Wednesday, June 6, 2007

Ohio Supreme Court Recognizes Claim for "False Light" Invasion of Privacy

Historically, Ohio recognizes three separate invasion of privacy torts: (1) the unwarranted appropriation or exploitation of one’s personality, (2) the publicizing of one’s private affairs with which the public has no legitimate concern, and (3) the wrongful intrusion into one’s private activities. Today,the Ohio Supreme Court, in Welling v. Weinfeld, recognized a fourth invasion of privacy theory as a tort in Ohio -- the "false light" theory. In so ruling, Ohio joins the majority of other jurisdictions that have recognized this tort.

Under the false light theory, it is a tort to give "publicity to a matter concerning another that places the other before the public in a false light ... 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." The purpose of this theory is to close a loophole in the defamation laws, which protect reputation in the community by publication of falsehoods. The false light theory, conversely, protects one's own personal sensibilities. By way of example, the Court cited to several examples of conduct that would be actionable as a false light invasion of privacy but not necessarily as defamation, such as falsely portraying someone as a victim of sexual harassment or having a terminal illness. Such false accusations might not damage one's reputation, but nevertheless could cause them harm that is not remedied by defamation law.

While this theory of recovery is new, the lessons to be learned are not. Be very mindful of information that is spread in your workplace and about your employees. Private matters, such as medical information, investigations of misconduct, or other personnel matters, should remain private. Negative job references should rarely be given. These proactive measures will help lessen the risk of claims of this ilk being brought.