California Civil Jury Instructions (CACI) (2017)

1801. Public Disclosure of Private Facts

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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;
(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.)
• “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.) “[M]atter
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.)
• “[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].)
• “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.” (Johnson v. Harcourt, Brace,
Jovanovich, Inc. (1974) 43 Cal.App.3d 880, 891, fn. 11 [118 Cal.Rptr. 370].)
• “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.)
• “We have previously set forth criteria for determining whether an incident is
newsworthy. We consider ‘[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.)
• “[L]imiting liability for public disclosure of private facts to those recorded in a
writing is contrary to the tort’s purpose, which has been since its inception to
allow a person to control the kind of information about himself made available
to the public—in essence, to define his public persona. While this restriction
may have made sense in the 1890’s—when no one dreamed of talk radio or
confessional television—it certainly makes no sense now. Private facts can be
just as widely disclosed—if not more so—through oral media as through written
ones. To allow a plaintiff redress for one kind of disclosure but not the other,
when both can be equally damaging to privacy, is a rule better suited to an era
when the town crier was the principal purveyor of news. It is long past time to
discard this outmoded rule.” (Ignat v. Yum! Brands, Inc. (2013) 214 Cal.App.4th
808, 819 [154 Cal.Rptr.3d 275], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 664–667
4Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.03 (Matthew
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.32 (Matthew
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.20 (Matthew Bender)
1 California Civil Practice: Torts §§ 20:1–20:2 (Thomson Reuters)