California Civil Jury Instructions (CACI) (2017)

1807. Affirmative Defense—Invasion of Privacy Justified

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1807.Affirmative Defense—Invasion of Privacy Justified
[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
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
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.16 (Matthew
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