California Civil Jury Instructions (CACI)

1801. Public Disclosure of Private Facts

[Name of plaintiff] claims that [name of defendant] violated [his/her] right to privacy. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] publicized private information concerning [name of plaintiff];

2. That a reasonable person in [name of plaintiff]’s position would consider the publicity highly offensive;

3. That [name of defendant] knew, or acted with reckless disregard of the fact, that a reasonable person in [name of plaintiff]’s position would consider the publicity highly offensive;

4. That the private information was not of legitimate public concern [or did not have a substantial connection to a matter of legitimate public concern];

5. That [name of plaintiff] was harmed; and

6. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

In deciding whether the information was a matter of legitimate public concern, you should consider, among other factors, the following:

(a) The social value of the information;

(b) The extent of the intrusion into [name of plaintiff]’s privacy; [and]

(c) Whether [name of plaintiff] consented to the publicity explicitly or by voluntarily seeking public attention or a public office; [and]

(d) [Insert other applicable factor].

[In deciding whether [name of defendant] publicized the information, you should determine whether it was made public either by communicating it to the public at large or to so many people that the information was substantially certain to become public knowledge.]

New September 2003

Directions for Use

If the plaintiff is asserting more than one privacy right, give an introductory instruction stating that a person’s right to privacy can be violated in more than one way and listing the legal theories under which the plaintiff is suing.

Comment (a) to Restatement Second of Torts, section 652D states that “publicity” “means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.” This point has been placed in brackets because it may not be an issue in every case.

Sources and Authority

  • “[T]he allegations involve a public disclosure of private facts. The elements of this tort are ‘ “(1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.” ’ The absence of any one of these elements is a complete bar to liability.” (Moreno v. Hanford Sentinel, Inc. (2009) 172 Cal.App.4th 1125, 1129—1130 [91 Cal.Rptr.3d 858], internal citations omitted.)
  • Restatement Second of Torts, section 652D provides:

    One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

    (a) would be highly offensive to a reasonable person, and

    (b) is not of legitimate concern to the public.

  • “California common law has generally followed Prosser’s classification of privacy interests as embodied in the Restatement.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 24 [26 Cal.Rptr.2d 834, 865 P.2d 633], internal citation omitted.)
  • “Generally speaking, matter which is already in the public domain is not private, and its publication is protected.” (Diaz v. Oakland Tribune (1983) 139 Cal.App.3d 118, 131 [188 Cal.Rptr. 762], internal citations omitted.) However, “matter which was once of public record may be protected as private facts where disclosure of that information would not be newsworthy.” (Id. at p. 132.)
  • Because of the right to freedom of speech, the Supreme Court has stated: “[W]e find it reasonable to require a plaintiff to prove, in each case, that the publisher invaded his privacy with reckless disregard for the fact that reasonable men would find the invasion highly offensive.” (Briscoe v. Reader’s Digest Assn., Inc. (1971) 4 Cal.3d 529, 542—543 [93 Cal.Rptr. 866, 483 P.2d 34].)
  • In Johnson v. Harcourt, Brace, Jovanovich, Inc. (1974) 43 Cal.App.3d 880, 891, fn. 11 [118 Cal.Rptr. 370], the court observed: “If a jury finds that a publication discloses private facts which are ‘highly offensive and injurious to the reasonable man’ [citation] then it would inter alia also satisfy the reckless disregard requirement.”
  • Diaz . . . expressly makes the lack of newsworthiness part of the plaintiff’s case in a private facts action… We therefore agree with defendants that under California common law the dissemination of truthful, newsworthy material is not actionable as a publication of private facts.” (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 215 [74 Cal.Rptr.2d 843, 955 P.2d 469], internal citations omitted.)
  • “In the matter before us, however, there is no indication that any issue of public interest or freedom of the press was involved. ‘ “In determining what is a matter of legitimate public interest, account must be taken of the customs and conventions of the community; and in the last analysis what is proper becomes a matter of the community mores. The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern.” ’ Put another way, morbid and sensational eavesdropping or gossip ‘serves no legitimate public interest and is not deserving of protection. [Citations.]’ ” (Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 874 [104 Cal.Rptr.3d 352], internal citation omitted.)
  • “Almost any truthful commentary on public officials or public affairs, no matter how serious the invasion of privacy, will be privileged.” (Briscoe, supra, 4 Cal.3d at p. 535, fn. 5.)
  • Courts have devised a three-part test for evaluating newsworthiness: “ ‘[1] the social value of the facts published, [2] the depth of the article’s intrusion into ostensibly private affairs, and [3] the extent to which the party voluntarily acceded to a position of public notoriety.’ ” (Briscoe, supra, 4 Cal.3d at p. 541, internal citations omitted.)
  • “[T]he right of privacy is purely personal. It cannot be asserted by anyone other than the person whose privacy has been invaded.” (Moreno, supra, 172 Cal.App.4th at p. 1131.)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 664—667

4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.03 (Matthew Bender)

37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.32 (Matthew Bender)

18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy, § 184.20 (Matthew Bender)

1 California Civil Practice: Torts (Thomson West) §§ 20:1—20:2