CACI No. 1810. Distribution of Private Sexually Explicit Materials - Essential Factual Elements (Civ. Code, § 1708.85)

Judicial Council of California Civil Jury Instructions (2022 edition)

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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/nonbinary pronoun] 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
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
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).)
Copyright Judicial Council of California
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
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. Reserved for Future Use
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