California Civil Jury Instructions (CACI)
If you decide that [name of plaintiff] has proved [his/her/its] claim against [name of defendant], you also must decide how much money will reasonably compensate [name of plaintiff] for the harm. This compensation is called “damages.”
The amount of damages must include an award for all harm that was caused by [name of defendant], even if the particular harm could not have been anticipated.
[Name of plaintiff] must prove the amount of [his/her/its] damages. However, [name of plaintiff] does not have to prove the exact amount of damages that will provide reasonable compensation for the harm. You must not speculate or guess in awarding damages.
The following are the specific items of damages claimed by [name of plaintiff]:
1. [Mental suffering/anxiety/humiliation/emotional distress;]
2. [Harm to reputation and loss of standing in the community;]
3. [The commercial value of [name of plaintiff]’s name or likeness;]
4. [Insert other applicable item of damage.]
No fixed standard exists for deciding the amount of damages for [insert item of mental or emotional distress]. You must use your judgment to decide a reasonable amount based on the evidence and your common sense.
[To recover for future [insert item of mental or emotional distress], [name of plaintiff] must prove that [he/she] is reasonably certain to suffer that harm.]
Directions for Use
This instruction is not intended for cases involving invasion of privacy by false light. Damages for false light are similar to the damages available in defamation (see CACI Nos. 1700 to 1705).
Item 2 will probably not be relevant in all cases. It will have particular application to the aspect of this tort involving the publication of private facts. (See Diaz v. Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 137 [188 Cal.Rptr. 762].)
Item 3 is intended only for cases involving violation of privacy by appropriation.
Sources and Authority
- Restatement Second of Torts, section 652H provides:
One who has established a cause of action for invasion of his privacy is entitled to recover damages for
(a) the harm to his interest in privacy resulting from the invasion;
(b) his mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; and
(c) special damage of which the invasion is a legal cause.
Note that this Restatement section has not been cited by any published California cases.
- “Damages recoverable in California for invasion of a privacy right were discussed in detail in Fairfield v. American Photocopy Equipment Co. The Court of Appeal declared that because the interest involved privacy, the damages flowing from its invasion logically would include an award for mental suffering and anguish. Fairfield was an appropriation case, but the principles it laid down concerning damage awards in privacy cases relied on a body of California law which had already recognized violation of the right of privacy as a tort.” (Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1484 [232 Cal.Rptr. 668], internal citation omitted.)
- “The elements of emotional distress damages, i.e., anxiety, embarrassment, humiliation, shame, depression, feelings of powerlessness, anguish, etc., would thus be subjects of legitimate inquiry by a jury in the action before us, taking into account all of the consequences and events which flowed from the actionable wrong.” (Miller, supra, 187 Cal.App.3d at p. 1485.)
- “The actual injury involved herein is not limited to out-of-pocket loss. It generally includes ‘impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.’ ” (Diaz, supra, 139 Cal.App.3d at p. 137, internal citation omitted.)
- In Time, Inc. v. Hill (1967) 385 U.S. 374, 384, fn. 9 [87 S.Ct. 534, 17 L.Ed.2d 456], the court stated: “In the ‘right of privacy’ cases the primary damage is the mental distress from having been exposed to public view, although injury to reputation may be an element bearing upon such damage.”
- “There is a distinction between causes of action for invasion of privacy and defamation with regard to the respective interests protected and compensated by each. ‘The gist of a cause of action in a privacy case is not injury to the character or reputation but a direct wrong of a personal character resulting in injury to the feelings without regard to any effect which the publication may have on the property, business, pecuniary interest, or the standing of the individual in the community. The right of privacy concerns one’s own peace of mind, while the right of freedom from defamation concerns primarily one’s reputation. The injury is mental and subjective.’ ” (Selleck v. Globe Int’l, Inc. (1985) 166 Cal.App.3d 1123, 1135 [212 Cal.Rptr. 838], internal citations omitted.)
- “California recognizes the right to profit from the commercial value of one’s identity as an aspect of the right of publicity.” (Gionfriddo v. Major League Baseball (2001) 94 Cal.App.4th 400, 409 [114 Cal.Rptr.2d 307], internal citations omitted.)
- “What may have originated as a concern for the right to be left alone has become a tool to control the commercial use and, thus, protect the economic value of one’s name, voice, signature, photograph, or likeness.” (KNB Enterprises v. Matthews (2000) 78 Cal.App.4th 362, 366 [92 Cal.Rptr.2d 713].)
- “The first type of appropriation is the right of publicity . . . which is ‘in essence that the reaction of the public to name and likeness, which may be fortuitous or which may be managed or planned, endows the name and likeness of the person involved with commercially exploitable opportunities.’ The other is the appropriation of the name and likeness that brings injury to the feelings, that concerns one’s own peace of mind, and that is mental and subjective.” (Dora v. Frontline Video, Inc. (1993) 15 Cal.App.4th 536, 541—542 [18 Cal.Rptr.2d 790], internal citations omitted.)
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.13 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.46 (Matthew Bender)