In the first three installments of this series, we discussed the invasion of privacy torts of intrusion, disclosure, and appropriation, as well as the closely related right of publicity. Here we’ll round out our discussion of privacy with the tort of false light invasion of privacy and the related defamation torts of libel and slander. In an upcoming related series, we’ll talk about how superheroes can use copyright and trademark law to manage the use of their name and likeness.
I. False Light
False light invasion of privacy is based on the injury to a person’s dignity caused by presenting them in public in a false light, for example, falsely linking someone to a controversial issue (e.g. using a picture of a non-drug-using plaintiff to illustrate a news story about drug use). In the comic book context, an example might be a news story about “superheroes who have gone too far” illustrated with a picture of a mild-mannered superhero who had never hurt anyone. The news story falsely links the superhero with the misuse of superpowers.
False light is a relatively new tort, but it has been adopted by a majority of jurisdictions. West v. Media General Convergence, Inc., 53 S.W.3d 640, 644 (Sup. Ct. Tenn. 2001). Most states have adopted the definition from the Restatement (Second) of Torts:
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.
Note that many jurisdictions have held that mere negligence is sufficient if the victim is not a public figure, but in this case most superheroes are public figures, so knowledge of or reckless disregard of falsity is required. Examples of false light highly offensive to a reasonable person and potentially applicable here include drug use, teen-age crime, police brutality, and organized crime. News stories or other publicity that falsely connect a superhero to such things could give rise to a false light case.
Before we move on to defamation, I should mention two points about false light invasion of privacy that distinguish it from defamation. First, false light does not require an out and out accusation. It is sufficient that the false connection be drawn and that the defendant act with knowledge or reckless disregard for that connection. Second, false light protects injury to a person’s dignity, not their reputation.
II. Defamation (Libel and Slander)
Most people are familiar with libel and slander, the two main species of defamation, which really only differ according to the mode of communication. The elements of defamation, according to the Restatement are:
(a) a false and defamatory statement concerning another;
(b) an unprivileged publication to a third party;
(c) fault amounting at least to negligence on the part of the publisher; and
(d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.
Let’s break that down. First, the statement must be both false and defamatory. “A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” One can see how this could apply to superheroes. Certainly a statement that deterred fellow superheroes from working with a superhero or that made people reluctant to seek out or accept a superhero’s aid would be defamatory.
Second, a third person must be told. It’s not defamation to think mean things about another person or even to tell them to their face, so long as no one else hears. Broad publication is not necessary, however, though the broader the publication the greater the damage, in general.
Third, the required fault depends on the person being defamed. If it’s a public figure, such as a superhero or a famous secret identity like Bruce Wayne, then the First Amendment requires a higher standard than negligence: knowledge of falsity or reckless disregard of the truth or falsity of the statement. New York Times, Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). Defamation of a private figure requires only negligence.
The fourth requirement goes to the issue of damages. “Special harm” means actual economic losses (e.g. losing a job or customers). But some kinds of defamation are so bad that damage is presumed. Traditional examples include accusations of criminal activity, sexual misconduct, loathsome disease (usually STDs, but one could imagine extending it to false accusations of being a mutant or otherwise atypical), dishonesty, and accusations that affect one’s business or trade. Certainly an accusation that a superhero is behaving criminally or being dishonest would fit, as would examples of a disaster or attack being the fault of a superhero rather than the supervillain who actually caused it. An essentially full-time superhero or a superhero that accepted rewards would have an argument for defamation in cases of accusations that affect his or her heroic activities.
Unless the plaintiff can show special harm (i.e. actual economic damage), then the measure of damage in a defamation case is the damage to the plaintiff’s reputation. Since reputation is very important to a superhero (nobody wants to be rescued by a creep), the ability to sue people for defamation may be an important tool for maintaining one’s reputation. However, lawsuits are public, and suing someone for defamation can bring unwanted and lasting attention, an example of the Streisand Effect.
False light and defamation suits can be used after-the-fact to seek compensation for false implications and accusations that harm a superhero’s dignity or reputation. However, a court cannot force a defamer to publish a reply from the victim. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). And it is likely that a court cannot force a defamer to print a retraction or correction, either. Given those limitations, superheroes should weigh carefully whether a lawsuit is worth it.