CACI No. 1721. Affirmative Defense - Consent

Judicial Council of California Civil Jury Instructions (2020 edition)

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1721.Affirmative Defense - Consent
[Name of defendant] is not responsible for [name of plaintiff]’s harm, if
any, if [he/she/nonbinary pronoun] proves that [name of plaintiff]
consented, by words or conduct, to [name of defendant]’s communication
of the statement(s) to others. In deciding whether [name of plaintiff]
consented to the communication, you should consider the circumstances
surrounding the words or conduct.
New September 2003; Revised October 2008
Sources and Authority
• Restatement Second of Torts, section 583, provides, in part: “[T]he consent of
another to the publication of defamatory matter concerning him is a complete
defense to his action for defamation.”
• “One of the oldest and most widely recognized defenses to the publication of
defamatory matter is the doctrine of consent, which has been classified as a form
of absolute privilege.” (Royer v. Steinberg (1979) 90 Cal.App.3d 490, 498 [153
Cal.Rptr. 499].)
• “One of the primary purposes of the doctrine of consent in defamation law is to
prevent a party from inviting or inducing indiscretion and thereby laying the
foundation of a lawsuit for his own pecuniary gain.” (Royer, supra, 90
Cal.App.3d at p. 499.)
• This rule applies when the plaintiff asks the defendant to repeat the statement to
others and when the plaintiff himself repeats the statements to others. (Royer,
supra, 90 Cal.App.3d at p. 498 [but see CACI No. 1708, Coerced Self-
Publication].)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 590
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.68
(Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§ 142.54 (Matthew Bender)
1 California Civil Practice: Torts (Thomson Reuters) § 21:28
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