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Denver Publishing Co. v. Bueno9/16/2002
wo of a multitude of characterizations that were utterly false and embarrassing to plaintiff).
We acknowledge the potential for precluding such claims, but we are convinced that those scenarios represent a decidedly narrow band of cases. If the published statement insults and disparages the plaintiff, he will quite naturally suffer shame and humiliation because those that read the falsity will view him differently, and defamation will properly lie. Colorado's defamation law compensates plaintiffs for "personal humiliation, mental anguish and suffering." CJI-Civ. 4th 22:13. If, however, the published intimate details are true, then "disclosure" is the proper cause of action. Should the publication take plaintiff's likeness and use it for pecuniary gain, the tort of appropriation provides relief. And there remains the tort of intentional infliction of emotional distress/outrageous conduct for offensive publications in which the defendant engaged in "extreme and outrageous conduct, recklessly or with the intent of causing the plaintiff severe emotional distress," provided the plaintiff actually incurs severe emotional distress as a result of the defendant's conduct. McKelvy v. Liberty Mut. Ins. Co., 983 P.2d 42, 44 (Colo. App. 1998). The great majority of the scenarios proffered above would support a cause of action under one of these alternative theories. We therefore believe that the highly offended plaintiff is adequately protected by existing remedies.
I. Constitutional Implications
Our decision today to reject false light in Colorado reflects not only caution with respect to adopting new torts, but also our recognition that the tort implicates First Amendment principles. Freedom of the press is a critical part of our constitutional framework. We must weigh torts in this area carefully against the infringement they represent upon freedom of the press.
Although we, as readers or viewers of the news, sometimes regret excesses or empathize with individuals whose unfortunate plights are exploited, we nonetheless rely heavily upon open and full disclosure.
Because tort law is intended both to recompense wrongful conduct and to prevent it, it is important that it be clear in its identification of that wrongful conduct. The tort of false light fails that test. The sole area in which it differs from defamation is an area fraught with ambiguity and subjectivity. Recognizing "highly offensive" information, even framed within the context of what a reasonable person would find highly offensive, necessarily involves a subjective component. The publication of highly offensive material is more difficult to avoid than the publication of defamatory information that damages a person's reputation in the community. In order to prevent liability under a false light tort, the media would need to anticipate whether statements are "highly offensive" to a reasonable person of ordinary sensibiliti
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