Is It Tortious to Publish Part Truth That Falsely Characterizes Another Person?

False Light Involves Publicity About a Person Where Such Publicity Contains Highly Offensive Information That Tends to Falsely Characterize That Person.

Understanding the Tort of Publicity Placing a Person in a False Light As Within the Family of Breach of Privacy Torts

Tortious False Light Publicity Involves Publicity Containing Misleading Implications Damaging to Reputation Until recently, the law as to whether the tort of false light was a legitimate cause of action, meaning reason for suing, remained without a confirming judicial decision; however, in the past few years, various cases have confirmed that the tort of false light is now viewed as a legitimate cause of action for a lawsuit brought within Ontario.

The Law

As per the cases of Gillespie v. Fraser, 2023 ONSC 537, and Kaur v. Virk, 2022 ONSC 6697, each of which followed the precedent established by the Yenovkian v. Gulian, 2019 ONSC 7279, decision, the tort of false light is now established.  Specifically, these cases provide confirming jurisprudence whereas the cases respectively state:


[44]  To establish the tort of publicity placing a person in False Light, the Plaintiff must establish: (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: Yenovkian v Gulian, 2019 ONSC 7279 (Ont. S.C. J.) at para 164; Kaur v Virk 2022 ONSC 6697 at para 24. Furthermore, the plaintiff need not prove that her reputation would be lowered in the eyes of the community: Kaur at para 25.


[24]  The elements for the new tort of portraying another person publicly in a “false light” were set out by Kristjanson J. at para. 170 of Yenovkian v. Gulian, 2019 ONSC 7279:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, 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. [emphasis added]

[25]  In Yenovkian, Kristjanson J. explained that while the publicity giving rising to the tort will often be defamatory, defamation is not required to establish liability. She held that it is sufficient for a person claiming to show that “a reasonable person would find it highly offensive to be publicly misrepresented as they have been.” Much like defamation, the tort of publicizing the persona of another person in a false light has an element of deception and falsity without the strict test of whether that person’s reputation would be lowered in the eyes of the community.


[170]  With these three torts all recognized in Ontario law, the remaining item in the “four-tort catalogue” of causes of action for invasion of privacy is the third, that is, publicity placing the plaintiff in a false light. I hold that this is the case in which this cause of action should be recognized. It is described in § 652E of the Restatement as follows:

Publicity Placing Person in False Light

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, 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.

[171]  I adopt this statement of the elements of the tort. I also note the clarification in the Restatement's commentary on this passage to the effect that, while the publicity giving rise to this cause of action will often be defamatory, defamation is not required. It is enough for the plaintiff to show that a reasonable person would find it highly offensive to be publicly misrepresented as they have been. The wrong is in publicly representing someone, not as worse than they are, but as other than they are. The value at stake is respect for a person's privacy right to control the way they present themselves to the world.

[172]  It also bears noting this cause of action has much in common with the tort of public disclosure of private facts. They share the common elements of 1) publicity, which is 2) highly offensive to a reasonable person. The principal difference between the two is that public disclosure of private facts involves true statements, while “false light” publicity involves false or misleading claims. (Two further elements also distinguish the two causes of action: “false light” invasion of privacy requires that the defendant know or be reckless to the falsity of the information, while public disclosure of private facts involves a requirement that there be no legitimate public concern justifying the disclosure.)

[173]  It follows that one who subjects another to highly offensive publicity can be held responsible whether the publicity is true or false. This indeed, is precisely why the tort of publicity placing a person a false light should be recognized. It would be absurd if a defendant could escape liability for invasion of privacy simply because the statements they have made about another person are false.

[174]  Moreover, it is likely that in the course of creating publicity placing a person in a false light, the wrongdoer will happen to include true, but private, facts about the person whose privacy is invaded. In this case, for instance, the defendant has publicized falsehoods about the plaintiff, but he has also publicly aired private facts about her present living situation with the children and her parents (including videos of their home) and details of access visits which is a true, but private matter.

Interestingly, the tort of false light is somewhat similar to, and may contain some of the same elements as, the tort of defamation; however, the tort of false light actually falls within the breach of privacy family of torts as the third subtort outlined within the Jones v. Tsige, 2012 ONCA 32 case at paragraph 18 which states:


[18] Professor Prosser's article picked up the threads of the American jurisprudence that had developed in the 70 years following the influential Warren and Brandeis article. Prosser argued that what had emerged from the hundreds of cases he canvassed was not one tort, but four, tied together by a common theme and name, but comprising different elements and protecting different interests. Prosser delineated a four-tort catalogue, summarized as follows, at p. 389:

1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.

Summary Comment

A false light tort case alleges that a defendant knowingly published, or published with disregard, details about a person that would be viewed as highly offensive to an objectively reasonable person whereas the details infringes upon the right to control the narrative regarding the genuine character of the person.  The tort of false light may arise by the publishing of partial truth whereas the omitting of full truth is deceiving and mischaracterizing.

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