Colorado Supreme Court rejects false light claims

COLORADO — Journalists in Colorado gained more protection last week against lawsuits resulting from mistakes in reporting.

In a 4-3 decision by the Colorado Supreme Court Sept. 16, Colorado became just the fourth state to completely reject “false light” invasion of privacy lawsuits. Those seeking reparations for false statements published by the media and others must now sue for libel under the more stringent defamation standard.

Justice Rebecca Kourlis, writing for the majority, rejected the false light tort because “it’s highly duplicative of defamation both in interests protected and conduct averted.” Recognizing a false light legal claim would raise “chilling effects on the First Amendment freedoms,” she added.

The false light claim, which is recognized in 30 states, can arise anytime one unflatteringly portrays — in words or pictures — a person as something that he or she is not. While lumped together with other invasion of privacy suits, it is really more like a libel claim. Both involve complaints based on a false report. The major difference between the two is that a libel complaint requires that the statement in question “defames,” or injures a person’s reputation. A statement in a false light claim, on the other hand, need only be “highly offensive” to a reasonable person.

Publishing offensive material is more difficult to avoid, the court said, than publishing false information that damages a person’s reputation in the community. Media organizations would have to anticipate whether or not material is highly offensive to a reasonable person under “false light.”

“Defamation is measured by its results; whereas false light invasion of privacy is measured by perception,” Kourlis wrote in the majority opinion.

Justice Mary Mullarkey, writing in dissent, said “the court today narrows privacy protections in Colorado and closes an independent avenue of relief available to plaintiffs in 30 other states.” Although the false light tort has never been adopted in Colorado, the court has made consistent references to its existence, Mullarkey added.

“I do not agree that the best solution to overlapping torts is the wholesale elimination of one of the claims,” Mullarkey wrote. “A better solution would be to restrict the damages to plaintiffs raising both false light and defamation claims, thus preventing duplicate awards.”

The courts decision stems from a 1994 story published by The Rocky Mountain News headlined “Denver’s Biggest Crime Family.” The story reported about a family of 18, of which 15 had criminal arrest records.

Eddie Bueno, the oldest of the Bueno children had no criminal record and, according to him, no contact with his family since moving out of his parent’s home at the age of 13. He believed the story implied such criminal history, according to court records.

Although this decision overturns a $106,507 award for damages from a May 1997 trial, Bueno is now awaiting a ruling from the state appellate court establishing whether he can pursue a libel claim.

Read the court decision.