In 2019, Ontario recognized “publicity which places an individual in a false light” – the “false light tort” – as a part of the common law. Despite its relatively straightforward definition, the false light tort remains puzzling due to its ambiguous parameters, unique elements, and potential utility. This blog post aims to shed some light on the false light tort, looking at its origins, its differences from defamation, and its potential future in privacy litigation.
The Birth of False Light Tort in Ontario
The first notable mention of the false light tort in Ontario was in the 2012 decision of the Court of Appeal for Ontario, Jones v Tsige. The court drew upon the work of renowned US law professor William L. Prosser to recognize the common law privacy tort of “intrusion upon seclusion.” The court didn’t formally recognize the false light tort, but referenced it as a potential cause of action within Prosser’s “four-tort catalogue.”
Fast forward to 2019, the last of Prosser’s torts – the false light tort – was recognized in the case of Yenovkian v Gulian, an atypical family law case with a mix of family law issues and multiple civil causes of action against the father for his extraordinary cyber-bullying. The court found the father guilty of making several false allegations about the mother, spreading these allegations online, and causing distress. This led to the recognition of the false light tort in Ontario, awarding the mother $100,000 in damages for “invasion of privacy.”
While Ontario took the lead in recognizing the false light tort, no other Canadian jurisdiction has yet to adopt it. (For example, as of the date of this blog, some of the recent extra-provincial case law on this tort includes ES v. Shillington (Alberta), Durkin v. Marlan (B.C.), Roque v. Peters (Manitoba), Candelora v. Feser (Nova Scotia), S.B. v. D.H. (Saskatchewan).)
Nonetheless, although the American treatment of this tort isn’t the subject of this blog, the false light tort has been available in numerous American jurisdictions for decades.
This is Not Defamation
A fundamental challenge regarding the false light tort is whether it serves a distinct and valuable purpose apart from defamation. While the two torts indeed overlap, there are four key distinctions.
Firstly, the two torts aim to protect different interests: defamation guards an individual’s reputation, whereas false light protects an individual’s privacy. Secondly, false light requires a plaintiff to prove falsity, which isn’t a requirement for defamation. Thirdly, while defamation is a strict liability tort, the false light tort necessitates an element of intentionality or recklessness from the defendant. Finally, the two torts differ in their requirement of information dissemination: defamation requires publication, while the false light tort requires publicity.
Shedding Further Light into the False Light Tort
To understand the false light tort better, look at its elements: publicity, falsehood, identification of the plaintiff, offensiveness to the reasonable person, and knowledge or reckless disregard as to falsity. The publicity requirement is met by disseminating information to a large number of people, falsehood needs to be proven by the plaintiff, the plaintiff needs to be identifiable in the defendant’s representation, the misrepresented information must be highly offensive to a reasonable person, and the defendant must have acted with knowledge or recklessness.
Defences for the false light tort are similar to those in defamation suits. Absolute privilege defences, including consent, apply to privacy torts, and conditional privilege defences are also applicable, unless the plaintiff can prove malice or bad faith on the defendant’s part.
False Light and Defamation: Similar but not Identical
Despite their differences, false light and defamation do overlap in two main areas. First, American jurisprudence suggests that the same defences to defamation will likely apply to the false light tort. Secondly, the two torts share the approach to calculating general damages.
The introduction of the false light tort in Ontario provides individuals with an added layer of protection against being wrongfully portrayed in a manner that is highly offensive. This legal avenue affords people the ability to fight back against false publicity that may tarnish their image or infringe on their privacy.
Predicting the Future of False Light Tort
The future of false light tort in Ontario, and perhaps across Canada, is somewhat uncertain. As it stands, no other Canadian jurisdiction has expressly adopted this tort. However, some provinces with statutory “invasion of privacy” torts may be more receptive to its potential use.
Globally, the false light tort remains largely unrecognized. It has yet to be officially accepted in other Commonwealth jurisdictions such as New Zealand, Australia, and the United Kingdom. Yet, it is a common cause of action in many American states, indicating its potential for broader acceptance over time.
In the end, the future of the false light tort may be shaped by how effectively it can be applied in cases of online defamation, harassment, and other internet-related disputes. With the growing incidence of online cyberbullying and other forms of online misrepresentation, the false light tort could serve as a tool for protecting individuals’ privacy rights.
Conclusion: The Importance of Understanding False Light
Whether you’re a business owner, private individual, or legal professional, understanding the implications of false light is important in today’s hyper-connected world. The rise of social media and digital communication platforms has drastically increased the risk of being placed in a “false light.” As a result, it is more important than ever to be aware of the legal options available to protect your privacy and reputation.
The recognition of the false light tort in Ontario represents a significant step towards offering people protection against harmful and offensive misrepresentations. Its existence reinforces the notion that privacy is a fundamental right, one that is vital in preserving individual dignity and autonomy.
The false light tort provides an additional legal remedy for those whose privacy has been invaded through the widespread dissemination of false information about them. While its future and the extent of its adoption remain uncertain, this tort serves as an essential recognition of the need to protect individual privacy in the age of digital communication and misinformation.
In this rapidly evolving legal landscape, it is advisable to seek legal counsel (like us) if you believe you have been a victim of false light publicity. Understanding your rights and the remedies available to you is the first step towards ensuring that your privacy is duly respected and protected.
Example: Kaur v. Virk
Rashpinder Kaur sued Harvinder Virk (Taajveer Virk) for defamation or placing her publicly in a false light, seeking damages of $150,000. Virk, who was noted in default for not filing a defence, is alleged to have misrepresented her relationship with Kaur’s husband, Sadioura, in a TikTok video, refused to remove the video despite requests, filed a baseless police complaint against Kaur, and posted defamatory content about Kaur on social media.
Despite Virk being in default, Kaur was required to prove her claim through an uncontested trial, following which the court awarded Kaur general and special damages based on her evidence, including affidavits and oral testimony. The court, however, didn’t award the full amount sought due to insufficient evidence supporting all claims.
In the proceedings, the court emphasized the need for Kaur to prove defamation and the tort of portraying someone in a false light as defined by Canadian Jurisprudence, citing relevant case laws. It was determined that while not all videos were defamatory in a strict sense, it was reasonably foreseeable that they could place Kaur in a false light.
Kaur was awarded $5,000 for general damages for false publicity and $30,390 for special damages due to loss of income, but she failed to secure damages for the prospective loss of a higher-paying position due to insufficient evidence. No aggravated or punitive damages were granted, and Kaur was awarded $3,963.26 in fees and $1,814 in disbursements for costs on a substantial indemnity scale. The court found Virk’s actions in posting the video, either knowing it to be false or reckless as to its truthfulness, to be egregious conduct.