California Civil Jury Instructions (CACI) (2017)

1802. False Light

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1802.False Light
[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 information or material that
showed [name of plaintiff] in a false light;
2. That the false light created by the publication would be highly
offensive to a reasonable person in [name of plaintiff]’s position;
3. [That there is clear and convincing evidence that [name of
defendant] knew the publication would create a false impression
about [name of plaintiff] or acted with reckless disregard for the
truth;]
3. [or]
3. [That [name of defendant] was negligent in determining the truth
of the information or whether a false impression would be
created by its publication;]
4. [That [name of plaintiff] was harmed; and]
4. [or]
4. [That [name of plaintiff] sustained harm to [his/her] property,
business, profession, or occupation [including money spent as a
result of the statement(s)]; and]
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[In deciding whether [name of defendant] publicized the information or
material, 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 or material 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.
The bracketed options for element 3 should be used in the alternative, depending
on whether the conduct involves a matter of public concern.
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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.
As reflected in the citations below, false light claims are subject to the same
constitutional protections that apply to defamation claims. Thus, a knowing
violation or reckless disregard for the plaintiff’s rights is required where the
plaintiff is a public figure or the subject matter of the communication is a matter of
public concern. If a false light claim is combined with a defamation or libel claim,
the standard applied in the instructions should be equivalent.
If plaintiff has combined a false light claim with a claim of defamation or libel, the
court should consider whether separate instructions on each claim should be given
in light of Eisenberg v. Alameda Newspapers (1999) 74 Cal.App.4th 1359, 1385,
fn. 13 [88 Cal.Rptr.2d 802] and Briscoe v. Reader’s Digest Assn. (1971) 4 Cal.3d
529, 543 [93 Cal.Rptr. 866, 483 P.2d 34].
Sources and Authority
• Restatement Second of Torts, section 652E provides:
One who gives publicity to a matter concerning another that places the other
before the public in a false light is subject to liability to the other for invasion
of his privacy, if
(a) the false light in which the other was placed would be highly
offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to
the falsity of the publicized matter and the false light in which the
other would be placed.
• “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.)
• “In order to be actionable, the false light in which the plaintiff is placed must
be highly offensive to a reasonable person. Although it is not necessary that the
plaintiff be defamed, publicity placing one in a highly offensive false light will
in most cases be defamatory as well.” (Fellows v. National Enquirer (1986) 42
Cal.3d 234, 238–239 [228 Cal.Rptr. 215, 721 P.2d 97], internal citation
omitted.)
• “When a false light claim is coupled with a defamation claim, the false light
claim is essentially superfluous, and stands or falls on whether it meets the
same requirements as the defamation cause of action.” (Eisenberg, supra, 74
Cal.App.4th at p. 1385, fn. 13, internal citations omitted.)
• “[A] ‘false light’ cause of action ‘is in substance equivalent to . . . [a] libel
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claim, and should meet the same requirements of the libel claim . . . including
proof of malice.’ ” (Briscoe, supra, 4 Cal.3d at p. 543, internal citation
omitted.)
• “The New York Times decision defined a zone of constitutional protection within
which one could publish concerning a public figure without fear of liability.
That constitutional protection does not depend on the label given the stated
cause of action; it bars not only actions for defamation, but also claims for
invasion of privacy.” (Reader’s Digest Assn., Inc. v. Superior Court (1984) 37
Cal.3d 244, 265 [208 Cal.Rptr. 137, 690 P.2d 610], internal citations omitted.)
• In Time, Inc. v. Hill (1967) 385 U.S. 374 [87 S.Ct. 534, 17 L.Ed.2d 456], the
Court held that the New York Times v. Sullivan malice standard applied to a
privacy action that was based on a “false light” statute where the matter
involved a public figure. Given the similarities between defamation and false
light actions, it appears likely that the negligence standard for private figure
defamation plaintiffs announced in Gertz v. Robert Welch, Inc. (1974) 418 U.S.
323 [94 S.Ct. 2997, 41 L.Ed.2d 789] should apply to private figure false light
plaintiffs.
• Plaintiffs must comply with the retraction statute (Civ. Code, § 48a) to recover
more than special damages in a false light cause of action. (Briscoe, supra, 4
Cal.3d at p. 543.)
• “We hold that whenever a claim for false light invasion of privacy is based on
language that is defamatory within the meaning of section 45a, pleading and
proof of special damages are required.” (Fellows, supra, 42 Cal.3d at p. 251.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 673–675
4Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.04 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.33 (Matthew
Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.21 (Matthew Bender)
1 California Civil Practice: Torts (Thomson West) §§ 20:12–20:15
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