CACI No. 1802. False Light

Judicial Council of California Civil Jury Instructions (2020 edition)

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1802.False Light
[Name of plaintiff] claims that [name of defendant] violated
[his/her/nonbinary pronoun] right to privacy. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of defendant] publicly disclosed information or
material that showed [name of plaintiff] in a false light;
2. That the false light created by the disclosure 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 disclosure 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 disclosure;]
4. [That [name of plaintiff] was harmed; and]
4. [or]
4. [That [name of plaintiff] sustained harm to [his/her/nonbinary
pronoun] 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.
New September 2003; Revised November 2017, May 2018, November 2018
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.
False light claims are subject to the same constitutional protections that apply to
defamation claims. (Briscoe v. Reader’s Digest Assn. (1971) 4 Cal.3d 529, 543 [93
Cal.Rptr. 866, 483 P.2d 34], overruled on other grounds in Gates v. Discovery
Communications, Inc. (2004) 34 Cal.4th 679, 696, fn. 9 [21 Cal.Rptr.3d 663, 101
P.3d 552] [false light claim should meet the same requirements of a libel claim,
including proof of malice when required].) Thus, a knowing violation of or reckless
disregard for the plaintiff’s rights is required if the plaintiff is a public figure. (See
Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 721-722 [257 Cal.Rptr. 708,
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771 P.2d 406].) Give the first option for element 3 if the disclosure involves a
public figure. Give the second option for a private citizen, at least with regard to a
matter of private concern. (See id. at p. 742 [private person need prove only
negligence rather than malice to recover for defamation].)
There is perhaps some question as to which option for element 3 to give for a
private person if the matter is one of public concern. For defamation, a private
figure plaintiff must prove malice to recover presumed and punitive damages for a
matter of public concern, but not to recover for damages to reputation. (Khawar v.
Globe Internat. (1998) 19 Cal.4th 254, 273-274 [79 Cal.Rptr.2d 178, 965 P.2d
696].) No case has been found that provides for presumed damages for a false light
violation. Therefore, the court will need to decide whether proof of malice is
required from a private plaintiff even though the matter may be one of public
concern.
If the jury will also be instructed on defamation, an instruction on false light would
be superfluous and therefore need not be given. (See Eisenberg v. Alameda
Newspapers (1999) 74 Cal.App.4th 1359, 1385, fn. 13 [88 Cal.Rptr.2d 802]; see
also Briscoe, supra, 4 Cal.3d at p. 543.) For defamation, utterance of a defamatory
statement to a single third person constitutes sufficient publication. (Cunningham v.
Simpson (1969) 1 Cal.3d 301, 307 [81 Cal.Rptr. 855, 461 P.2d 39]; but see Warfield
v. Peninsula Golf & Country Club (1989) 214 Cal.App.3d 646, 660 [262 Cal.Rptr.
890] [false light case holding that “account” published in defendant’s membership
newsletter does not meet threshold allegation of a general public disclosure].)
Sources and Authority
• “ ‘False light is a species of invasion of privacy, based on publicity that places a
plaintiff before the public in a false light that would be highly offensive to a
reasonable person, and where the defendant knew or acted in reckless disregard
as to the falsity of the publicized matter and the false light in which the plaintiff
would be placed.” (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1264
[217 Cal.Rptr.3d 234].)
• “A ‘false light’ claim, like libel, exposes a person to hatred, contempt, ridicule,
or obloquy and assumes the audience will recognize it as such.” (De Havilland v.
FX Networks, LLC (2018) 21 Cal.App.5th 845, 865 [230 Cal.Rptr.3d 625].)
• “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
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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 and fulfillment of the requirements of [the retraction statute]
section 48a [of the Civil Code].” ’ ” (Briscoe, supra, 4 Cal.3d at p. 543, internal
citation omitted.)
• “Because in this defamation action [plaintiff] is a private figure plaintiff, he was
required to prove only negligence, and not actual malice, to recover damages for
actual injury to his reputation. But [plaintiff] was required to prove actual malice
to recover punitive or presumed damages . . . .” (Khawar,supra, 19 Cal.4th at
p. 274.)
• “To defeat [defendant] ‘s anti-SLAPP motion on her false light claim, [plaintiff],
as a public figure, must demonstrate a reasonable probability she can prove
[defendant] broadcast statements that are (1) assertions of fact, (2) actually false
or create a false impression about her, (3) highly offensive to a reasonable
person or defamatory, and (4) made with actual malice.” (De Havilland, supra,
21 Cal.App.5th at p. 865.)
• “[Plaintiff] does not dispute that she is a public figure. . . . Accordingly, the
Constitution requires [plaintiff] to prove by clear and convincing evidence that
[defendant] ‘knew the [docudrama] would create a false impression about [her]
or acted with reckless disregard for the truth.’ (CACI No. 1802.)” (De
Havilland, supra, 21 Cal.App.5th at p. 869.)
• “Publishing a fictitious work about a real person cannot mean the author, by
virtue of writing fiction, has acted with actual malice.” (De Havilland, supra, 21
Cal.App.5th at p. 869.)
• “[I]n cases where the claimed highly offensive or defamatory aspect of the
portrayal is implied, courts have required plaintiffs to show that the defendant ‘
“intended to convey the defamatory impression.” ’ [Plaintiff] must demonstrate
‘that [defendant] either deliberately cast [her] statements in an equivocal fashion
in the hope of insinuating a defamatory import to the reader, or that [it] knew
or acted in reckless disregard of whether [its] words would be interpreted by the
average reader as defamatory statements of fact.’ Moreover, because actual
malice is a ‘deliberately subjective’ test, liability cannot be imposed for an
implication that merely ‘ “should have been foreseen.” ’ ” (De Havilland, supra,
21 Cal.App.5th at pp. 869-870, internal citations 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.)
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• “[T]he constitutional protections for speech and press preclude the application of
the New York statute to redress false reports of matters of public interest in the
absence of proof that the defendant published the report with knowledge of its
falsity or in reckless disregard of the truth.” (Time, Inc. v. Hill (1967) 385 U.S.
374, 387-388 [87 S.Ct. 534, 17 L.Ed.2d 456].)
• “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
9 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 781-783
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 §§ 20:12-20:15 (Thomson Reuters)
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