California Civil Jury Instructions (CACI) (2017)

1806. Reserved for Future Use

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1806.Affirmative Defense to Invasion of Privacy—First
Amendment Balancing Test—Public Interest
[Name of defendant] claims that [he/she] 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 v. Group W
Productions, Inc. (1998) 18 Cal.4th 200, 208 [74 Cal. Rptr. 2d 843, 955 P.2d
• “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
• “In sum, when an artist is faced with a right of publicity challenge to his or her
work, he or she may raise as affirmative defense that the work is protected by
the First Amendment inasmuch as it contains significant transformative elements
or that the value of the work does not derive primarily from the celebrity’s
fame.” (Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th
387, 407 [106 Cal.Rptr.2d 126, 21 P.3d 797].)
• “We have explained that ‘[o]nly if [a defendant] is entitled to the
[transformative] defense as a matter of law can it prevail on its motion to
strike,’ because the California Supreme Court ‘envisioned the application of the
defense as a question of fact.’ As a result, [defendant] ‘is only entitled to the
defense as a matter of law if no trier of fact could reasonably conclude that the
[game] [i]s not transformative.’ ” (Keller v. Elec. Arts Inc. (In re NCAA Student-
Athlete Name & Likeness Licensing Litig.) (9th Cir. 2013) 724 F.3d 1268, 1274,
original italics.)
• “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].)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2010) Torts, § 681 et seq.
4Levy 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)