Creating a New Tort for Wrongful Mispresentation of Character
83 Pages Posted: 1 Mar 2004
Date Written: March 2004
Both defamation law and the tort of false light invasion of privacy have been widely criticized as confusing in theory and arbitrary in result. A significant source of dissatisfaction, this Article contends, is that the prevailing system fails to account adequately for the existence of genuinely close cases under both torts. Such cases inevitably arise under doctrines that, like defamation and false light, contain major elements of indeterminacy. Yet, defamation and false light rules are generally based on a winner-take-all approach that departs from modern notions of apportionment.
This Article proposes a new tort, wrongful mispresentation of character, as a device to enable jurors in appropriate cases to register their sense that both parties in a defamation or false light suit have staked out substantial positions. Rather than supplanting existing causes of action, the wrongful mispresentation would offer an additional option to juries legitimately torn between compelling arguments for both the plaintiff and defendant. Moreover, by conferring legal status on this compromise, the tort might stimulate settlements along this line between parties who would otherwise contest their suit to the bitter end.
Part I provides an overview of salient developments in defamation and false light doctrines, and of criticisms and reforms that have been advanced. Part II describes the nature of the proposed tort of wrongful mispresentation and the circumstances under which it would be available; in addition, this Part discusses arguments that might be raised for and against the proposal. Part III identifies several areas in which the difficulty of principled resolution is a recurring phenomenon, and analyzes how wrongful mispresentation might provide a useful outlet in each area.
Suggested Citation: Suggested Citation