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Denver Publishing Co. v. Bueno9/16/2002
es even though their publication does no harm to the individual's reputation. To the contrary, defamatory statements are more easily recognizable by an author or publisher because such statements are those that would damage someone's reputation in the community. In other words, defamation is measured by its results; whereas false light invasion of privacy is measured by perception. It is even possible that what would be highly offensive in one location would not be in another; or what would have been highly offensive in 1962 would not be highly offensive in 2002. In other words, the standard is difficult to quantify, and shifts based upon the subjective perceptions of a community.
We would all hope that the press considers the impact of publicity upon the individuals involved; we would also hope that the press scrupulously avoids the publication of any false material. However, defamation law adequately proscribes inappropriate conduct in this area and punishes breach with relative clarity and certainty. We are comfortable that existing law adequately protects us from false publications, from cavalier reporting, or from malice.
Conversely, in the limited area in which false light invasion of privacy and defamation are not coextensive, there is ambiguity and subjectivity that would invariably chill open and robust reporting. We purposefully avoid upsetting "the delicate balance that has developed in the law of defamation between the protection of an individual's interest in redressing injury from published falsehoods, and the protection of society's interest in vigorous debate and free dissemination of the news." Fellows v. Nat'l Enquirer, Inc., 721 P.2d 97, 106 (Cal. 1986).
V. Conclusion
Our holding today is a deliberate exercise of caution. We believe false light is too amorphous a tort for Colorado, and it risks inflicting an unacceptable chill on those in the media seeking to avoid liability. The Supreme Court of Texas, in rejecting false light invasion of privacy, observed:
" hatever is added to the field of libel is taken from the field of free debate." While less compelling, these same considerations are also at play in private, non-political expression. Thus, the defamation action has been narrowly tailored to limit free speech as little as possible. Cain v. Hearst Corp., 878 S.W.2d 577, 582 (Tex. 1994) (quoting New York Times v. Sullivan, 376 U.S. 254, 272 (1964) (quoting Sweeney v. Patterson, 128 F.2d 457, 458 (1942))).
Such tailoring has yet to develop in the nascent false light tort, and we are not inclined to become the workshop. When we "take from the field of free debate," we should at the very least know what and how much we are taking. Absent that, we find no benefit to our jurisprudence by adopting the tort of false light invasion of privacy. The tort applies only to a narrow band of cases such that any potential gain in individual protection
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