Lawyers review non-fiction content to try to avoid legal claims against the producer, distributors, exhibitors and broadcasters.  And the errors and omissions insurer requires it.  Vetting usually happens at the rough-cut stage so that both the total arc as well as small details – like how one statement bears on another in juxtaposition – have coalesced.

This vetting focuses on potential claims related to defamation (injury to reputation), copyright (especially fair use) and infringement of privacy rights, which breaks down into four subcategories:  public disclosure of embarrassing private facts; appropriation of a name or likeness; intrusion upon seclusion or solitude or into private affairs; and today’s subject, publicity that places someone in a false light.

For a plaintiff to succeed with a false light claim, she generally must show that a false statement, representation, or imputation about her was publicized, portrayed her in a way that a reasonable person would find highly offensive, and resulted in humiliation and mental distress.

False light invasion of privacy as the basis for a legal claim is recognized in many but not all states.  Some states have rejected it because of perceived overlap with defamation, even though in false light invasion of privacy, injury to a person’s dignity is addressed rather than injury to reputation.  The difference between injury to dignity and injury to reputation is not always clear-cut, but here are some examples of what might humiliate without necessarily doing harm to reputation:

• showing a photo of a 96-year-old woman next to a headline about quitting work due to pregnancy;
• a false report that a man was mentally and physically abused by a criminal during a home invasion;
• a magazine cover with a full-page photo of a bare-chested man with text suggesting falsely that nude photos of him could be found inside;
• editing an interview to show an interviewee staring blankly into space in response to a question, when in reality, the interviewee gave an answer (see our DocumentaryToolkit article that discussed an unsuccessful defamation claim rather than portrayal in a false light).

Some of the same key defenses enjoyed by U.S. media under the First Amendment also apply to false light.  For example, the falsity of a statement about a private person would have to result from negligence to be actionable, and a statement about a public figure would have to be made with “actual malice,” which is knowledge of falsity or reckless disregard for truth or falsity.