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Denver Publishing Co. v. Bueno9/16/2002
d the communication), and the definitional distinction between "defamatory" and "highly offensive," the elements are identical.
Thus, it comes as no surprise when commentators generally agree that in cases in which alleged conduct will support a false light claim, the same conduct will also support a defamation claim. Even the Restatement concedes:
In many cases to which the rule stated here [false light] applies, the publicity given to the plaintiff is defamatory, so that he would [also] have an action for libel or slander . . . . In such a case the action for invasion of privacy will afford an alternative or additional remedy, and the plaintiff can proceed upon either theory, or both, although he can have but one recovery for a single instance of publicity. Restatement (Second) of Torts § 652E cmt.b (1976). See also Sullivan v. Pulitzer Broad. Co., 709 S.W.2d 475, 480-81 (Mo. 1986) (disallowing false light when facts amounted to nothing more than a restatement of a statutorily barred defamation claim).
In sum, the similarities far outweigh the differences between the two torts and the act of publicizing a falsity, when done with actual malice, will give rise to one or both torts. It is only with resort to the effect of the publication, i.e., the "interests protected," as will be discussed next, that a difference of significance emerges. In terms of actionable conduct, however, the two torts target substantially similar behavior.
C. Interests Protected
Privacy torts protect one's right "to be let alone." Thomas M. Cooley, A Treatise on the Law of Torts, 29 (2d ed. 1888). In false light terms, Prosser describes such "right" as "a person's interest in being let alone" in instances where there "has been publicity of a kind that is highly offensive." Prosser and Keeton, Torts, § 117, at 864 (5th ed. 1984). "Highly offensive" is the element of false light that distinguishes it from defamation. A defamation claim requires a showing that the publication damaged the plaintiff's reputation in the community. False light requires no such showing. Rather, false light requires a showing that the publication is highly offensive, but need not have damaged that plaintiff's reputation in the community. The theory is that a publication could be highly offensive to an individual without meeting the standard of lowering that person's reputation in the community, a standard required by defamation law. Bolduc v. Bailey, 586 F. Supp. 896, 900 (D. Colo. 1984) ("The gravamen of an action for defamation is the damage to one's reputation in the community caused by the defamatory statement(s)."). If the statement did lower the person's reputation, it would clearly be actionable as defamation. If it did not, then, and only then, would there be a need for a false light tort that was not coextensive with defamation. In sum, defamation protects individuals from (public) offense, but only false light wil
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