisville lawyer named Tim
McCall was contacted by Kristie Frazier about the possibility of representing her in two narcotics-related criminal charges. At around the same time, two Louisville Times reporters (this case is from the old days, isn’t it?) were investigating allegations of harassment of the drug community by narcotics agents and other local police. In the course of their investigation, the reporters interviewed Frazier who told them that McCall had offered to represent her and that part of the fee she paid him would be used to “fix” the cases or to bribe the judge. The Times subsequently published a front page article which described the results of the investigation and quoted Frazier’s allegations of bribery and a “fix.”

When McCall sued, the trial court granted summary judgment on both claims and the Court of Appeals affirmed. The Kentucky Supreme Court, however, took a different view and reversed on both claims.

(Since this column concerns the false light claim, we won’t go into detail about the defamation arguments. One point bears mentioning, though. It is the McCall case in which the Kentucky Supreme Court rejected the doctrine of neutral reportage. That doctrine had been recognized in some other jurisdictions and provided immunity from liability for newspapers which accurately reported “newsworthy statements” regardless of the newspaper’s belief about the truth of the statement. In other words, in those jurisdictions the newspaper could safely quote Kristie Frazier saying that McCall had bribed her and offered to “fix” her case with the judge, so long as the newspaper didn’t endorse that accusation or level the accusation on its own.

The Kentucky Supreme Court unequivocally rejected that doctrine. That’s why Kentucky newspapers need to scrutinize every allegation of wrongdoing, immorality or illegality before it’s published. In the eyes of the law, it didn’t matter whether the Louisville Times or Kristie Frazier — within quotation marks — accused McCall. All that mattered was that the Louisville Times published the accusation. And in the eyes of the law it is no defense to a defamation claim for your newspaper to say, “We didn’t accuse the mayor of embezzling $1 million; Sam Smith did. See? We had it in quotation marks.”)

It was in the McCall case that the Kentucky Supreme Court first recognized the false light branch of invasion of privacy. The Court explained that the purpose of a false light action is to protect the individual from being placed before the public in an unreasonably objectionable false light and otherwise than he is.

To sustain this action, the person need not be defamed. It is sufficient that the publicity attribute to him characteristics, conduct or

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