The Elements of a False Light Invasion-of-Privacy Claim in Arizona

There are two possible standards for false light invasion of privacy claims.

Primary Standard. The primary standard applies when:

Under those circumstances, the plaintiff must show (i) the defendant, with knowledge of falsity or reckless disregard for the truth, gave publicity to information placing the plaintiff in a false light, and (ii) the false light in which the plaintiff was placed would be highly offensive to a reasonable person in the plaintiff’s position. See Godbehere, 162 Ariz. at 338, 340 (citing Restatement (Second) of Torts § 652E (hereinafter, “Restatement”)). In other words, actual malice must be shown.

Notably, there is a clear-cut rule that a public figure or public official may not bring a false light invasion of privacy claim based on a statement related to the performance of his or her public life or duties. See Godbehere, 162 Ariz. at 343 (“[A] plaintiff cannot sue for false light invasion of privacy if he or she is a public official and the publication relates to performance of his or her public life or duties.”). The reasoning behind this standard is that the public holds a high degree of interest in such affairs. See id.

Secondary Standard. The secondary standard may apply in cases involving non-public figures or where qualified immunity is not at issue. Under these circumstances, the plaintiff must show that:

The Arizona Supreme Court has not explicitly addressed whether a private plaintiff bringing a false light invasion of privacy claim must prove the actual malice element that Godbehere held public figures must prove when bringing false light claims based on statements made about their private affairs. See 162 Ariz. at 342–43.

However, in Advanced Cardiac Specialists, the Arizona Court of Appeals observed that “[n]egligence is the appropriate standard when there has not been any allegation that the plaintiff is a public figure, or that the matter is one of public concern, or that a privilege applies.” 222 Ariz. at 388 (citation omitted). But see Desert Palm Surgical Grp., P.L.C. v. Petta, 236 Ariz. 568, 580 (Ct. App. 2015) (applying actual malice standard to false light claim brought by private plaintiff); Watkins v. Arpaio, 239 Ariz. 168, 173 (Ct. App. 2016) (same).

A statement is “public” if it is communicated to the general public or to a large number of persons, or if it is communicated in a way that it is substantially certain to become a matter of public knowledge. See Hart v. Seven Resorts, Inc., 190 Ariz. 272, 280 (Ct. App. 1997); Restatement § 652E cmt. a.

Arizona law (A.R.S. § 12-541) imposes a one-year statute of limitations on all false light invasion of privacy claims. Therefore, a party must bring a defamation claim within one year upon learning of the false light information being made public. See Watkins v. Arpaio, 239 Ariz. 168, 172–73 (Ct. App. 2016) (applying a one-year statute of limitations to a claim for false light invasion of privacy and concluding there was no actionable statement by the defendant concerning the plaintiff within a year of filing the lawsuit).

“False light invasion of privacy is recognized in Arizona as a tort separate from defamation.” Desert Palm Surgical Grp., P.L.C., 236 Ariz. at 579–80 (citing Godbehere, 162 Ariz. at 340). Although both defamation and false light invasion of privacy involve dissemination of information, the interests protected by each action differ significantly. A defamation claim seeks to compensate damage to reputation caused by the publication of false information. See Reed v. Real Detective Pub. Co., 63 Ariz. 294, 305 (1945). To be defamatory, a publication must generally be false and bring the defamed person into disrepute, contempt or ridicule, or must impeach the plaintiff’s honesty, integrity, virtue or reputation. See Phx. News., Inc. v. Choisser, 82 Ariz. 271, 275–76 (1957).

Privacy, on the other hand, does not seek to protect reputation but protects mental and emotional interests. “The gravamen of [a privacy] action ... is the injury to the feelings of the plaintiff, the mental anguish and distress caused by the publication.” Reed, 63 Ariz. at 305. The remedy is available “to protect a person’s interest in being let alone and is available when there has been publicity of a kind that is highly offensive.” Godbehere, 162 Ariz. at 343 (citation omitted).

Under this theory, a plaintiff may recover even in the absence of reputational damage, as long as the publicity is unreasonably offensive and attributes false characteristics. See id. “However, to qualify as a false light invasion of privacy, the publication must involve ‘a major misrepresentation of the plaintiff’s character, history, activities or beliefs,’ not merely minor or unimportant inaccuracies.” Id. (quoting Restatement § 652E cmt. c).

A second difference between defamation and false light invasion of privacy is the element of truth. To be defamatory, a publication generally must be false — though defamation by implication is recognized in Arizona — and truth is a defense. See Choisser, 82 Ariz. at 275–76. Meanwhile, “[a] false light cause of action may arise when something untrue has been published about an individual or when the publication of true information creates a false implication about the individual.” Godbehere, 162 Ariz. at 341 (citation omitted). In the latter type of case, “the false innuendo created by the highly offensive presentation of a true fact constitutes the injury.” Id. (citing Restatement § 652E).

A third difference is with respect to “publicity” and “publication.” In Hart, the Arizona Court of Appeals distinguished the terms publication and publicity by explaining that, for purposes of false light, publicity “means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded substantially certain to become one of public knowledge.” 190 Ariz. at 280 (citing Restatement § 652D cmt. a). In contrast, the term “published,” for purposes of defamation, requires only that the statement be communicated to a third party. Id. Thus, with respect to a claim for false light, publication to just a few people is not enough. See, e.g., Xcentric Ventures, LLC v. Brewington, 2011 WL 6747458, at *11 (Ariz. Ct. App. Dec. 22, 2011).

In summary, a false light invasion-of-privacy claim will arise when an individual gives publicity to information that places another in a false light, acts with the requisite degree of fault, and the false light would be highly offensive to a reasonable person.