Under Construction Journal Issue 6.1 UNDER CONSTRUCTION JOURNAL 6.1 | Page 46

disregard as to the falsity of the matter publicised and the false light in which the other would
be placed but was negligent in regard to these matters.”
English false privacy has no similar requirements and the defendant’s state of mind has nothing to do with
establishing the elements of privacy action. It is obvious that the elements of defamation law in American
jurisdiction directly influence such requirements simply because falsity has to be proved by the claimant
in American defamation law whereas falsity is legally presumed in English defamation law. However, it is
germane to note that there exists a judicial tendency to bring defamation restrictions (defences) into
privacy law; nevertheless such issues are beyond the scope of this article.
False light has been a subject of significant criticism in the literature due to the overlap with
defamation law. Bruce A. McKenna, for instance, argues that false statements, in order to be highly
offensive, ought to be relevant to private life; otherwise, it would be difficult to be defined as a breach of
privacy right. Moreover, McKenna also highlights that there may be an inconsistency between falsity and
privacy since, in the case of a matter being false, it might be judged illogical that an individual be aware
of its existence and hence have a desire to keep such matters private. However, if false light is only
predicated upon falsity, false light would, as McKenna stressed, have the same function of rectifying
defamation; namely, protecting reputational interest in what constitutes a divergence from the goals of
privacy. Thus, there is a distinct possibility of functional overlap between false light and defamation due
to the fact that defamatory statements, which by their nature hold a person up to hatred, ridicule, or
contempt, would also be highly offensive to a reasonable person of ordinary sensibilities.
Despite the noticeable structural differences between false light and false privacy, both torts have
been exposed to similar challenges within the literature. These call for truth to be removed from the
territory of privacy in order to retain the coherence of defamation and privacy. However, there is also
another school of literature defending the existence of false light and advancing important arguments
which could also defend, as this article argues, the conceptual basis of false privacy.
Protecting the core values of privacy, reducing falsity and increasing press credibility arguments
The justification for using false light to address the invasion of privacy depends upon respective doctrinal
and conceptual arguments. The doctrinal argument emphasises defamation law’s inability to provide
adequate protection against false publications pace false light. Defamation law only protects reputational
interest from inaccurate and disparaging publications, whereas false but non-defamatory publications
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