California Civil Jury Instructions (CACI)

1807. Affirmative Defense to Constitutional Right

[Name of defendant] claims that even if [name of plaintiff] has proven all of the above, [his/her/its] conduct was justified. [Name of defendant] must prove that the circumstances justified the invasion of privacy because the invasion of privacy substantially furthered [insert relevant legitimate or compelling competing interest].

If [name of defendant] proves that [his/her/its] conduct was justified, then you must find for [name of defendant] unless [name of plaintiff] proves that there was a practical, effective, and less invasive method of achieving [name of defendant]’s purpose.

New September 2003; Revised October 2008, June 2010

Sources and Authority

  • “A defendant may prevail in a state constitutional privacy case by negating any of the three elements just discussed or by pleading and proving, as an affirmative defense, that the invasion of privacy is justified because it substantively furthers one or more countervailing interests. The plaintiff, in turn, may rebut a defendant’s assertion of countervailing interests by showing there are feasible and effective alternatives to defendant’s conduct which have a lesser impact on privacy interests. Of course, a defendant may also plead and prove other available defenses, e.g., consent, unclean hands, etc., that may be appropriate in view of the nature of the claim and the relief requested.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40 [26 Cal.Rptr.2d 834, 865 P.2d 633].)
  • “The existence of a sufficient countervailing interest or an alternative course of conduct present threshold questions of law for the court. The relative strength of countervailing interests and the feasibility of alternatives present mixed questions of law and fact. Again, in cases where material facts are undisputed, adjudication as a matter of law may be appropriate.” (Hill, supra, 7 Cal.4th at p. 40.)
  • Hill and its progeny further provide that no constitutional violation occurs, i.e., a ‘defense’ exists, if the intrusion on privacy is justified by one or more competing interests. For purposes of this balancing function—and except in the rare case in which a ‘fundamental’ right of personal autonomy is involved—the defendant need not present a ‘ “compelling” ’ countervailing interest; only ‘general balancing tests are employed.’ To the extent the plaintiff raises the issue in response to a claim or defense of competing interests, the defendant may show that less intrusive alternative means were not reasonably available. A relevant inquiry in this regard is whether the intrusion was limited, such that no confidential information was gathered or disclosed.” (Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 288 [97 Cal.Rptr.3d 274, 211 P.3d 1063], internal citations omitted.)
  • Note that whether the countervailing interest needs to be “compelling” or “legitimate” depends on the status of the defendant. “In general, where the privacy violation is alleged against a private entity, the defendant is not required to establish a ‘compelling interest’ but, rather, one that is ‘legitimate’ or ‘important.’ ” (Pettus v. Cole (1996) 49 Cal.App.4th 402, 440 [57 Cal.Rptr.2d 46].)

Secondary Sources

7 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, §§ 575—603

4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.06 (Matthew Bender)

37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.16 (Matthew Bender)

18 California Points and Authorities, Ch. 183, Privacy: State Constitutional Rights, § 183.20 (Matthew Bender)

1 California Civil Practice: Torts (Thomson West) §§ 20:18—20:20