United States: Third Circuit Attempts To Untangle Defamation And False Light Invasion Of Privacy

Last Updated: March 4 2014
Article by David A. Kluft

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In Graboff v. American Academy of Orthopedic Surgeons, the Eastern District of Pennsylvania found that the defendant's statement was not defamatory but was a false light invasion of privacy ("false light"). The defendant appealed on the grounds that such a ruling was inconsistent as a matter of law. On February 20, 2014, the Third Circuit finally weighed in on the matter.

Pop Quiz: Defamation v. False Light

But before we get to the result, a pop quiz on defamation and false light: Apart from their distinct historical origins (the former derived from ancient common law and the latter from an 1890 article co-authored by Louis Brandeis), what is the practical difference between them?

Need a hint?  Here is a comparison of the elements from a 2008 Florida Supreme Court opinion:

Defamation

(1) A false statement

(2)   Published by the Defendant

(3) About the Plaintiff

(4) With the requisite intent

(5) That harms the Plaintiff's reputation in the eyes of an average community member

(6) And that causes actual damages

False Light

(1) A false statement

(2) Published by the Defendant

(3) About the Plaintiff

(4) With the same requisite intent

(5) That is highly offensive to a reasonable person

(6) And that causes actual damages

Pencils down.  The answer to the question is: not much.

A Theoretical Distinction Without a Practical Difference?

In fairness, one can point to a few arguably material distinctions.  First, a defamatory remark need only be published to a single third person, while a false light statement must be communicated to a wider audience.  Second, false light is in theory broader, because a statement could be "highly offensive" but not cause reputational harm.  Third — and this was Brandeis' justification — while defamation is supposed to redress the reputational harm caused by a statement, false light is supposed to redress the emotional harm caused by the same statement.

But about ten states (including Massachusetts and New York) nevertheless refuse to recognize false light as a separate cause of action, in large part because these theoretical distinctions have little practical use. The Colorado Supreme Court, in Denver Publishing v. Bueno, held that any difference between the two rested on "a too subtle distinction between an individual's personal sensibilities and his [] reputation."  The Florida Supreme Court, in Jews for Jesus v. Rapp, declared that false light was so redundant that it was impossible to locate a case where defamation liability had been rejected but false light liability upheld.

So did the Graboff case change all that?  Almost, but not quite.

Graboff v. AAOS

Dr. Steven Graboff is an orthopedist and professional expert witness. In 2009, the American Academy of Orthopedic Surgeons (AAOS) issued a press release announcing the suspension of Dr. Graboff's membership on the grounds that he had written an untruthful expert report in a malpractice case. Although everything in the AAOS press release was technically true, it omitted key mitigating facts, including that Dr. Graboff's expert report was a mere draft that was altered and released without his consent.

In 2010, Dr. Graboff brought suit against the AAOS for both defamation and false light. At trial, the District Court instructed the jury on the elements of the two causes of action, and that a statement could be "false" either because it was literally untrue or because it implied an untrue meaning. The jury was then asked to answer the following interrogatories:

1. Did the AAOS make a false statement?

2. Did the AAOS portray Dr. Graboff in a false light?

The jury answered "no" on question one but "yes" on question two. So the District Court dismissed Dr. Graboff's defamation claim and issued judgment in favor of Dr. Graboff on his false light claim. But on appeal, AAOS argued that this decision was hopelessly confused. Because both defamation and false light require the element of falsity, the jury's answer to question one should have ended the matter and foreclosed both causes of action.

The Third Circuit agreed that the verdict was discombobulated, but disagreed as to why. According to the Third Circuit, the jury probably confused false light with implied falsity. The jury meant to find that the AAOS press release was literally true but impliedly false, and therefore surely meant to find that AAOS was liable for both defamation and false light on a theory of implied falsity. AAOS requested that the matter be remanded just to make sure, but the Third Circuit refused, satisfied that it had cleared everything up and no harm was done.

So, we still don't have a substantive appellate decision in which defamation is rejected but false light survives. We do, however, have more evidence that the distinction between the two torts is confusing even for lawyers and judges. Imagine how the jury must have felt.

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