Under Construction Journal Issue 6.1 UNDER CONSTRUCTION JOURNAL 6.1 | Page 47

cannot be subject to libel protection even when such publications would be highly offensive to a
reasonable person. Any suggestion that defamation be expanded to include materials protected by false
light potentially distorts the former doctrines, since there would be an extension of what should be
defamatory. The Restatement of law (second) mentioned such incapacity within defamation law with
regards to covering all false and highly offensive materials, necessitating a different remedy not available
in defamation law. One could argue, therefore, that English defamation law would also be unable to cover
what is false and private information if it is non-defamatory information. In such a scenario, there may be
a strong rationale to support the recognition of false privacy given the harmed party would be otherwise
left without any legal protection against the harmful publications of untruthful information.
The conceptual argument potentially strengthens separate application of false light and false
privacy within their respective jurisdictions because it adds conceptual justifications for protecting an
individual from the dissemination of harmfully incorrect information. Privacy may be breached, as Nathan
Ray rightly argues, in those cases where the publication of false information undermines our self-
determination because such interference may reinforce us either to withdraw from the society or to
confront publicly a misleading image of ourselves. Undermining self-determination through recourse to
false light could affect that which privacy law seeks to promote. Unauthorised false publicity might not
only force an individual into seclusion; it also potentially thwarts the free exchange of ideas and the
formulation of informed decisions based on independent and critical thinking. On that point, Ray agrees
with Ruth Gavison that a flow of false information about an individual may undermine privacy rights
because it affects an individual’s accessibility to others: misrepresentations caused by false information
may limit her ability to decide how to interact with others. Dissemination of false information, whether
highly offensive or not, may undermine our privacy since it represents a harmful interference with our
ability to control the flow of information and hence regulate how the public perceives and responds to us.
Such dissemination may also be a method for invading privacy since it may result in forced revelations of
other private facts a person would rather keep private in order to refute the initial falsehoods. For
instance, if A, who is sterile, is publicly accused of impregnating B, A would lose their privacy when obliged
to reveal his sterility (private information) for the purposes of refuting such false accusations. On that
basis, false light and false privacy may be conceptually founded upon the claimant’s loss of autonomy and
self-determination since under both torts the victim loses his ability to regulate their own affairs and
choose whether or not to share their private information with others. Thus, there is a genuine loss of
privacy under both torts because the victim loses control over their own information irrespective of the
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