Cameron C. McCulloch (University of Chicago, Law School) has posted False Light and the Misattribution Interest on SSRN. Here is the abstract:
False light invasion of privacy is a tort with a troubled history. First named by William Prosser and codified at § 652E of the Second Restatement of Torts, false light has long been criticized as a tort without a coherent account of the interest it protects—either shadow defamation, on the standard charge, or an apparition. John Goldberg and Benjamin Zipursky have recently offered a promising defense of the tort, reconstructing false light as a “pseudo-disclosure” privacy tort. Their framework succeeds for one class of cases but filters out another the tort has historically covered—the falsely identified political supporter, the publicly mischaracterized critic, the subject of a flattering but fabricated biography. This Article identifies the interest those cases vindicate: the misattribution interest; the interest against being publicly associated with characteristics, views, works, or affiliations that are not one’s own. Misattribution is irreducible to privacy, reputation, or emotional distress, and it explains why false light is gaining importance in an era of deepfakes and other synthetic media.
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