California Civil Jury Instructions (CACI)

1723. Qualified Privilege (Civ. Code, § 47(c))

Under the circumstances of this case, [name of plaintiff] cannot recover damages from [name of defendant], even if the statement(s) [was/were] false, unless [he/she] also proves that [name of defendant] acted with hatred or ill will toward [him/her].

If [name of defendant] acted without reasonable grounds for believing the truth of the statement(s), this is a factor you may consider in determining whether [he/she] acted with hatred or ill will toward [name of plaintiff].

New September 2003

Directions for Use

This instruction is applicable only if the judge determines that the conditions supporting the Civil Code section 47(c) privilege have arisen.

The judge determines all the other Civil Code section 47 privileges as a matter of law.

Sources and Authority

  • Civil Code section 47(c) grants a conditional privilege against defamation to communications made without malice on subjects of mutual interest. A privileged publication is made “without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.”
  • Civil Code section 48 provides that, with respect to section 47(c), “malice is not inferred from the communication.”
  • For purposes of this section “malice has been defined as ‘a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person.’ ” (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 723 [257 Cal.Rptr. 708, 771 P.2d 406], internal citation omitted.)
  • “[M]aliciousness cannot be derived from negligence. Malice entails more than sloppiness or, as in this case, an easily explained typo.” (Bierbower v. FHP, Inc. (1999) 70 Cal.App.4th 1, 9 [82 Cal.Rptr.2d 393].)
  • Instructing the jury on “malice” as defined in the context of the common- interest privilege is insufficient by itself to impose liability for defamation. (Carney v. Santa Cruz Women Against Rape (1990) 221 Cal.App.3d 1009, 1016 [271 Cal.Rptr. 30].) Even in matters of private interest, the jury must find that the defendant was at least negligent. (Ibid.)
  • While defendants have the burden of proving that an allegedly defamatory statement falls within the scope of the common-interest privilege, plaintiffs have the burden of proving that that the statement was made with malice. (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d 1279].)
  • “[I]f malice is shown, the privilege is not merely overcome; it never arises in the first instance… [T]he characterization of the privilege as qualified or conditional is incorrect to the extent that it suggests the privilege is defeasible.” (Brown, supra, 48 Cal.3d at p. 723, fn. 7.)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 163, 556, 585—600

4 Levy et al., California Torts, Ch. 45, Defamation, § 45.12 (Matthew Bender)

30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.66 (Matthew Bender)

14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation), § 142.53 (Matthew Bender)

1 California Civil Practice: Torts (Thomson West) §§ 21:40—21:41