CACI 1721 Affirmative Defense—Consent

California Civil Jury Instructions CACI

1721 Affirmative Defense—Consent

[Name of defendant] is not responsible for [name of plaintiff]’s harm, if any, if [he/she/nonbinary pronoun] proves that [name of plaintiff] consented, by words or conduct, to [name of defendant]’s communication of the statement(s) to others. In deciding whether [name of plaintiff] consented to the communication, you should consider the circumstances surrounding the words or conduct.

Sources and Authority

Restatement Second of Torts, section 583, provides, in part: “[T]he consent of another to the publication of defamatory matter concerning him is a complete defense to his action for defamation.”

“One of the oldest and most widely recognized defenses to the publication of defamatory matter is the doctrine of consent, which has been classified as a form of absolute privilege.” (Royer v. Steinberg (1979) 90 Cal.App.3d 490, 498 [153 Cal.Rptr. 499].)

“One of the primary purposes of the doctrine of consent in defamation law is to prevent a party from inviting or inducing indiscretion and thereby laying the foundation of a lawsuit for his own pecuniary gain.” (Royer, supra, 90 Cal.App.3d at p. 499.)

This rule applies when the plaintiff asks the defendant to repeat the statement to others and when the plaintiff himself repeats the statements to others. (Royer, supra, 90 Cal.App.3d at p. 498 [but see CACI No. 1708, Coerced Self-Publication].)

Secondary Sources

5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 694
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.68 (Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation), § 142.54 (Matthew Bender)
California Civil Practice: Torts § 21:28 (Thomson Reuters)