California Civil Jury Instructions (CACI)
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;]
[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]
[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.]
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.
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 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.)
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 673—675
4 Levy 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