CACI No. 1807. Affirmative Defense - Invasion of Privacy Justified
Judicial Council of California Civil Jury Instructions (2023 edition)
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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/nonbinary pronoun/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/nonbinary pronoun/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.)
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• 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 (11th ed. 2017) Constitutional Law,
§§ 642-670
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)
California Civil Practice: Torts §§ 20:18-20:20 (Thomson Reuters)
RIGHT OF PRIVACY CACI No. 1807
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