CACI No. 1724. Fair and True Reporting Privilege (Civ. Code, § 47(d))

Judicial Council of California Civil Jury Instructions (2020 edition)

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1724.Fair and True Reporting Privilege (Civ. Code, § 47(d))
[Name of plaintiff] cannot recover damages from [name of defendant] if
[name of defendant] proves all of the following:
1. That [name of defendant]’s statement(s) [was/were] [reported in/
communicated to] [specify public journal in which statement(s)
appeared];
2. The [report/communication] was of [select the applicable statutory
context]
2. [a judicial, legislative, or other public official proceeding;]
2. [something said in the course of a judicial, legislative, or other
public official proceeding;]
2. [a verified charge or complaint made by any person to a public
official on which a warrant was issued;]
2. and
3. The [report/communication] was both fair and true.
New November 2017
Directions for Use
This instruction involves what is referred to as the “fair and true reporting privilege”
of Civil Code section 47(d). This statute grants an absolute privilege against
defamation for a fair and true report in, or a communication to, a public journal, of
a judicial, legislative, or other public official proceeding; or for anything said in the
course of the proceeding; or for a verified charge or complaint made by any person
to a public official, on which complaint a warrant has been issued.
An element of defamation is that the alleged defamatory statement is “unprivileged.”
(Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118 [166 Cal.Rptr.3d 569].) That
would seem to suggest that the plaintiff must prove that a privilege does not apply.
Nevertheless, courts have held that it is the defendant’s burden to prove that the
statement is within the scope of the privilege, including that it was fair and true.
(Burrill v. Nair (2013) 217 Cal.App.4th 357, 396 [158 Cal.Rptr.3d 332], disapproved
on another ground in Baral v. Schnitt (2016) 1 Cal.5th 376, 396, fn. 11 [205
Cal.Rptr.3d 475, 376 P.3d 604].)
Sources and Authority
• Fair and True Reporting Privilege. Civil Code section 47(d).
• “Under section 47, subdivision (d), the fair and true reporting privilege protects
a ‘fair and true report in, or a communication to, a public journal, of . . . a
judicial . . . proceeding, or . . . anything said in the course thereof.’ It too is an
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absolute privilege - that is, it applies regardless of the defendants’ motive for
making the report - and forecloses a plaintiff from showing a probability of
prevailing on the merits.” (Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768,
787 [214 Cal.Rptr.3d 358].)
• “The purpose of this privilege is to ensure the public interest is served by the
dissemination of information about events occurring in official proceedings and
with respect to verified charges or complaints resulting in the issuance of a
warrant.” (Burrill, supra, 217 Cal.App.4th at p. 397.)
• “Prior to 1997 subdivision (d) applied only to a fair and true report in a public
journal. Senate Bill No. 1540 (1995-1996 Reg. Sess.), sponsored by the
California Newspapers Publishers Association, amended the provision, effective
January 1, 1997, to add ‘or a communication to,’ so the privilege would extend,
as it does now, to both a fair and true report in and a communication to a public
journal concerning judicial, legislative or other public proceedings.” (J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87, 97
[201 Cal.Rptr.3d 782], original italics.)
• “The privilege applies if the substance of the publication or broadcast captures
the gist or sting of the statements made in the official proceedings.” (Burrill,
supra, 217 Cal.App.4th at p. 398.)
• “The defendant is entitled to a certain degree of ‘ “flexibility/literary license” ’ in
this regard, such that the privilege will apply even if there is a slight inaccuracy
in details - one that does not lead the reader to be affected differently by the
report than he or she would be by the actual truth.” (Argentieri, supra, 8
Cal.App.5th at pp. 787-788.)
• “[Plaintiff] further contends it was for a jury, not the trial court, to decide
whether [defendant]’s Statement was a fair and true report. Courts have stated
that the fairness and truth of a report is an issue of fact for the jury, if there is
any material factual dispute on the issue.” (Argentieri, supra, 8 Cal.App.5th at p.
791, original italics.)
• “ ‘[W]hether or not a privileged occasion exists is for the court to decide, while
the effect produced by the particular words used in an article [or broadcast] and
the fairness of the report is a question of fact for the jury [citation].’ ‘[T]he
publication is to be measured by the natural and probable effect it would have
on the mind of the average reader [citations]. The standard of interpretation to be
used in testing alleged defamatory language is how those in the community
where the matter was published would reasonably understand it [citation]. In
determining whether the report was fair and true, the article [or broadcast] must
be regarded from the standpoint of persons whose function is to give the public
a fair report of what has taken place. The report is not to be judged by the
standard of accuracy that would be adopted if it were the report of a professional
law reporter or a trained lawyer [citation].’ ” (Burrill, supra, 217 Cal.App.4th at
p. 398, internal citation omitted.)
• “At the very least, the difference between these accusations presents a question
CACI No. 1724 DEFAMATION
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of fact with respect to whether the average listener would understand the
broadcast to capture the gist or sting of the citizen’s complaint, or whether the
charge made in the broadcast would affect the listener differently than that made
in the citizen’s complaint.” (Burrill, supra, 217 Cal.App.4th at p. 398.)
• “In evaluating the effect a publication has on the average reader, the challenged
language must be viewed in context to determine whether, applying a ‘totality of
the circumstances’ test, it is reasonably susceptible to the defamatory meaning
alleged by the plaintiff: ‘ “[A] defamatory meaning must be found, if at all, in a
reading of the publication as a whole.” [Citation.] “This is a rule of reason.
Defamation actions cannot be based on snippets taken out of context.” ’ (J-M
Manufacturing Co., Inc., supra, 247 Cal.App.4th at p. 97, internal citations
omitted.)
• “[Defendant] bears the burden of proving the privilege applies.” (Burrill, supra,
217 Cal.App.4th at p. 396.)
• “ ‘A report of a judicial proceeding implies that some official action has been
taken by the officer or body whose proceedings are thus reported. The
publication, therefore, of the contents of preliminary pleadings such as a
complaint or petition, before any judicial action has been taken is not within the
rule stated in this Section. An important reason for this position has been to
prevent implementation of a scheme to file a complaint for the purpose of
establishing a privilege to publicize its content and then dropping the action.
(See Comment c). It is not necessary, however, that a final disposition be made
of the matter in question; it is enough that some judicial action has been taken
so that, in the normal progress of the proceeding, a final decision will be
rendered.’ ” (Burrill, supra, at p. 397, quoting Restatement 2d of Torts, § 611,
comment e.)
Secondary Sources
9 Witkin, Summary of California Law (10th ed. 2005) Torts, § 586
4 Levy et al., California Torts, Ch. 45, Intentional Torts and Other Theories of
Recovery, § 45.11 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.64
(Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander, § 142.51 (Matthew
Bender)
1725-1729. Reserved for Future Use
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