CACI No. 1806. Affirmative Defense to Invasion of Privacy - First Amendment Balancing Test - Public Interest

Judicial Council of California Civil Jury Instructions (2023 edition)

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1806.Affirmative Defense to Invasion of Privacy - First
Amendment Balancing Test - Public Interest
[Name of defendant] claims that [he/she/nonbinary pronoun] has not
violated [name of plaintiff]’s right of privacy because the public interest
served by [name of defendant]’s [specify privacy violation, e.g., use of
[name of plaintiff]’s name, likeness, or identity] outweighs [name of
plaintiff]’s privacy interests. In deciding whether the public interest
outweighs [name of plaintiff]’s privacy interest, you should consider all of
the following:
a. Where the information was used;
b. The extent of the use;
c. The public interest served by the use;
d. The seriousness of the interference with [name of plaintiff]’s
privacy; and
e. [specify other factors].
New June 2015
Directions for Use
This instruction sets forth a balancing test for a claim for invasion of privacy. A
defendant’s First Amendment right to freedom of expression and freedom of the
press can, in some cases, outweigh the plaintiff’s right of privacy (See Gionfriddo v.
Major League Baseball (2001) 94 Cal.App.4th 400, 409-410 [114 Cal.Rptr.2d 307];
see also Gill v. Hearst Publishing Co. Inc. (1953) 40 Cal.2d 224, 228-231 [253 P.2d
441].) This balancing test is an affirmative defense. (See Comedy III Productions,
Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 407 [106 Cal.Rptr.2d 126, 21 P.3d
797]; CACI No. 1805, Affırmative Defense to Use or Appropriation of Name or
Likeness - First Amendment (Comedy III).)
A First-Amendment defense based on newsworthiness has been allowed for the
defendant’s use of the plaintiff’s name or likeness. (See Gionfriddo,supra, 94
Cal.App.4th at pp. 409-411; see CACI No. 1804A.) It has also been allowed for
privacy claims based on intrusion into private affairs (see CACI No. 1800) and
public disclosure of private facts (See CACI No. 1802; Shulman v. Group W
Productions, Inc. (1998) 18 Cal.4th 200, 214-242 [74 Cal.Rptr.2d 843, 955 P.2d
469].) It has also been allowed for a claim that the plaintiff had been presented in a
false light (See CACI No. 1802; Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273,
278-279 [239 P.2d 630] [magazine’s use of plaintiffs’ picture in connection with
article on divorce suggested that they were not happily married].)
Sources and Authority
“[N]o cause of action will lie for the ‘[p]ublication of matters in the public
interest, which rests on the right of the public to know and the freedom of the
press to tell it.’ (Montana v. San Jose Mercury News, Inc. (1995) 34
Cal.App.4th 790, 793 [40 Cal.Rptr.2d 639], internal citation omitted.)
“The sense of an ever-increasing pressure on personal privacy notwithstanding, it
has long been apparent that the desire for privacy must at many points give way
before our right to know, and the news media’s right to investigate and relate,
facts about the events and individuals of our time.” (Shulman, supra, 18 Cal.4th
at p. 208.)
“The difficulty in defining the boundaries of the right, as applied in the
publication field, is inherent in the necessity of balancing the public interest in
the dissemination of news, information and education against the individuals’
interest in peace of mind and freedom from emotional disturbances. When words
relating to or actual pictures of a person or his name are published, the
circumstances may indicate that public interest is predominant. Factors deserving
consideration may include the medium of publication, the extent of the use, the
public interest served by the publication, and the seriousness of the interference
with the person’s privacy.” (Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273,
278-279 [239 P.2d 630].)
“[T]he common law right does not provide relief for every publication of a
person’s name or likeness. The First Amendment requires that the right to be
protected from unauthorized publicity ‘be balanced against the public interest in
the dissemination of news and information consistent with the democratic
processes under the constitutional guaranties of freedom of speech and of the
press.’ (Gionfriddo,supra, 94 Cal.App.4th at pp. 409-410, internal citations
and footnote omitted.)
“Public interest attaches to people who by their accomplishments or mode of
living create a bona fide attention to their activities.” (Dora v. Frontline Video,
Inc. (1993) 15 Cal.App.4th 536, 542 [18 Cal.Rptr.2d 790], internal citation
“Although surprisingly few courts have considered in any depth the means of
reconciling the right of publicity and the First Amendment, we follow those that
have in concluding that depictions of celebrities amounting to little more than
the appropriation of the celebrity’s economic value are not protected expression
under the First Amendment.” (Comedy III Productions, Inc.,supra, 25 Cal.4th at
p. 400.)
“The First Amendment defense does not apply only to visual expressions,
however. ‘The protections may extend to all forms of expression, including
written and spoken words (fact or fiction), music, films, paintings, and
entertainment, whether or not sold for a profit.’ (Ross v. Roberts (2013) 222
Cal.App.4th 677, 687 [166 Cal.Rptr.3d 359].)
“Producers of films and television programs may enter into agreements with
individuals portrayed in those works for a variety of reasons, including access to
the person’s recollections or ‘story’ the producers would not otherwise have, or a
desire to avoid litigation for a reasonable fee. But the First Amendment simply
does not require such acquisition agreements.” (De Havilland v. FX Networks,
LLC (2018) 21 Cal.App.5th 845, 861 [230 Cal.Rptr.3d 625].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 681 et seq.
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.05 (Matthew
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.35 (Matthew
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.27 (Matthew Bender)

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