CACI No. 1708. Coerced Self-Publication

Judicial Council of California Civil Jury Instructions (2022 edition)

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1708.Coerced Self-Publication
[Name of plaintiff] claims that [name of defendant] is responsible for [his/
her/nonbinary pronoun] harm even though [name of defendant] did not
communicate the statement(s) to anyone other than [name of plaintiff]. To
succeed, [name of plaintiff] must prove all of the following:
1. That [name of defendant] made the statement(s) to [name of
plaintiff];
2. That [name of plaintiff] was under strong pressure to
communicate [name of defendant]’s statement(s) to another
person; and
3. That when [name of defendant] made the statements,
[he/she/nonbinary pronoun] should have known that [name of
plaintiff] would be under strong pressure to communicate them to
another person.
If [name of plaintiff] has proved all of the above, then you must find that
[name of defendant] was responsible for the communication of the
statement(s).
New September 2003
Sources and Authority
The general rule is that “[a] plaintiff cannot manufacture a defamation cause of
action by publishing the statements to third persons; the publication must be
done by the defendant.” The exception to the rule occurs “when it [is]
foreseeable that the defendant’s act would result in plaintiff’s publication to a
third person.” (Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d
1277, 1284 [286 Cal.Rptr. 198].)
[A] “self-publication of the alleged defamatory statement may be imputed to the
originator of the statement if ‘the person defamed is operating under a strong
compulsion to republish the defamatory statement and the circumstances which
create the strong compulsion are known to the originator of the defamatory
statement at the time he communicates it to the person defamed.’ (Davis v.
Consolidated Freightways (1994) 29 Cal.App.4th 354, 373 [34 Cal.Rptr.2d 438],
quoting McKinney v. County of Santa Clara (1980) 110 Cal.App.3d 787,
797-798 [168 Cal.Rptr. 89].)
“This exception has been limited to a narrow class of cases, usually where a
plaintiff is compelled to republish the statements in aid of disproving them.”
(Live Oak Publishing Co., supra, 234 Cal.App.3d at p. 1285.)
To determine if the coercion exception applies, the test is “whether ‘because of
some necessity he was under to communicate the matter to others, it was
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reasonably to be anticipated that he would do so.’ (Live Oak Publishing Co.,
supra, 234 Cal.App.3d at p. 1285.)
“[W]hile compelled self-published defamation per se technically eliminates the
need for publication by the defendant to a third party, a plaintiff cannot
manufacture the defamation claim by simply publishing statements to a third
party because the plaintiff must disclose contents of the employers statement to
a third party after reading or being informed of the contents. The originator of
the statement is liable for the foreseeable repetition because of the causal link
between the originator and the presumed damage to the plaintiff’s reputation, but
the publication must be foreseeable. The presumed injury is no less damaging
because the plaintiff was compelled to make the statement instead of the
employer making it directly to the third party.” (Tilkey v. Allstate Ins. Co. (2020)
56 Cal.App.5th 521, 542 [270 Cal.Rptr.3d 559], original italics, internal citations
omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 633, 722
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§ 142.22 (Matthew Bender)
California Civil Practice: Torts § 21:15 (Thomson Reuters)
DEFAMATION CACI No. 1708
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