The four invasion of privacy torts are well known to lawyers and law students: (1) appropriation; (2) intrusion upon seclusion; (3) public disclosure of private facts; and (4) false light. The last tort is infamous among the states as many states have either rejected the tort or have yet to recognize it as a separate cause of action. Ten states have rejected the claim of false light, including Colorado, New York, North Carolina, and Virginia.[1] Eleven states have yet to recognize the tort, including South Carolina.[2]The various states have their reasons as to why they have rejected the tort or have failed to recognize it. However, to understand these reasons, one must know what false light is, including its origins, the elements that comprise the tort, and its status within multiple states.
The Origins of False Light
In the 1950s, esteemed Harvard Law professor William Prosser wrote several law review articles and published lectures about invasion of privacy torts. Prosser recognized false light as a separate privacy tort in 1954 due to the rise in defamation-like cases.[3] In his writings about invasion of privacy torts, he defined false light as “publicity that places the plaintiff in a false light in the public eye.”[4] Prosser saw a litany of comparisons with defamation when he explained there is a substantial overlapping of defamation in false light cases. Prosser ended this comparison by stating that false light gives the plaintiff a remedy when a defamation claim fails or insufficiently redressed the plaintiff.
What is False Light?
Despite its similarity with defamation, false light is comprised of different criteria. The Restatement of Torts’ two-prong test is (1) the false impression would be highly offensive to a reasonable person, and (2) the actor knew the impression was false or acted with a reckless disregard as to the falsity of the publicized matter and the false light in which the victim would be placed.[5]
The falsity can also occur through the omission or amplification of certain facts. This concept is explained in the Tennessee case of Eisenstein v. WTVF-TV, News Channel 5 Network: “The facts may be true in a false light claim. However, the angle from which the facts are presented, or the omission of certain material facts, results in placing the plaintiff in a false light.”[6]
As for the fault standard, jurisdictions are split after the Gertz decision in 1974. Some jurisdictions mimic defamation cases where the plaintiff has to be categorized as a public figure, public official, or private figure, and that if the plaintiff is a private figure, he/she must prove the defendant acted with, at least, negligence. However, other jurisdictions follow the “actual malice or reckless disregard for the truth” standard, regardless of the plaintiff’s status.[7]
False Light in South Carolina
As previously stated, South Carolina has yet to recognize false light. To some privacy-law scholars, this might seem strange since South Carolina is one of the few states to have a right to privacy in its constitution.[8] The issue of recognition first arose in the 1981 case of Todd v. S.C. Farm Bureau Mut. Ins. Co., where allegations of public disclosure of private facts and false light were combined into a single cause of action. [9]
There were a handful of cases in the 1980s and 1990s that mentioned false light in the state.[10] In 1997, the South Carolina Court of Appeals, in the case of Brown v. Pearson, finally recognized the lack of recognition given to the tort: “As to Appellants’ claim of ‘false light,’ no South Carolina case has recognized this tort.”[11]
The false light issues continued in South Carolina into the new millennia as several plaintiffs attempted to bring a false light claim.[12] Again, the courts never addressed whether they should recognize the tort; instead, they dismissed the claim due to previous courts not accepting it. Recently, in 2022, the issue arose again in the case of Wedlake v. Board of Directors of Woodington Homeowners’ Association, Inc. where the court, again, failed to accept or reject the tort.[13] After the decision in Wedlake, South Carolina has entered another decade of failing to recognize false light and remains secluded from the majority of the twenty-nine states that accept it.
Conclusion
Despite the uncertain and ominous future of the tort in South Carolina, there is hope: recognition of the tort would be beneficial to plaintiff’s privacy rights and would be consistent with the right to privacy within the state’s constitution. Until the fateful day the South Carolina courts decide to accept or reject false light, the infamous invasion-of-privacy tort will remain shrouded in controversy and South Carolina will remain in the group of states that fail to determine the tort’s status.
References
[1] Wendy Tannenbaum, A Recent Decision Calls False Light Outdated, REPORTERS COMMITTEE (last visited Feb. 5, 2023), https://www.rcfp.org/journals/the-news-media-and-the-law-fall-2002/recent-decision-calls-false-l/.
[2] Id.
[3] William Prosser, Selected Topics on the Law of Torts, 119 (1954) (publication of 1953 lectures).
[4] William L. Prosser, Privacy, 48 CAL. L. REV. 383 (Aug. 1960).
[5] RESTATEMENT (SECOND) OF TORTS § 652E (1976).
[6] Eisenstein v. WTVF-TV, News Channel 5 Network, 389 S.W.3d 313 (Tenn. Ct. App. 2012).
[7] See Cantrell v. Forest City Publishing Co., 419 U.S. 245 (1974).
[8] S.C. CONST. art. I, § 10.
[9] Todd v. S.C. Farm Bureau Mut. Ins. Co., 276 S.C. 284 (1981).
[10] See DeLoach v. The Beaufort Gazette, 281 S.C. 474, 476, (1984); Parker v. Evening Post Pub. Co., 317 S.C. 236, 246 n. 5 (S.C. Ct. App. 1994).
[11] Brown v. Pearson, 326 S.C. 409 (S.C. App. 1997).
[12] See, e.g., Moosally v. W.W. Norton & Co., Inc., 358 S.C. 320 (S.C. Ct. App. 2004); Erickson v. Jones Street Publishers, LLC., 368 S.C. 444 (S.C. 2006); Wedlake v. Board of Directors of Woodington Homeowners’ Association, Inc., 2022 WL 1238303 (S.C. Ct. App. 2022).
[13] Wedlake v. Board of Directors of Woodington Homeowners’ Association, Inc., 2022 WL 1238303 (S.C. Ct. App. 2022).
Addison “Oz” Osborne
3L Senator, Student Bar Association
Research Fellow, Sol Blatt, Jr. Law Library
Social Chair, Second Amendment Association
Juris Doctor Candidate, May 2023, Charleston School of Law
The Barrister 