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Denver Publishing Co. v. Bueno9/16/2002
716 (2000) (" his Note will attempt to supply the considerations missing from these decisions [rejecting false light] and demonstrate the need for a false light tort."); J. Thomas McCarthy, The Rights of Publicity and Privacy, ยง 5.12 , at 5-135 (1996) (" courts have yet to draw a clear and distinct line between this category of `privacy' and that of defamation law."); Gary T. Schwartz, Explaining and Justifying a Limited Tort of False Light Invasion of Privacy, 41 Case W. Res. L. Rev. 885, 886 (1991) ("The current challenge to the false light doctrine is quite welcome."); Diane Leenheer Zimmerman, False Light Invasion of Privacy: The Light That Failed, 64 N.Y.U. L. Rev. 364, 452 (1989) (" he wiser course may be for states to eliminate false light altogether.").
The primary objection courts level at false light is that it substantially overlaps with defamation, both in conduct alleged and interests protected. Additionally, to the extent it does differ from defamation, its parameters remain largely undefined. As a result, legal scholars are concerned that such an amorphous tort risks chilling fundamental First Amendment freedoms. Indeed, Prosser himself, in the very same article where he described the four invasion of privacy categories, aptly described the defamation/false light tension:
The question may well be raised, and apparently still is unanswered, whether this branch of the tort [false light] is not capable of swallowing up and engulfing the whole law of public defamation; and whether there is any false libel printed, for example, in a newspaper, which cannot be redressed upon the alternative ground. If that turns out to be the case, it may well be asked, what of the numerous restrictions and limitations which have hedged defamation about for many years, in the interest of freedom of the press and the discouragement of trivial and extortionate claims? Are they of so little consequence that they may be circumvented in so casual and cavalier a fashion?
William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 401 (1960).
Defamation actions may lie for published or publicly spoken statements, in the forms of defamation by libel or defamation by slander, respectively. Black's Law Dictionary 417 (6th ed. 1990). We consider defamation by libel because, as does invasion of privacy by false light, this tort specifically addresses defamation by the written word. Id. at 417, 601. Defamation by libel may be defamatory per se when the statements are recognized as inherently injurious to reputation. Id. at 417. Alternatively, statements are defamatory per quod when extrinsic facts are necessary to illustrate their libelous nature by way of innuendo. Id. Because our principal concern with the tort of false light lies in its overlap with defamation, we now compare defamation and false light in terms of conduct and interests protected to examine whether Colorado stands to benefit from including false li
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