California Civil Jury Instructions (CACI) (2017)

1810. Distribution of Private Sexually Explicit Materials—Essential Factual Elements (Civ. Code, § 1708.85)

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1810.Distribution of Private Sexually Explicit
Materials—Essential Factual Elements (Civ. Code, § 1708.85)
[Name of plaintiff] claims that [name of defendant] violated [his/her] right
to privacy. To establish this claim, [name of plaintiff] must prove all of
the following:
1. That [name of defendant] intentionally distributed by [specify
means, e.g., posting online] [a] [photograph(s)/film(s)/videotape(s)/
recording(s)/[specify other reproduction]] of [name of plaintiff];
2. That [name of plaintiff] did not consent to the distribution of the
[specify, e.g., photographs];
3. That [name of defendant] knew that [name of plaintiff] had a
reasonable expectation that the [e.g., photographs] would remain
private;
4. That the [e.g., photographs] [exposed an intimate body part of
[name of plaintiff]/ [or] showed [name of plaintiff] engaging in an
act of [intercourse/oral copulation/sodomy/ [or] [specify other act
of sexual penetration]];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[An “intimate body part” is any part of the genitals[, and, in the case of
a female, also includes any portion of the breast below the top of the
areola,] that is uncovered or visible through less than fully opaque
clothing.]
New December 2015
Directions for Use
This instruction is for use for an invasion-of-privacy cause of action for the
dissemination of sexually explicit materials. (See Civ. Code, § 1708.85(a).) It may
not be necessary to include the last definitional paragraph as the court may rule as
a matter of law that an intimate body part has been distributed. (See Civ. Code,
§ 1708.85(b).)
The plaintiff’s harm (element 5) is general or special damages as defined in
subdivision (d) of Civil Code section 48a. (Civ. Code, § 1708.85(a).) “General
damages” are damages for loss of reputation, shame, mortification and hurt
feelings. (Civ. Code, § 48a(d)(1).) “Special damages” are essentially economic loss.
(Civ. Code, § 48a(d)(2).)
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Sources and Authority
• Right of Action Against Distributor of Private Sexually Explicit Material. Civil
Code section 1708.85
• General and Special Damages. Civil Code section 48a(d)(1), (2)
Secondary Sources
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.07 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.36A
(Matthew Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.25B (Matthew Bender)
1811–1819. Reserved for Future Use
CACI No. 1810 RIGHT OF PRIVACY
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