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MELVIN ALEXANDER PRESCOTT v. BAY ST. LOUIS NEWSPAPERS10/15/1986
y has developed along divergent lines and amid a welter of confusing judicial pronouncements, four distinct theories of the cause of action have been generally recognized: (1) The intentional intrusion upon the solitude or seclusion of another; (2) the appropriation of another's identity for an unpermitted use; (3) the public disclosure of private facts; and (4) holding another in the public eye in a false light. W. Prosser, Handbook of the Law on Torts 117 at 804-14 (4th ed. 1971); Restatement of Torts, 2d 652A (Tentative Draft No. 21, 1975).
Though the opinion is not explicit, Deaton appeared to have dealt with invasion of privacy by publication of private facts. Since Deaton we have explicitly or implicitly recognized the theories of intentional intrusion upon the solitude or seclusion of another and appropriation of another's identity or "commercial appropriation." Candebat v. Flanagan, 487 So.2d 207 (Miss. 1986). Apart from acknowledging false light as one recognized theory of recovery, however, we have not confronted the question of whether we will recognize this theory. Section 652E of the Restatement (Second) of Torts (1976) delineates the requisites for recovery under the theory of false light. It states:
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,
(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.
Comment "a" makes clear that "it is essential to the rule stated in this section that the matter published concerning the plaintiff is not true." But, comment "b" expresses the institute's position that the falsity need not be defamatory. It states:
The interest protected by this Section is the interest of the individual in not being made to appear before the public in an objectionable false light or false position, or in other words, otherwise than as he is.
* * *
It is not, however, necessary to the action for invasion of privacy that the plaintiff be defamed. It is enough that he is given unreasonable and highly objectionable publicity that attributes to him characteristics, conduct or beliefs that are false, and so is placed before the public in a false position.
The newspaper notes other courts have declined to recognize false light as a separate theory of recovery. See e.g. Sullivan v. Pulizter, 709 S.W.2d 475 (Mo. 1986); Renwick v. News and Observer Publishing Co., 312 S.E.2d 405 (N.C. 1984). There may be little or no reason to recognize false light claims where, as here, the false light alleged is defamatory in nature. See Sullivan, supra; Rinsley v. Brandt, 700 F.2d 1304, 1307 (10th Cir. 1983). However, Prosser and Keeton note that the real benefit of false light actions
is in providing redress where the publication is false yet does not amount to defamation. Prosser & Keeton On The Law of Torts 866 (W.Page Keeton 5th ed. 1984).
It is not important for us to delineate our position regarding recognition of false light here because we are confident that in any event Prescott has failed to present a case as a matter of law.
In Rinsley, the Tenth Circuit Court of Appeals noted that false light actions differ from defamation actions because recovery is for mental distress rather than injury to reputation.
In most aspects, however, the
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