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Brief Summary: Libel is a recognized claim under Tennessee law and truth is a defense to a libel claim. False light invasion of privacy is a recognized claim under Tennessee law where truth is not a defense. As a result, one can be held liable for making a statement that gives an offensive impression about another in a false light even if the statement is technically true.
Analysis: The recent Tennessee Court of Appeals decision of Daniel B. Eisenstein v. WTVF-TV, News Channel 5 Network, LLC, M2011-02208-COA-R3-CV, 2012 WL 3090307 (Tenn. Ct. App. July 30, 2012) provided a great discussion on the torts of libel and false light invasion of privacy. This is an interesting case that has received some media attention due to the subject matter. Specifically, Davidson County General Sessions Court Judge Daniel Eisenstein brought a claim against News Channel 5 Network in Nashville, Tennessee asserting that News Channel 5 committed libel and false light invasion of privacy in two news stories that were completed in 2010 and 2011. Eisenstein at 1. This case is certainly interesting reading, however, the details of the case are not important for this post. I would, however, encourage anyone who is interested in these types of claims to read the full lengthy opinion.
There is a broad category of torts in Tennessee referred to as defamation. Defamation includes libel, slander, false light invasion of privacy and other causes of action. Libel is simply a form of the broader category of defamation. Generally, libel involves a written defamation. Eisenstein at 1. News broadcasts "should be considered libel; particularly if they are based on written scripts." Eisenstein at 1. (quoting Ali v. Moore, 984 S.W.2d 224, 227 (Tenn. Ct. App. 1998)).
In order to establish a prima facia case of defamation (usually slander or libel) the plaintiff must prove the following elements:
(1) a party published a statement; (2) with knowledge that the statement was false and defaming to the other; or (3) with reckless disregard for the truth of the statement or with negligence in failing to ascertain the truth of the statement.
Eisenstein at 1. (citing Hibdon v. Grabowski, 195 S.W.3d 48, 58 (Tenn. Ct. App. 2005)). Further, the defamation must result in injury to the person. Eisenstein at 1.
The second tort that is discussed in this case is "false light invasion of privacy." The Tennessee Supreme Court has adopted the definition for this tort provided by the Restatement (Second) of Torts § 652E (1977). The definition of false light invasion of privacy is as follow:
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if:
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
Eisenstein at 2. (See West v. Media Gen. Convergence, Inc., 53 S.W.3d 640, 643-44 (Tenn. 2001)). It is important to note that when the individual is a public figure such as Judge Daniel Eisenstein then a claim for false light invasion of privacy requires actual malice. West at 647.
One significant difference between libel and false light invasion of privacy claims is that in a libel case, truth is a defense to the claim. See Memphis Pub. Co. v. Nichols, 569 S.W.2d 412, 420 (Tenn. 1978). However, under a false light invasion of privacy claim, literal truth is not a defense and instead, the question is whether "the defendant made discreet presentations of information in a fashion which rendered the publication susceptible to inferences casting the plaintiff in a false light.” West at 645 (footnote 5). As a result, a claim for false light invasion of privacy may actually pertain to technically true statements, however, the manner in which the statements were conveyed applies a false impression about the full reality of the situation. Eisenstein at 2.
It is certainly important for defense counsel to be aware of the nuances in defamation claims. This case reminds us that truth is not a defense to a false light invasion of privacy claim. As a result, when statements are made, even if they are technically true, they must not present a false offensive impression because that can be an actionable claim under Tennessee law.
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