AMI 423 Issues—Claim for Damages Based Upon False Light Invasion of Privacy

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 423

Arkansas Model Jury Instructions-Civil

December 2023 Update

Arkansas Supreme Court Committee On Jury Instructions-Civil

Chapter 4. Intentional Torts and Defamation

AMI 423 Issues—Claim for Damages Based Upon False Light Invasion of Privacy

(Plaintiff) claims damages from (defendant) for invasion of privacy by publicity which put (plaintiff) in a false light, and has the burden of proving each of five essential propositions:

First, that [he][she] sustained damages; and

Second, that (defendant) gave publicity to a matter concerning (plaintiff) that placed [him][her] before the public in a false light;

Third, that the false light in which (plaintiff) was placed would cause a reasonable person to be justified in feeling seriously offended and aggrieved by the publicity; and

Fourth, that (defendant)'s giving of such publicity was a proximate cause of (plaintiff)'s damages.

(Plaintiff) must prove these first four propositions by a preponderance of the evidence. I have defined the term “preponderance of the evidence” in a separate instruction.

Fifth, the burden is also on (plaintiff) to prove by clear and convincing evidence that (defendant) published the false light fact, knowing it was false or with a high degree of awareness of its probable falsity. “Clear and convincing” evidence is proof that enables you without hesitation to reach a firm conviction that the allegation is true.

[If you find from the evidence in this case that each of these propositions has been proved, then your verdict should be for (plaintiff); but if, on the other hand, you find from the evidence that any of these propositions has not been proved, then your verdict should be for (defendant)].

NOTE ON USE

Do not use the final bracketed paragraph when the case is submitted on interrogatories or if an affirmative defense is utilized.

COMMENT

The privileges and defenses applicable to defamation also apply to invasions of privacy involving publication. Restatement (Second) of Torts §§ 652F to 652G (1977).

In Peoples Bank and Trust Co. of Mountain Home v. Globe Intern. Pub., Inc., 978 F.2d 1065, 1068 (8th Cir. 1992), the publisher asserted the defense that its written work was fiction that no reasonable reader would believe true and, therefore, was not actionable. The court found that statements are not protected by the defense of qualified privilege if the author lacks a belief in their truthfulness. See also Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002) (employer asserted the defense of qualified privilege); Dodson v. Dicker, 306 Ark. 108, 812 S.W.2d 97, 98–99 (1991) (determining that the tenor of defendant's language was figurative or hyperbolic negating the implied fact, and, therefore, concluding the language was not actionable); Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979), cert. denied, 444 U.S. 1076, 100 S. Ct. 1024, 62 L. Ed. 2d 759 (1980) (requiring plaintiff to prove actual malice to recover on a claim of false light invasion of privacy); Restatement (Second) of Torts §§ 652E (1977).

The extraordinary burden of proof is mandated by the First Amendment to the United States Constitution. See Time, Inc. v. Hill, 385 U.S. 374, 87 S. Ct. 534, 17 L. Ed. 2d 456 (1967); Dodrill, 265 Ark. at 639, 590 S.W.2d at 845. In Peoples Bank and Trust Co. of Mountain Home v. Globe Intern. Pub., Inc., supra, 978 F.2d at 1067 fn. 2, the court concluded the “actual malice” standard was not required of a plaintiff who was not a public figure when the charged speech involved no issue of public concern, citing to Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761, 105 S. Ct. 2939, 2946, 86 L. Ed. 2d 593 (1985). This issue was expressly left unresolved in Wal–Mart Stores, Inc. v. Lee, supra.

Relying on Ward v. Blackwood, 41 Ark. 295, 298 (1883), as well as the Restatement (Second) of Torts § 652I (1977), the court in Cannady v. St. Vincent Infirmary Med. Ctr., 2012 Ark. 369, at 8, held that the Arkansas survival statute, Ark. Code Ann. § 16-62-101, does not provide for the claim of invasion of privacy by intrusion upon seclusion (AMI 420) to survive the death of the decedent. Although the issue was not before the court in Cannady, the court's reliance on Ward and the Restatement suggests that a claim for false light invasion of privacy would also not survive the death of the decedent.

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