Arthur FELLOWS, Plaintiff and Appellant, v. NATIONAL ENQUIRER, INC., Defendant and Respondent.
Civil Code section 45a provides that an action for libel based upon a publication that is defamatory only by reference to extrinsic facts not appearing on the face of the publication may not proceed unless the plaintiff alleges that the libel caused special damages to his business, trade or property.1 The question presented by this appeal is whether section 45a bars an action for invasion of privacy based on knowing or reckless exposure of the plaintiff to false publicity, not defamatory on its face, which has caused injury to plaintiff's peace of mind and personal feelings but has not caused such special damages. The trial court answered this question affirmatively, and dismissed plaintiff's action for invasion of privacy, under the perceived compulsion of a Supreme Court opinion that referred to a cause of action for invasion of privacy by false light publicity as “in substance equivalent to ․ [a] libel claim.” (Kapellas v. Kofman (1969) 1 Cal.3d 20, 35, fn. 16, 81 Cal.Rptr. 360, 459 P.2d 912.) Upon thorough consideration of this and other relevant decisions concerning the tort of invasion of privacy, its relationship to defamation, and the purposes of section 45a, we have concluded that this particular restriction of libel claims does not apply to a cause of action for invasion of privacy by false light publicity. Accordingly we reverse.
In the August 17, 1982 edition of its tabloid The National Enquirer, defendant National Enquirer, Inc. (Enquirer) published the following item concerning plaintiff Arthur Fellows (Fellows): “Gorgeous Angie Dickinson's all smiles about the new man in her life—TV producer Arthur Fellows. Angie's steady-dating Fellows all over TinselTown, and happily posed for photographers with him as they exited the swanky Spago restaurant in Beverly Hills.” Accompanying the article was a photograph of Ms. Dickinson and Fellows over the caption, “ANGIE DICKINSON [¶] Dating a producer.”
Immediately after the publication Fellows, through his attorney, sent Enquirer a written demand for correction of the article. The demand notified Enquirer that Fellows had never dated Ms. Dickinson and stated that “[a]ny implication that they have dated and/or are dating is false, libelous, misleading and damaging to Arthur Fellows and constitutes an invasion of his privacy.” Enquirer's counsel replied, “I do not understand in what respect Mr. Fellows claims the news item to be false or damaging ․” Fellows' counsel then further explained, in a second letter, “The article is false because Mr. Fellows has never dated Miss Dickinson, is not ‘the new man in her life,’ and has been married to Phyllis Fellows for the last 18 years.” 2 By return letter of September 7, 1982, Enquirer rejected Fellows' demand for correction. Fellows filed the present action two weeks later.
By his initial complaint Fellows charged Enquirer with both libel and invasion of privacy by publicity placing him in a false light in the public eye; he also alleged purported causes of action, on behalf of himself and his wife, for intentional and negligent infliction of emotional distress and for “conscious disregard.” The libel cause of action alleged defamation dependent on facts extrinsic to the article: “Said article is defamatory in that said article was understood by those who read it or heard it [sic ] and who have knowledge of plaintiff's marital status to mean that plaintiff was engaged in improper and immoral conduct.” The second, privacy cause of action asserted that Enquirer's article had placed Fellows in a false light to the public of being the “ ‘new man’ ” in Ms. Dickinson's life who was “steady-dating” her “all over town,” and also had cast him in a false light, in the eyes of those who knew of his marital status, of having engaged in improper and immoral conduct. Both causes of action alleged that Enquirer had published the article with knowledge of its falsity or reckless disregard for whether it was false—the standard of culpability the United States Supreme Court has held to be constitutionally required for a defamation claim against a news medium by a public official or public figure (e.g., New York Times Co. v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686; Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789) and for a “false light” invasion of privacy claim brought on account of a false report of a matter of public interest (Time, Inc. v. Hill (1967) 385 U.S. 374, 387–388, 87 S.Ct. 534, 541–542, 17 L.Ed.2d 456; Cantrell v. Forest City Publishing Co. (1974) 419 U.S. 245, 249–251, 95 S.Ct. 465, 468–470, 42 L.Ed.2d 419.) By way of damages, Fellows alleged in each claim that he had suffered injury to his reputation, shame, mortification, and hurt feelings—the type of “general damages” defined for defamation actions by section 48a, subdivision (4)(a)—and also, on information and belief, that he had suffered special damages to his business as a film producer by way of “a decline in the amount of new work normally to be expected” and by way of damage to his “business relationships with members of the film industry.”
Enquirer demurred generally to the complaint. Concerning the libel cause of action, Enquirer asserted that the pleading was insufficiently specific in its allegation of special damages, which were necessary to render the libel actionable under section 45a because the article's alleged defamatory meaning depended on the extrinsic fact of Fellows' marital status. Enquirer further urged that the invasion of privacy cause of action should be dismissed because it was redundant of the libel claim and was identically deficient. The demurrer also challenged the remaining causes of action, on other grounds not here pertinent.
After expressing skepticism whether Fellows could prove special damage to his business and inquiring of counsel concerning the actual facts, the trial court overruled the demurrer to the libel and intentional infliction of emotional distress counts “without prejudice.” The court sustained the demurrer as to the invasion of privacy claim on the ground that it was “redundant” of the libel claim but granted leave to amend. The demurrer also was sustained to the remaining causes of action.
Fellows filed a first amended complaint which reiterated his original libel cause of action, expanded the allegations of the invasion of privacy claim, and again included counts for intentional and negligent infliction of emotional distress. As thus reasserted, the cause of action for invasion of privacy omitted the libel count's allegation of special damages and alleged only damages to Fellows' reputation, peace of mind, and personal feelings. Enquirer again demurred to the entire pleading, on grounds similar to those previously asserted, with emphasis upon the alleged inadequacy of the special damage allegations. At the hearing of this demurrer Fellows' counsel informed the court, in response to its inquiry at the prior hearing, “at this time the answer is we have no special damages. It is highly improbable we will have special damages.” Counsel asserted, however, that such damages were not a necessary ingredient of a cause of action for invasion of privacy. The court this time sustained the demurrer to all causes of action except that for negligent infliction of emotional distress, again granting leave to amend. The court's stated reason for sustaining the demurrer to the libel and invasion of privacy claims was the absence or insufficiency of special damages.
Fellows then filed his second amended complaint. In accordance with his concession that he had not suffered special damages of the type required for an action for libel based upon a publication not defamatory on its face, Fellows did not reassert his libel claim. He did, however, restate his cause of action for invasion of privacy by false light publicity, alleging that the article, published with knowledge of or reckless disregard for its falsity, had cast him in a false light in the public eye both because he had never dated Dickinson and was not “the new man” in her life and because the article falsely depicted him to those with knowledge of his marital status as engaging in improper and immoral conduct. As so repleaded, this cause of action abandoned the claim for damages to Fellows' reputation and sought only damages on account of injury to his privacy, his peace of mind, and his feelings. The complaint also reiterated the causes of action for infliction of emotional distress.
Enquirer again demurred to all causes of action. The demurrer focused upon the absence of allegations of special damages necessary for a libel claim based on a publication not defamatory on its face. Enquirer urged that the absence of such damages not only deprived Fellows of a viable cause of action for libel but also barred his false light invasion of privacy claim (as well as the count for negligent infliction of emotional distress). The trial court (a different judge from the one who had heard the previous demurrers) agreed, and sustained the demurrer without leave to amend. The court so ruled based upon its reading of footnote 16 of the Supreme Court's opinion in Kapellas v. Kofman (1969) 1 Cal.3d 20, 81 Cal.Rptr. 360, 459 P.2d 912 (discussed infra ). The court informed Fellows' counsel, “I think the bottom line, Mr. Gross, probably is that the Supreme Court views a false light claim of privacy as practically being identical with libel defamation․ I just cannot read Footnote 16 in Kapellas vs. Kofman as doing anything but compelling sustaining [the] demurrers without leave. I feel absolutely bound by that language.” The court's minute order reiterated this conclusion,3 and an order of dismissal was thereupon entered.
By his present appeal from the order of dismissal Fellows has abandoned his causes of action for intentional and negligent infliction of emotional distress and seeks reversal only to reinstate his cause of action for invasion of privacy. He contends that the Supreme Court has not imposed upon causes of action for false light invasion of privacy section 45a's special damage requirement for “libel per quod,” and that by virtue of established distinctions between the two torts and the interests each addresses his claim for injury to his peace of mind by false light publicity is actionable without proof of special damage. In response, Enquirer insists that in California libel and false light invasion of privacy are indistinguishable causes of action, that the latter may not be brought if the former would not lie, and that section 45a embodies a legislative policy equally applicable to both types of claims. As we shall explain, the question of section 45a ' s applicability to false light invasion of privacy is actually one of first impression, and our review of the history and nature of this tort as recognized in California yields the conclusion that Fellows' cause of action is not governed or barred by the statute.
1. Both Before and Since the Supreme Court's Decision in Kapellas v. Kofman, California Has Recognized a Right of Action for Invasion of Privacy To Redress Injuries to Peace of Mind Caused by Objectionable False Publicity, Distinct From Libel and Not Dependent Upon Proof of Special Damages.
For more than 50 years California decisions have established and recognized causes of action for damages to redress invasion of the individual's right of privacy, independent of the statutorily defined (§§ 43 et seq.) action for defamation. The seminal California decision, Melvin v. Reid (1931) 112 Cal.App. 285, 297 P. 91, identified the right of privacy as embraced within article 1, section 1 of the California Constitution, which in 1931 declared every individual's “inalienable rights” to include “enjoying and defending life and liberty; acquiring, possessing and protecting property; and pursuing and obtaining safety and happiness.” (112 Cal.App. at p. 291, 297 P. 91.) By amendment adopted in 1974, “privacy” was specifically added to the end of this declaration of fundamental constitutional rights. That amendment not only underscored the independent basis of privacy as an actionable constitutional right but also expanded its scope beyond that recognized in previous decisions. (Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 828–829, 134 Cal.Rptr. 839; see White v. Davis (1975) 13 Cal.3d 757, 775, 120 Cal.Rptr. 94, 533 P.2d 222 (constitutional privacy right provides “self-executing” basis for suit to redress its violation).)
While the landmark Melvin v. Reid case recognized a cause of action for invasion of privacy based upon the publicizing of true but discrediting events in an individual's past, succeeding decisions extended the scope of actionable invasion of privacy to include offensive publicity that falsely attributed characteristics, thoughts, or behavior to an individual—in short, what Prosser later characterized as “[p]ublicity which places the plaintiff in a false light in the public eye.” (Prosser, Privacy (1960) 48 Cal.L.Rev. 383, 389 (hereinafter cited as “Prosser”).) In Kerby v. Hal Roach Studios (1942) 53 Cal.App.2d 207, 127 P.2d 577, defendants promoted a new film by circulating to male Los Angeles residents 1,000 copies of a letter, signed with plaintiff's name (which also was the name of the chief female character in the film), which suggestively invited the addressee to an assignation at a theatre. After quoting from Melvin v. Reid the traditional definition of the right of privacy as being “ ‘the right to live one's life in seclusion, without being subjected to unwarranted and undesired publicity’ ” (53 Cal.App.2d at p. 210, 127 P.2d 577), the court held that “[t]o suggest that a woman has written such a letter ․ to men whom she did not know ․ is to impute to her a laxness of character ․; and to spread such imputations abroad, as defendants have done, is as much an invasion of the right of privacy as was the publication of true but derogatory statements in Melvin v. Reid [citation].” (Id., at p. 212, 127 P.2d 577.)
Ten years later, the Supreme Court for the first time endorsed the concept of the right of privacy and the availability of a cause of action for its invasion, again in a case involving publicity alleged to have falsely imputed offensive behavior to the plaintiff. In Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273, 239 P.2d 630, the court upheld a complaint based upon a magazine's publication of a married couple's photograph, taken as they sat in an amorous pose, to illustrate an article concerning various types of love. Defendants' liability did not derive from the mere publication of the photograph, which the court later held would not be actionable per se inasmuch as it depicted activity conducted in public and intrinsically inoffensive. (Gill v. Hearst Publishing Co. (1953) 40 Cal.2d 224, 229–231, 253 P.2d 441.) Rather, the gist of the invasion of privacy involved the publishers' captioning of plaintiffs' photograph as exemplifying a “ ‘wrong’ ” kind of love, “founded upon 100 per cent sex attraction.” (Gill v. Curtis Publishing Co., supra, 38 Cal.2d at p. 275, 239 P.2d 630.) After generally approving a right of action for invasion of privacy—on the basis, among others, of constitutional considerations (id., at p. 278, 239 P.2d 630)—the court held that such a cause of action had been stated because the publication in question “depicted [plaintiffs] as persons whose only interest in each other is sex, a characterization that may be said to impinge seriously upon their sensibilities.” (Id., at p. 279, 239 P.2d 630; see id., at pp. 280–281, 239 P.2d 630.)
Both the Kerby and Gill cases demonstrated that the right of action for invasion of privacy by false publicity, although somewhat overlapping with libel, also arose and stood independently from that statutory cause of action. In Kerby, the court observed that “[t]he letter complained of here might very well have formed the basis of a charge of libel,” but nonetheless specifically upheld the complaint on the independent basis of invasion of privacy, stating that plaintiff would be entitled so to proceed even had she failed to post a bond for costs, then required to maintain a suit for defamation. (53 Cal.App.2d at pp. 213–214, 127 P.2d 577.) Similarly, the complaint in Gill had alleged plaintiffs' injury and damages in a fashion substantially equivalent to the statutory definition of libel.4 But the Supreme Court commenced its discussion of the right of privacy infringed by defendants' publication as being a right “independent of the common rights of property, contract, reputation, and physical integrity.” (38 Cal.2d at p. 276, 239 P.2d 630 (italics added).) The court further took note of the Restatement's qualification that to be actionable the invasion must be “ ‘offensive to persons of ordinary sensibilities' ” and held that the complaint satisfied this standard. (Id., at p. 280, 239 P.2d 630.) And in discussing the standard and measure of damages, the court focused upon the element not of reputation but rather of mental distress. The court stated that an allegation plaintiffs had suffered the latter could be inferred from their allegations of injury to the former, and held that a pleading of injury to peace of mind sufficed to complete a cause of action. (Id., at p. 281, 239 P.2d 630.)
The distinction between causes of action for invasion of privacy and defamation with regard to the interest protected and compensated was more fully expounded in Fairfield v. American Photocopy etc. Co. (1955) 138 Cal.App.2d 82, 291 P.2d 194. The invasion of privacy in that case consisted of defendant's publication of plaintiff's name in an advertisement purportedly listing law firms who were using defendant's photocopy machine. In fact plaintiff had been dissatisfied with plaintiff's machine and had returned it for a refund. The Court of Appeal reversed a nonsuit rendered on the ground plaintiff had failed to prove damages. Concerning the nature of plaintiff's right of action, the court said, inter alia: “The gist of the cause of action in a privacy case is not injury to the character or reputation, but a direct wrong of a personal character resulting in injury to the feelings without regard to any effect which the publication may have on the property, business, pecuniary interest, or the standing of the individual in the community. [Citations.] The right of privacy concerns one's own peace of mind, while the right of freedom from defamation concerns primarily one's reputation. [Citations.] The injury is mental and subjective. It impairs the mental peace and comfort of the person and may cause suffering much more acute than that caused by a bodily injury. [Citation.]” (138 Cal.App.2d at pp. 86–87, 291 P.2d 194, italics added.) Citing numerous authorities to the effect that injury to feelings is a basic element of invasion of privacy, the court held that plaintiff had been entitled to recover upon proof of such injury, without proof of further, special damages. (Id., at pp. 89–91, 291 P.2d 194.)
While the Fairfield case fits within Prosser's category of privacy cases involving “[a]ppropriation, for the defendant's advantage, of the plaintiff's name or likeness” (Prosser, supra, 48 Cal.L.Rev. 383, 389), the Fairfield court's exposition of plaintiff's injury and compensable damages also bespoke concern with the false light in which plaintiff had been placed by defendant's advertisement. (138 Cal.App.2d at p. 88, 291 P.2d 194 (“The advertisement necessarily carried the implication that plaintiff endorsed the machine and had permitted defendant to use his name as a lawyer in its advertisements. He had done neither. Plaintiff is entitled to compensation for injury to his peace of mind and to his feelings.”)) Fairfield thus was both an “appropriation” and a “false light” case. Moreover, it stands as the leading California decision concerning the interests protected and the damages available in right of privacy actions. Its analysis of these elements has been cited approvingly not only in “appropriation” cases (see, e.g., Lugosi v. Universal Pictures (1979) 25 Cal.3d 813, 833, 160 Cal.Rptr. 323, 603 P.2d 425 (dissenting opinion contending for separate “right of publicity” to afford compensation for economic loss as opposed to mental anguish traditionally compensable in invasion of privacy actions)), but also in “false light” cases (e.g., Werner v. Times-Mirror Co. (1961) 193 Cal.App.2d 111, 115–116, 14 Cal.Rptr. 208 (discussed immediately below)), and even in a leading decision regarding infringement of the right of privacy by statutory financial disclosure requirements (City of Carmel-by-the Sea v. Young (1970) 2 Cal.3d 259, 268, 85 Cal.Rptr. 1, 466 P.2d 225.) 5
Werner v. Times-Mirror Co. (1961) 193 Cal.App.2d 111, 14 Cal.Rptr. 208 collected the teachings of the foregoing cases and for the first time applied to a false light invasion of privacy action one limitation derived from the statutes governing actions for libel. In Werner, a former City Attorney of Los Angeles complained of an article in the Los Angeles Times which allegedly consisted of both true and false statements concerning his impending marriage and events in his past. Affirming a dismissal entered upon the sustaining of a general demurrer and refusal to amend, the court held that so much of the article as was true did not constitute an invasion of privacy because the facts so published either were matters of public record or concerned matters that remained of public interest. (Id., at pp. 116–118, 14 Cal.Rptr. 208.) Plaintiff's allegations of falsity, however, required the court to explore in some respects the relation of a false light claim to one for libel.
Resting his action entirely on invasion of privacy, plaintiff had not filed the bond for costs required for a libel action (cf. Kerby v. Hal Roach Studios, supra ); the trial court had refused to dismiss the action because of this failure, and the Court of Appeal did not disapprove that ruling. (193 Cal.App.2d at p. 113, 14 Cal.Rptr. 208.) The court further quoted at length the Fairfield case's differentiation of the interests protected by the right of privacy and “ ‘the right of freedom from defamation’ ” (193 Cal.App.2d at p. 116, 14 Cal.Rptr. 208), and reiterated “that the tort of invasion of the right of privacy accords protection to a fundamentally different interest than that safeguarded by the law of defamation.” (Id., at p. 120, 14 Cal.Rptr. 208.) Citing Kerby and Gill v. Curtis Publishing Co., supra, as examples of invasion of privacy by false light publicity (193 Cal.App.2d at pp. 119–120, 14 Cal.Rptr. 208), the court then confronted the question whether, in view of section 48a,6 plaintiff should be allowed to proceed with his claim for general damages to his peace of mind occasioned by false publicity in a newspaper without alleging special damages or a refused demand for correction. Concluding that section 48a represented a legislative declaration of public policy concerning rights of action against newspapers on account of libelous statements, the court held that it could not countenance an “evasion” of the statute insofar as the allegedly false publicity was libelous, and that to allow the action to proceed with respect to non-libelous but allegedly offensive false statements in a newspaper would also “dilute the effect” of the statute. (Id., at pp. 121–123, 14 Cal.Rptr. 208.) Accordingly, the judgment of dismissal was affirmed.
In Kapellas v. Kofman (1969) 1 Cal.3d 20, 81 Cal.Rptr. 360, 459 P.2d 912, the Supreme Court approved and adopted the Werner decision's application of section 48a's demand-for-correction requirement to false light invasion of privacy claims against newspapers, and concurrently made further comments about the relation of libel and false light which the trial court here construed as foreclosing Fellows' cause of action. In Kapellas a city council candidate complained of a newspaper editorial that criticized her suitability for office in light of reports, allegedly derived from the local “police blotter,” that her children had been the subject of numerous complaints and arrests. Plaintiff alleged, in three causes of action, that the editorial had libeled her, had libeled her children, and had invaded the children's privacy. The Supreme Court affirmed the sufficiency of the two counts of libel against challenges that plaintiff had not alleged malice sufficient to defeat the qualified privilege provided by section 47, subdivision (3) and that her demand for correction—necessary under section 48a because the defendant was a newspaper and plaintiff had not alleged special damages—had been insufficiently specific. (1 Cal.3d at pp. 28–34, 81 Cal.Rptr. 360, 459 P.2d 912.) However, the court held the editorial's disclosure of true facts concerning the children not actionable as an invasion of privacy by “public disclosure of private facts,” because the incidents referred to apparently were already of public record and, more importantly, because plaintiff's candidacy for public office rendered these facts subject to public exposure and examination as “newsworthy.” (Id., at pp. 34–39, 81 Cal.Rptr. 360, 459 P.2d 912.) In the course of this discussion the court appended the following footnote, upon which the trial court here grounded its dismissal of Fellows' privacy cause of action—
“Dean Prosser has identified four distinct torts, dealing with the invasion of four different interests of plaintiffs, which have been variously decided under the appellation of ‘right of privacy.’ His designation breaks down the general category into cases of (1) intrusion, (2) public disclosure of private facts, (3) false light in the public eye, and (4) appropriation. (Prosser, Law of Torts (3d ed. 1964) 829–851.)
“Insofar as the instant plaintiff's right to privacy action is of the ‘false light in the public eye’ variety, resting on the allegedly false nature of the editorial statements, we find the action is in substance equivalent to the children's libel claim, and should meet the same requirements of the libel claim on all aspects of the case, including proof of malice (cf. Time, Inc. v. Hill (1967) 385 U.S. 374 [17 L.Ed.2d 456, 87 S.Ct. 534] ) and fulfillment of the requirements of section 48a. (See Werner v. Times-Mirror Co., 193 Cal.App.2d 111, 122–123 [14 Cal.Rptr. 208].) Since the complaint contains a specific cause of action for libel, the privacy count, if intended in this light, is superfluous and should be dismissed.” (Id., at p. 35, fn. 16, 81 Cal.Rptr. 360, 459 P.2d 912.)
The Supreme Court thus clearly concurred with the Werner court's extension of section 48a to false light claims against newspapers, and also required some showing of “malice.” However, unlike the trial court, we do not perceive these few sentences as either holding or signifying that all false light invasion of privacy claims would henceforth be treated as identical to libel claims or be subject to all of the statutory and judicial limitations upon such claims, particularly that of section 45a. Read in context, the court's statements that a false light claim was “in substance equivalent to” and possibly “superfluous” in light of a libel claim simply confirmed that in Kapellas the libel claim, previously adjudged sufficient as such, provided plaintiffs' children with a full remedy for any injuries they had suffered by the false publication, whether to reputation, personal feelings, or both. (See § 48a, subd. (4)(a).) The court did not, however, consider or decide whether injury to privacy interests by false light publicity that would not be actionable as libel—either because defamatory only by reference to extrinsic facts and not causative of special damage (§ 45a) or, for that matter, because not defamatory at all (see § 45)—could yet be redressed by a claim for invasion of privacy. Such questions simply were not raised by the facts in Kapellas, in which all pertinent elements of libel were satisfied.
The question of section 45a's applicability to false light also was neither considered nor resolved in the Supreme Court's next invasion of privacy decision, Briscoe v. Reader's Digest Association, Inc. (1971) 4 Cal.3d 529, 93 Cal.Rptr. 866, 483 P.2d 34, in which the court reiterated its statements in Kapellas regarding the applicability of section 48a and of malice requirements to a false light claim. Most of the Briscoe opinion addressed the actionability of the truthful disclosure of the criminal past of a reformed offender who had assumed an anonymous and respectable position in the community. After holding this disclosure established a prima facie case of invasion of privacy by public disclosure of embarrassing private facts (id., at pp. 532–543, 93 Cal.Rptr. 866, 483 P.2d 34), the court turned briefly to plaintiff's further assertion that the defendant's publication had cast plaintiff in a false light by implying that his criminal acts were recent. The court cited footnote 16 to the Kapellas opinion for the proposition that “a ‘false light’ claim ‘is in substance equivalent to ․ [a] libel claim, and should meet the same requirements of the libel claim ․ including proof of malice [citation] and fulfillment of the requirements of section 48a ․” (Id., at p. 543, 93 Cal.Rptr. 866, 483 P.2d 34.) It then held that since plaintiff—although alleging malice 7 —had not complied with section 48a by demanding a correction, “[i]t would therefore be possible for him to amend his complaint to state a cause of action based on a ‘false light’ theory only if he alleged special damages.” (Id.) Briscoe 's brief discussion of the qualifications of a false light claim thus did not enlarge upon the court's earlier observations in Kapellas, except in one collateral and transient respect. Two courts of appeal later concluded that Briscoe ' s implication that section 48a's demand-for-correction requirement applied not only to newspapers but also to magazines (the defendant in Briscoe having been a magazine) had been unconsidered dictum that should not be followed—and the Supreme Court denied a hearing in each of those cases. (Montandon v. Triangle Publications, Inc. (1975) 45 Cal.App.3d 938, 951–953, 120 Cal.Rptr. 186; Burnett v. National Enquirer, Inc. (1983) 144 Cal.App.3d 991, 1001–1004, 193 Cal.Rptr. 206.)
While the Supreme Court in Kapellas and Briscoe referred to false light claims involving publications that could have supported causes of action for libel per se as “in substance equivalent to” such libel claims, the court did not in those cases consider the availability of a false light invasion of privacy claim to redress damages to peace of mind occasioned by offensive false publicity that was not defamatory on its face and had not caused special damages as defined in section 48a, subdivision (4)(b). Nor, it is clear, did the court purport to wipe away and subsume under the rubric of libel the independent action for invasion of privacy by false and offensive publicity it had previously approved in Gill v. Curtis Publishing Co., supra.8 Any suggestion that invasion of privacy by false light publicity had been stricken from California's common law rights of action in favor of libel alone is dispelled by more recent decisions by the high court acknowledging the separate existence of the two causes of action.
For example, in Forsher v. Bugliosi (1980) 26 Cal.3d 792, 163 Cal.Rptr. 628, 608 P.2d 716, the court separately appraised (and rejected) the merits of conjoined causes of action for libel and invasion of privacy based upon statements in a popular book. After disposing of the libel claim (id., at pp. 802–807, 163 Cal.Rptr. 628, 608 P.2d 716), the court commenced its independent discussion of the privacy claim by observing that “[t]he allegations of the complaint might involve either the public disclosure of private facts branch or the false light branch of the tort.” (Id., at p. 808, 163 Cal.Rptr. 628, 608 P.2d 716.) More recently, in Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 208 Cal.Rptr. 137, 690 P.2d 610, the court held a libel claim barred by reason of the public figure plaintiffs' inability to prove knowing or reckless falsity. The court then addressed a further cause of action for “invasion of privacy by placing plaintiffs in a ‘false light,’ ” and dismissed it, not as identical to the concurrent libel claim, but rather because of failure to negative the constitutional privilege, which “bars not only actions for defamation, but also claims for invasion of privacy [citing, inter alia, footnote 16 to Kapellas ].” (37 Cal.3d at p. 265, 208 Cal.Rptr. 137, 690 P.2d 610.)
Court of Appeal decisions since Kapellas have also recognized the continued availability of false light invasion of privacy claims apart from libel claims, as well as certain salient distinctions between the two causes of action. O'Hilderbrandt v. Columbia Broadcasting System, Inc. (1974) 40 Cal.App.3d 323, 114 Cal.Rptr. 826 affirmed a nonsuit granted on plaintiff's claim that a broadcast had placed her in an objectionable false light, on the basis that the false implications of the broadcast were not sufficiently offensive as a matter of law. (Id., at p. 334, 114 Cal.Rptr. 826; compare Gill v. Curtis Publishing Co., supra, 38 Cal.2d at p. 280, 239 P.2d 630 (holding that the question of offensiveness to the reasonable person of the false light there considered on demurrer was “a question for the trier of fact rather than one of law”); Strickler v. National Broadcasting Company (S.D.Cal.1958) 167 F.Supp. 68, 71 (same).) But before so ruling, the court discussed at some length the recognized cause of action for invasion of privacy by “publicity which places the plaintiff in a false light in the public eye, the false light not necessarily being a defamatory one.” (40 Cal.App.3d at p. 331, 114 Cal.Rptr. 826.) The court specifically contrasted the distinction drawn by Fairfield v. American Photocopy etc. Co., supra, between the interests protected and injuries redressed respectively in privacy and defamation actions with Prosser's more facile generalization that “ ‘[t]he interest protected [in false light cases] is clearly that of reputation, with the same overtones of mental distress as in defamation.’ ” (40 Cal.App.3d at p. 329, 114 Cal.Rptr. 826, quoting Prosser, supra, 48 Cal.L.Rev. at p. 400; see footnote 9, post.)
Particularly noteworthy is Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 198 Cal.Rptr. 342, an invasion of privacy case against Enquirer itself. Plaintiff's complaint in Eastwood (which is before us in the record on this appeal, having been appended to one of Enquirer's demurrers) comprised two causes of action. One charged Enquirer with commercial appropriation of plaintiff's name and likeness by advertisements of an issue of the tabloid containing a story about plaintiff allegedly published with knowledge or reckless disregard of its total falsity. The other cause of action alleged invasion of privacy by false light publicity. The article, dealing with plaintiff's purported involvement in a “love triangle” with two women celebrities, was not contended to be libelous, and plaintiff's false light cause of action—like Fellows' here—alleged that the publicity occasioned by the false story had injured plaintiff's privacy and feelings and caused him mental anguish and emotional distress. (See id., at p. 415, 198 Cal.Rptr. 342.) In Eastwood “Enquirer did not challenge the legal sufficiency of the first cause of action for invasion of privacy by placing [plaintiff] in a false light in the public eye.” (Ibid.) Thus, Enquirer did not then contend—as it does now—that false light and libel are coterminous and that the pleading of the former requires all the elements of the latter. And the court of appeal in Eastwood, while principally treating the sufficiency of plaintiff's appropriation cause of action, similarly acknowledged that the focus of a false light claim is false publicity which need not qualify as defamation. (See id., at pp. 417, 425, 198 Cal.Rptr. 342.)
Viewed as a whole, this state's decisional recognition and development of the tort of invasion of privacy by false light publicity establishes that this cause of action possesses a status and quality independent of libel. While the two torts frequently overlap (cf. Werner v. Times-Mirror Co., supra, 193 Cal.App.2d at p. 120, 14 Cal.Rptr. 208), they also diverge in a number of significant respects. Not all invasions of privacy by false light publicity are libels, and vice versa. Among the most significant distinctions are these.
(1) A libel may arise from publication of a defamatory statement to only one person (e.g., Bindrim v. Mitchell (1979) 92 Cal.App.3d 61, 79, 155 Cal.Rptr. 29), whereas false light publicity by definition requires publicity of the falsehood, to a substantial number of people (see, e.g., Kinsey v. Macur (1980) 107 Cal.App.3d 265, 270, 165 Cal.Rptr. 608).
(2) A libel must defame the plaintiff, in the manner defined by section 45 (see fn. 4, ante ), while actionable false light publicity need not be defamatory but must be such as a reasonable person in plaintiff's position would find objectionable or offensive (e.g., Gill v. Curtis Publishing Co., supra, 38 Cal.2d at p. 280, 239 P.2d 630; Werner v. Times Mirror Co., supra, 193 Cal.App.2d at pp. 118–119, 14 Cal.Rptr. 208; Carlisle v. Fawcett Publications, Inc. (1962) 201 Cal.App.2d 733, 748, 20 Cal.Rptr. 405; Restatement Second of Torts, section 652E, comment c; see Zolich, Laudatory Invasion of Privacy (1967) 16 Clev.-Mar.L.Rev. 532, 539–540).
(3) Most importantly, an action for libel primarily protects and compensates for damage to the plaintiff's reputation, whereas the tort of false light publicity, like the other branches of invasion of privacy, protects the plaintiff from and compensates him for injury to his peace of mind and feelings. (E.g., Fairfield v. American Photocopy etc. Co., supra, 138 Cal.App.2d at p. 86, 291 P.2d 194; Werner v. Times-Mirror Co., supra, 193 Cal.App.2d at pp. 116, 120, 14 Cal.Rptr. 208; Kelly v. Johnson Publishing Co. (1958) 160 Cal.App.2d 718, 721, 325 P.2d 659; O'Hilderbrandt v. Columbia Broadcasting System, Inc., supra, 40 Cal.App.3d at p. 329, 114 Cal.Rptr. 826.) 9
As we now explain, the latter, critical distinctions between libel and false light invasion of privacy dictate that although Fellows' libel claim, brought on account of alleged damage to his reputation, was barred by section 45a, his action for invasion of privacy, which charges and seeks redress only for injury to his peace of mind, was not subject to or barred by that statute.
2. The Limitation Upon Libel Claims Imposed By Section 45a, and the Policies Underlying the Statute, Are Inapposite and Inapplicable to Bar Fellows' Cause of Action for Invasion of Privacy.
On its face, section 45a is concerned only with the tort of defamation, and in particular with libel; 10 it does not purport to address a cause of action for invasion of privacy by false light publicity. In contending, nonetheless, that section 45a should extend to the latter cause of action so as to bar Fellows' false light claim just as it did his now abandoned libel claim, Enquirer asserts that we must follow the example of Werner v. Times-Mirror Co., supra, and conclude that section 45a, like section 48a, represents a legislative policy equally applicable to both types of cases. Examination of the purposes of the statute establishes that this conclusion would be unwarranted and incorrect.
The purpose of section 45a was explained by Justice Traynor in MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 550, 343 P.2d 36, thus:
“The purpose of the rule requiring proof of special damages when the defamatory meaning does not appear on the face of the language used is to protect publishers who make statements innocent in themselves that are defamatory only because of extrinsic facts known to the reader. For example, a newspaper might erroneously report that ‘Mrs. A gave birth to a child last night.’ Mrs. A has been married only a month. The language used will take on a defamatory meaning only to those who know when Mrs. A was married, and many of them will also know that the paper made a mistake. In such a case, general damages for loss of reputation may be trivial, and the paper's mistake may have been innocent, for the content of its report would not alert it to the possibility of defamation. It is not unreasonable therefore to require proof of special damages to establish a cause of action.”
This analysis clearly shows that section 45a is specifically concerned not just with the tort of defamation but in particular with its protection of the plaintiff's reputation, i.e., “the estimation in which [plaintiff] is generally held” by others. (Webster's Third New International Dictionary (1981), p. 1929.) Reputation, however, is not the interest affected, protected, or compensated in invasion of privacy cases. As was explained in Fairfield v. American Photocopy etc. Co., supra, and the numerous cases following it, the wrong inflicted by an invasion of privacy is a direct injury to the plaintiff's feelings and peace of mind, and compensation is awarded for that injury, not for loss of standing in the eyes of others.11
Fellows' second amended complaint studiously observed this distinction by deleting the allegation of injury to reputation which his prior pleadings of the privacy count had included. And in his reply brief before this court Fellows squarely affirms that he “has relinquished any claim for damage to his reputation resulting from the publication.” We agree that this necessarily follows, not only from the content of the pleading at bar but also by virtue of the fundamental conceptual basis of the right of privacy, intrinsically different from the right to freedom from defamation. (See, e.g., Fairfield v. American Photocopy etc. Co., supra, 138 Cal.App.2d at p. 86, 291 P.2d 194; Note, False Light: Invasion of Privacy? (1979) 15 Tulsa L.J. 113, 116–119, 126–127, 137–138 (distinguishing the interests affected by invasion of privacy and defamation, criticizing “Prosser's identification of a reputation interest in cases involving false light invasion of privacy,” and urging that recovery in false light cases extend only to “the mental anguish suffered as a result of the publicized falsehood” and not to injury to reputation).) But by the same token, section 45a's effort to screen cases in which “general damages for loss of reputation may be trivial” (MacLeod v. Tribune Publishing Co., supra, 52 Cal.2d at p. 550, 343 P.2d 36) neither recognizes nor addresses the different, non-reputational interests protected, and injuries redressed, in invasion of privacy actions.
Enquirer's suggested analogy between the present case and the hypothetical Justice Traynor posed in MacLeod, supra, concerning a report of childbirth by a recently married woman, thus does not withstand analysis. It is true that the hypothetical parallels Fellows' now abandoned libel claim in that Fellows may have suffered damage to his reputation for moral rectitude and fidelity to his wife by virtue of Enquirer's article only in the eyes of those who knew he was married. But that does not mean that Fellows did not suffer actual injury to his peace of mind and feelings by virtue of Enquirer's falsely proclaiming to the public that he was “the new man in [Dickinson's] life” and was “steady-dating [her] all over TinselTown.” At this stage of the proceeding we must take as true the allegations that he did. (Gill v. Curtis Publishing Co., supra, 38 Cal.2d at pp. 275, 280–281, 239 P.2d 630.) Thus, in this context it would be “unreasonable ․ to require proof of special damages to establish a cause of action” (MacLeod, supra, 52 Cal.2d at p. 550, 343 P.2d 36), because the only actual injury to be pleaded and proven in a suit for invasion of privacy is injury to peace of mind. (Fairfield v. American Photocopy etc. Co., supra, 138 Cal.App.2d at pp. 86–91, 291 P.2d 194; see also Diaz v. Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 136–137, 188 Cal.Rptr. 762 (approving an award of substantial damages on account of invasion of privacy by a humiliating newspaper article, “largely for emotional and psychological injury caused by the article,” and observing that the plaintiff's “special damages” in that case were the expenses of psychotherapy).) To apply section 45a's requirement of special damages to business or property to the present invasion of privacy case would shift the traditional focus of the cause of action to elements not necessarily or primarily involved. It would also engender the anomaly that a person who had suffered traditional “privacy” damages from false and disturbing publicity that was offensive but not libelous could proceed to recover those damages, while one who had so suffered on account of a publication that could be deemed libelous, but only by reference to extrinsic facts, could not.
Furthermore, section 45a's ascribed purpose “to protect publishers who make statements innocent in themselves that are defamatory only because of extrinsic facts known to the reader” (MacLeod, supra, 52 Cal.2d at p. 550, 343 P.2d 36) also misses the point of false light invasion of privacy cases generally and the present case in particular. The gravamen of a false light action is not defamatory meaning or impact.12 Rather, it is the publicizing of falsehoods that misrepresent an individual's character or behavior. Publicity and falsehood—defamatory or not—are the prime elements of the tort. And in this context, the “innocent publisher” is defined and protected by the United States Supreme Court's First Amendment decisions which bar false light actions based upon reports of public interest unless the report not only was false but was published with knowledge of or reckless disregard for its falsity. (Time, Inc. v. Hill, supra; Cantrell v. Forest City Publishing Co., supra.)
The protection thus afforded by the First Amendment is even broader in false light cases than in defamation cases, because the constitutional privilege extends so long as the publication is one of public interest, regardless of whether the plaintiff is a “public” or “private” figure. (See id., 419 U.S. at pp. 249–251, 95 S.Ct. at pp. 468–470.) Indeed, the Restatement Second of Torts suggests that knowing-or-reckless falsity may be required for false light causes of action generally. (Rest.2d Torts, § 652E & com. d.) On the other hand, a publisher of what the Supreme Court has termed a “calculated falsehood” (e.g., Time, Inc. v. Hill, supra, 385 U.S. at pp. 389–390, 87 S.Ct. at pp. 542–543) enjoys no constitutional protection (ibid.) and by definition is not an “innocent publisher.” In the present case, Fellows has alleged that Enquirer published the falsehood about him with the high degree of fault required by Time, Inc. v. Hill, and he will not be able to recover unless he sustains that allegation by proof (see generally Reader's Digest Assn. v. Superior Court, supra, 37 Cal.3d 244, 208 Cal.Rptr. 137, 690 P.2d 610), since a report of a celebrity's (i.e., Dickinson's) romantic activities qualifies as a matter of public interest (e.g., Eastwood v. Superior Court, supra, 149 Cal.App.3d at p. 423, 198 Cal.Rptr. 342).
We thus conclude that the specific purposes of section 45a's requirement of special damages to business or property for maintenance of an action for libel per quod are wholly inapposite to a cause of action for false light invasion of privacy, and that there is no warrant for extending the statute, which on its face concerns libel only, to bar the cause of action Fellows has asserted.13 This conclusion is not inconsistent with the decision in Werner v. Times-Mirror Co., supra, that the demand-for-correction requirements of section 48a for libel actions against newspapers should be extended to false light actions. In so holding, the Werner court perceived that section 48a embodied “a public policy as to publication by newspapers” which should not be evaded in false light cases brought against newspapers, while conceding that “no such barrier may exist insofar as other kinds of publication are concerned.” (193 Cal.App.2d at p. 122, 14 Cal.Rptr. 208.) The public policy of section 48a is to afford newspapers the latitude to publish “news while it is new,” without tedious self-censorship to avoid excessive general damage recoveries, by providing the alternative of a published correction as a substitute for general damages. (See Werner v. Southern Cal. etc. Newspapers (1950) 35 Cal.2d 121, 216 P.2d 825 (“Werner I ”).) “[T]he public interest in the free dissemination of news” (id., at p. 126, 216 P.2d 825) so fulfilled by section 48a extends equally to libel and false light cases. But section 45a is grounded in distinct policies concerning the tort of defamation which, as discussed above, simply are inapposite to the tort of invasion of privacy.
Enquirer places particular stress upon the Supreme Court's statement, in upholding the constitutionality of section 48a, that “[t]he Legislature could reasonably conclude that recovery of damages without proof of injury constitutes an evil.” (Werner I, supra, 35 Cal.2d at p. 126, 216 P.2d 825.) This was not, however, the purpose behind section 45a's requirement of special damages in actions for libel per quod, as the Supreme Court made clear in MacLeod v. Tribune Publishing Co., supra. Furthermore, the damages the Supreme Court referred to as “damages without proof of injury” (Werner I, supra, 35 Cal.2d at p. 126, 216 P.2d 825) were not damages to peace of mind and feelings as recoverable in privacy cases, but rather presumed damages to reputation. (Ibid.) Recovery of such damages in libel cases is now precluded by the First Amendment, except in cases of “calculated falsehood.” (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 349–350, 94 S.Ct. 2997, 3011–3012, 41 L.Ed.2d 789) By contrast, the damages recoverable for invasion of privacy are actual damages based upon proof of real injury. (See id. at p. 350, 94 S.Ct. at p. 3012; Fairfield v. American Photocopy etc. Co., supra, 138 Cal.App.2d at pp. 86–91, 291 P.2d 194.) 14
Enquirer's reliance on the line of authority holding that the privileges for various types of communications set forth in section 47, such as communications made in legislative or judicial proceedings (id., subd. (2)), apply to torts besides defamation is also misplaced. (See, e.g., Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d 386, 389–391, 182 Cal.Rptr. 438 and cases there cited.) The rationale of these decisions is this: in providing that certain communications are “privileged” the Legislature has determined that a public interest or policy is served by these types of communications, even when false, which outweighs the interest in allowing compensation for injury such a false communication may cause. But neither section 47 nor section 45a prescribes that a libel not defamatory on its face is a privileged communication, to be insulated from liability on account of a public interest it may serve. As discussed above, section 45a derives from an entirely different legislative determination, concerning the likelihood of serious injury to reputation by various types of libel. The cases involving privileged communications thus are not in point here.
Nor does our conclusion that section 45a does not bar Fellows' invasion of privacy action conflict with this court's recent decisions in Strick v. Superior Court (1983) 143 Cal.App.3d 916, 192 Cal.Rptr. 314 and Flynn v. Higham (1983) 149 Cal.App.3d 677, 197 Cal.Rptr. 145. In Strick we held that a plaintiff whose cause of action for libel was time-barred under section 3425.3 and Code of Civil Procedure section 340, subdivision (3) could not proceed with another, equivalent cause of action, for to do so would undercut the legislative policies of the statute of limitations and the Uniform Single Publication Act (§ 3425.3). Both of those statutes apply to invasion of privacy as well as libel causes of action, but neither of them is at issue or at risk in the present case. In Flynn, we simply applied settled authority that invasion of privacy and libel claims are personal to the individual named by the publication, and held that the subject's relatives could not avoid this rule by asserting a cause of action for intentional infliction of emotional distress. Here, Fellows asserts only a personal claim for invasion of privacy, and has abandoned the claim of intentional infliction of emotional distress upon his wife that the trial court dismissed.
Finally, we observe that in determining that section 45a's restriction upon actions for libel per quod does not apply to invasion of privacy by false light publicity we have given due consideration to Prosser's oft-cited expression of concern “whether this branch of the tort [of invasion of privacy] is not capable of swallowing up and engulfing the whole law of public defamation ․” (Prosser, supra, 48 Cal.L.Rev. at p. 401; quoted in, e.g., Werner v. Times-Mirror Co., supra, 193 Cal.App.2d at p. 120, 14 Cal.Rptr. 208.) Since that caution was first expressed in 1960, decisions clarifying the scope and limits of the cause of action have substantially mollified this concern. Thus, in California the demand-for-correction statute (§ 48a) is in full force with respect to false light actions (Werner v. Times-Mirror Corp., supra ), as are the defense of truth and the requirement of proving knowing-or-reckless falsity when the publication concerns a matter of public interest (Time, Inc. v. Hill, supra ), the one-year statute of limitations applicable to libel actions (Code Civ.Proc., § 340, subd. (3); see Cain v. State Farm Mut. Auto. Ins. Co. (1976) 62 Cal.App.3d 310, 313, 132 Cal.Rptr. 860), and the Uniform Single Publication Act (§ 3425.3), which in terms applies to both invasion of privacy and libel. However, as we have explained, to apply section 45a to the tort of false light invasion of privacy would be to extend a limitation on libel actions, concerned with the extent of injury to reputation, to bar an established cause of action in which such damage is neither implicated nor recoverable and which protects different, constitutionally grounded interests. Not only would this not subserve the purposes of section 45a; it would stand Prosser's concern on its head. A rule established to screen libel cases in which no substantial injury to reputation may have been suffered would “swallow up” a recognized remedy for non-reputational injuries occasioned by false publicity that may or may not be defamatory. Just as “[p]rivacy law is not identical to defamation and should be used neither to engulf it nor duplicate its remedy” (Note, False Light: Invasion of Privacy?, supra, 15 Tulsa L.J. at p. 137), the converse also holds true. Although Fellows may not recover damages for injury to his reputation in this case, his claim for injury to his privacy, peace of mind, and feelings occasioned by Enquirer's placing him in a false light in the public eye is not barred by section 45a.
The order of dismissal is reversed, and the case is remanded for further proceedings on the cause of action for invasion of privacy only, consistent with the views expressed herein.
1. Citations of sections herein are to the Civil Code. Section 45a reads as follows: “A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof. Special damage is defined in Section 48a of this code.” Section 48a, subdivision (4)(b) defines “special damages” as “all damages which plaintiff alleges and proves that he has suffered in respect to his property, business, trade, profession or occupation, including such amounts of money as the plaintiff alleges and proves he has expended as a result of the alleged libel, and no other.”
2. Apparently Fellows and his wife had dined with Ms. Dickinson and others at the restaurant mentioned in Enquirer's article, and the photograph that accompanied it was taken when the group emerged from the restaurant.
3. The court dismissed the cause of action for intentional infliction of emotional distress upon the distinct ground that Fellows had failed sufficiently to allege “outrageous conduct,” a necessary element of such a cause of action.
4. Section 45 defines libel as “a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” The complaint in Gill had alleged that defendants' publication had “caused plaintiffs to be held up to public ‘scorn, ridicule, hatred, contempt and obloquy and did rob and deprive plaintiffs of the benefits of public confidence, respect and esteem and injure said plaintiffs in their business and social contacts and associations and in their reputations and health’ ․” (38 Cal.2d at p. 276, 239 P.2d 630.)
5. Enquirer's suggestion that Fairfield is not relevant to the instant case because Fairfield was an “appropriation” not a “false light” case is thus completely unsound. These species of invasion of privacy have long overlapped. As noted above, the court in Fairfield expressed disapproval of the falsity of the defendant's publication and its implications as well as its unauthorized commercial use of plaintiff's name. A similar overlap of concerns is manifest throughout the “false light” and “appropriation” cases first catalogued and categorized by Prosser. (See Prosser, supra, 48 Cal.L.Rev. at pp. 398–406; see also Wade, Defamation and the Right of Privacy (1962) 15 Vand.L.Rev. 1093, 1096–1103.) Indeed, the many New York “false light” cases that culminated in the Supreme Court's announcement of a constitutional privilege for false light publicity in Time, Inc. v. Hill, supra, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 all arose under a New York statute which in terms addressed only invasion of privacy by advertising or trade use of one's name or picture (see id., at p. 376, fn. 1, 87 S.Ct. at p. 536, fn. 1).
6. Section 48a provides in relevant part: “[¶] 1. In any action for damages for the publication of a libel in a newspaper, or of a slander by radio broadcast, plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast, as hereinafter provided․ [¶] 2. If a correction be demanded within said period and be not published or broadcast in substantially as conspicuous a manner in said newspaper or on said broadcasting station as were the statements claimed to be libelous, in a regular issue thereof published or broadcast within three weeks after such service, plaintiff, if he pleads and proves such notice, demand and failure to correct, and if his cause of action be maintained, may recover general, special and exemplary damages; ․ [¶] 4. As used herein, the terms ‘general damages,’ ‘special damages,’ ‘exemplary damages' and ‘actual malice,’ are defined as follows: [¶] (a) ‘General damages' are damages for loss of reputation, shame, mortification and hurt feelings; [¶] (b) ‘Special damages' are all damages which plaintiff alleges and proves that he has suffered in respect to his property, business, trade, profession or occupation, including such amounts of money as the plaintiff alleges and proves he has expended as a result of the alleged libel, and no other; ․”
7. The court's generalized reference in Briscoe to a false light claim's requiring “proof of malice” was not fully informative. Depending upon the circumstances of the case, a libel claim may (or may not) require proof of one or more species of “malice.” (See, e.g., Burnett v. National Enquirer, Inc. (1983) 144 Cal.App.3d 991, 1005–1009, 193 Cal.Rptr. 206.) So too with a false light invasion of privacy claim. (See Cantrell v. Forest City Publishing Co. (1974) 419 U.S. 245, 251–252, 95 S.Ct. 465, 469–470, 42 L.Ed.2d 419.) In the context of Kapellas, malice was necessary to the libel claim in order to overcome section 47, subdivision (3)'s qualified privilege. The Briscoe opinion does not further indicate what type of “malice” plaintiff there had alleged.In the case at bar, Fellows' false light claim alleged the “actual malice” (i.e., knowing or reckless falsity) required to negative the First Amendment privilege as well as malice as required by section 3294 for imposition of punitive damages.
8. In Johnson v. Harcourt, Brace, Jovanovich, Inc. (1974) 43 Cal.App.3d 880, 887, fn. 6, 893, 118 Cal.Rptr. 370, the court paraphrased Kapellas' reference to libel and false light claims as regards malice and section 48a but did not analyze the matter any further.
9. Enquirer disputes this established distinction between the interests protected and compensated by defamation and false light invasion of privacy cases by reference to a statement by Prosser, later quoted by the United States Supreme Court, that the false light tort also is concerned with reputation. While California precedent cited above is consistent and controlling here, we note that the other distinguished sources upon which Enquirer relies support the California view as well.Thus, although Prosser's 1960 law review article stated that in false light claims “[t]he interest protected is clearly that of reputation, with the same overtones of mental distress as in defamation” (Prosser, supra, 48 Cal.L.Rev. at p. 400), the latest edition of his treatise now explains, in its section concerning false light invasion of privacy: “The action for defamation and the action for invasion of privacy should be carefully distinguished. The former is to protect a person's interest in a good reputation, and recovery is to be made available on the basis of legal concepts set forth in Chapter 19. The latter is to protect a person's interest in being let alone and is available when there has been publicity of a kind that is highly offensive.” (Prosser and Keeton on The Law of Torts (5th ed. 1984), p. 864.)Similarly, while the high court in the “right of publicity” case of Zacchini v. Scripps-Howard Broadcasting Co. (1977) 433 U.S. 562, 573, 97 S.Ct. 2849, 2856, 53 L.Ed.2d 965 quoted the language of Prosser's 1960 article set forth above, the court in its leading decision concerning the constitutional privilege applicable to false light cases explained more fully: “Commentators have likened the interest protected in those ‘privacy’ cases which focus upon the falsity of the matter to that protected in cases of libel and slander—injury to the reputation. See Prosser, Privacy, 48 Calif.L.Rev. 383, 398–401 (1960) ․ Many ‘right of privacy’ cases could in fact have been brought as ‘libel per quod’ actions, and several have been brought on both grounds. [Citations omitted.] Although not usually thought of in terms of ‘right of privacy,’ all libel cases concern public exposure by false matter, but the primary harm being compensated is damage to reputation. In the ‘right of privacy’ cases the primary damage is the mental distress from having been exposed to public view, although injury to reputation may be an element bearing upon such damage. [Citation omitted.] Moreover, ․ the published matter need not be defamatory, on its face or otherwise, and might even be laudatory and still warrant recovery․” (Time, Inc. v. Hill, supra, 385 U.S. at p. 384, fn. 9, 87 S.Ct. at p. 540, fn. 9; see also Cox Broadcasting Co. v. Cohn (1975) 420 U.S. 469, 498, fn. 2, 95 S.Ct. 1029, 1048, fn. 2, 43 L.Ed.2d 328 (conc. opn.) (“In Time, Inc. v. Hill [citation] the Court considered a state cause of action that afforded protection against unwanted publicity rather than damage to reputation through the publication of false statements of fact.”))
10. The suggestion that section 45a's general reference to “defamatory language not libelous on its face” rendered the statute applicable to oral defamation (slander) as well as libel was dispelled in White v. Valenta (1965) 234 Cal.App.2d 243, 254, 44 Cal.Rptr. 241.
11. Recognition of this distinction between defamation and invasion of privacy may be traced to no less venerable a source than the historic law review article which gave birth to the American law of privacy. In The Right to Privacy (1890) 4 Harv.L.Rev. 193, 197, Warren and Brandeis explained: “The principle on which the law of defamation rests, covers, however, a radically different class of effects from those for which attention is now asked. It deals only with damage to reputation, with the injury done to the individual in his external relations to the community, by lowering him in the estimation of his fellows. The matter published of him, however widely circulated, and however unsuited to publicity, must, in order to be actionable, have a direct tendency to injure him in his intercourse with others, and even if in writing or in print, must subject him to the hatred, ridicule, or contempt of his fellow-men,—the effect of the publication upon his estimate of himself and upon his own feelings not forming an essential element in the cause of action. In short, the wrongs and correlative rights recognized by the law of slander and libel are in their nature material rather than spiritual. That branch of the law simply extends the protection surrounding physical property to certain of the conditions necessary or helpful to worldly prosperity․”
12. Justice Kaus has astutely observed that even as to libel the effect of section 45a is broader than its avowed purpose. “If section 45a is only intended to protect publishers who are unaware that their writings may be interpreted in a defamatory sense, it should not apply in the situation ․ of the libel which is entirely innocuous on its face, but becomes defamatory because of extrinsic facts which are known to the writer ․ but the section, on its face, makes no such distinction.” (White v. Valenta, supra, 234 Cal.App.2d at p. 253, fn. 8, 44 Cal.Rptr. 241; see also id., at p. 257, fn. 14, 44 Cal.Rptr. 241.)
13. Enquirer has cited—and our independent research has disclosed—only one out-of-state decision which applied the requirement of special damages for libel per quod to a cause of action for invasion of privacy by false light publicity. (Fogel v. Forbes, Inc. (E.D.Pa.1980) 500 F.Supp. 1081 (diversity case under Pennsylvania law).) In so ruling, the court relied only upon an extract from comment e to section 652E of the Restatement Second of Torts, which the court in fact mischaracterized. That comment simply notes that the applicability to false light actions of various restrictions upon defamation actions is an open question, to be determined in each jurisdiction with appropriate regard to “the particular restrictive rule, the language of a particular statute, and the circumstances of the case ․” (See also Wade, Defamation and the Right of Privacy (1962) 15 Vand.L.Rev. 1093, 1109–1120.)
14. We note, moreover, that even as section 48a applies to false light actions against newspapers, Enquirer is in no position to rely upon that statute's conditional limitation of damages in resisting Fellows' instant cause of action, for two independent reasons. First, Enquirer rejected Fellows' demand for correction under section 48a. Second, Enquirer's periodical has been held not to be a “newspaper” within the coverage and protections of the statute. (Burnett v. National Enquirer, Inc., supra, 144 Cal.App.3d at p. 1005, 193 Cal.Rptr. 206.)
LUCAS, Associate Justice.
SPENCER, P.J., and L. THAXTON HANSON, J., concur.