Under Construction Journal Issue 6.1 UNDER CONSTRUCTION JOURNAL 6.1 | Page 44

“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; and 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.”
Based on this article, liability under false light must successfully fulfil the following four elements:
publicity; falsity; highly offensiveness; and malice. The first burden of proof relates to the form in which
an invasion of privacy takes place: false light tort must reach the public at large through publicity,
regardless of the form of communication (whether oral, written or otherwise), to constitute an actionable
invasion of privacy. The mere publication of information by the defendant to a single person or a small
group of persons cannot qualify as publicity; that is, it does not meet the threshold of reaching a large
enough public to consider specific dissemination of information as a false light. English privacy law, by
contrast, considers unauthorized communication of private information, even that between defendants
and a small group, as a misuse of private information.
Secondly, the falsity of publicity is the subject matter of false light’s invasion of privacy, even though
such false information does not correspond to the claimant’s private life. This falsity requirement has a
significant role in determining the existence of other requirements relating to false light; the degree of
falsity may not only increase or decrease the probability of the statement’s offensiveness but also reflect
the likelihood of actual malice with which the statement was made. Such a requirement, however, is
completely inconsistent with English privacy law’s foundation upon the private nature of information in
question where truth or falsity, as Longmore LJ emphasised, are irrelevant:
“The question in a case of misuse of private information is whether the information is private,
not whether it is true or false. The truth or falsity of the information is an irrelevant inquiry in
deciding whether the information is entitled to be protected and judges should be chary of
becoming side-tracked into that irrelevant inquiry.”
Thirdly, the falsity made by the publicity is insufficient to constitute false light unless such falsity is
adjudged to be highly offensive to a reasonable person. The highly offensive test requires significant
misrepresentation of the claimant's character, history, beliefs or activities to have been caused by the
false publicity. On this point, English law makes it clear that publication of falsity itself is unable to give
rise to a privacy invasion unless such publication engages a reasonable expectation of privacy. In Campbell
35