CACI 1802 False Light

New September 2003; Revised November 2017, May 2018, November 2018

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If the plaintiff is asserting more than one privacy right, give an introductory instruction stating that a person’s right to privacy can be violated in more than one way and listing the legal theories under which the plaintiff is suing.

False light claims are subject to the same constitutional protections that apply to defamation claims. (Briscoe v. Reader’s Digest Assn. (1971) 4 Cal.3d 529, 543 [93 Cal.Rptr. 866, 483 P.2d 34], overruled on other grounds in Gates v. Discovery Communications, Inc. (2004) 34 Cal.4th 679, 696, fn. 9 [21 Cal.Rptr.3d 663, 101 P.3d 552] [false light claim should meet the same requirements of a libel claim, including proof of malice when required].) Thus, a knowing violation of or reckless disregard for the plaintiff’s rights is required if the plaintiff is a public figure. (See Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 721–722 [257 Cal.Rptr. 708, 771 P.2d 406].) Give the first option for element 3 if the disclosure involves a public figure. Give the second option for a private citizen, at least with regard to a matter of private concern. (See id. at p. 742 [private person need prove only negligence rather than malice to recover for defamation].)

There is perhaps some question as to which option for element 3 to give for a private person if the matter is one of public concern. For defamation, a private figure plaintiff must prove malice to recover presumed and punitive damages for a matter of public concern, but not to recover for damages to reputation. (Khawar v. Globe Internat. (1998) 19 Cal.4th 254, 273–274 [79 Cal.Rptr.2d 178, 965 P.2d 696].) No case has been found that provides for presumed damages for a false light violation. Therefore, the court will need to decide whether proof of malice is required from a private plaintiff even though the matter may be one of public concern.

If the jury will also be instructed on defamation, an instruction on false light would be superfluous and therefore need not be given. (See Eisenberg v. Alameda Newspapers (1999) 74 Cal.App.4th 1359, 1385, fn. 13 [88 Cal.Rptr.2d 802]; see also Briscoe, supra, 4 Cal.3d at p. 543.) For defamation, utterance of a defamatory statement to a single third person constitutes sufficient publication. (Cunningham v. Simpson (1969) 1 Cal.3d 301, 307 [81 Cal.Rptr. 855, 461 P.2d 39]; but see Warfield v. Peninsula Golf & Country Club (1989) 214 Cal.App.3d 646, 660 [262 Cal.Rptr. 890] [false light case holding that “account” published in defendant’s membership newsletter does not meet threshold allegation of a general public disclosure].)

•“ ‘False light is a species of invasion of privacy, based on publicity that places a plaintiff before the public in a false light that would be highly offensive to a reasonable person, and where the defendant knew or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed.” (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1264 [217 Cal.Rptr.3d 234].)

•“A ‘false light’ claim, like libel, exposes a person to hatred, contempt, ridicule, or obloquy and assumes the audience will recognize it as such.” (De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 865 [230 Cal.Rptr.3d 625].)

•“California common law has generally followed Prosser’s classification of privacy interests as embodied in the Restatement.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 24 [26 Cal.Rptr.2d 834, 865 P.2d 633], internal citation omitted.)

•“In order to be actionable, the false light in which the plaintiff is placed must be highly offensive to a reasonable person. Although it is not necessary that the plaintiff be defamed, publicity placing one in a highly offensive false light will in most cases be defamatory as well.” (Fellows v. National Enquirer (1986) 42 Cal.3d 234, 238–239 [228 Cal.Rptr. 215, 721 P.2d 97], internal citation omitted.)

•“When a false light claim is coupled with a defamation claim, the false light claim is essentially superfluous, and stands or falls on whether it meets the same requirements as the defamation cause of action.” (Eisenberg, supra, 74 Cal.App.4th at p. 1385, fn. 13, internal citations omitted.)

•“[A] ‘false light’ cause of action ‘is in substance equivalent to … [a] libel claim, and should meet the same requirements of the libel claim … including proof of malice and fulfillment of the requirements of [the retraction statute] section 48a [of the Civil Code].” ’ ” (Briscoe, supra, 4 Cal.3d at p. 543, internal citation omitted.)

•“Because in this defamation action [plaintiff] is a private figure plaintiff, he was required to prove only negligence, and not actual malice, to recover damages for actual injury to his reputation. But [plaintiff] was required to prove actual malice to recover punitive or presumed damages … .” (Khawar, supra, 19 Cal.4th at p. 274.)

•“To defeat [defendant] ’s anti-SLAPP motion on her false light claim, [plaintiff], as a public figure, must demonstrate a reasonable probability she can prove [defendant] broadcast statements that are (1) assertions of fact, (2) actually false or create a false impression about her, (3) highly offensive to a reasonable person or defamatory, and (4) made with actual malice.” (De Havilland, supra, 21 Cal.App.5th at p. 865.)

•“[Plaintiff] does not dispute that she is a public figure. … Accordingly, the Constitution requires [plaintiff] to prove by clear and convincing evidence that [defendant] ‘knew the [docudrama] would create a false impression about [her] or acted with reckless disregard for the truth.’ (CACI No. 1802.)” (De Havilland, supra, 21 Cal.App.5th at p. 869.)

•“Publishing a fictitious work about a real person cannot mean the author, by virtue of writing fiction, has acted with actual malice.” (De Havilland, supra, 21 Cal.App.5th at p. 869.)

•“[I]n cases where the claimed highly offensive or defamatory aspect of the portrayal is implied, courts have required plaintiffs to show that the defendant ‘ “intended to convey the defamatory impression.” ’ [Plaintiff] must demonstrate ‘that [defendant] either deliberately cast [her] statements in an equivocal fashion in the hope of insinuating a defamatory import to the reader, or that [it] knew or acted in reckless disregard of whether [its] words would be interpreted by the average reader as defamatory statements of fact.’ Moreover, because actual malice is a ‘deliberately subjective’ test, liability cannot be imposed for an implication that merely ‘ “should have been foreseen.” ’ ” (De Havilland, supra, 21 Cal.App.5th at pp. 869–870, internal citations omitted.)

•“The New York Times decision defined a zone of constitutional protection within which one could publish concerning a public figure without fear of liability. That constitutional protection does not depend on the label given the stated cause of action; it bars not only actions for defamation, but also claims for invasion of privacy.” (Reader’s Digest Assn., Inc. v. Superior Court (1984) 37 Cal.3d 244, 265 [208 Cal.Rptr. 137, 690 P.2d 610], internal citations omitted.)

•“[T]he constitutional protections for speech and press preclude the application of the New York statute to redress false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth.” (Time, Inc. v. Hill (1967) 385 U.S. 374, 387–388 [87 S.Ct. 534, 17 L.Ed.2d 456].)

•“We hold that whenever a claim for false light invasion of privacy is based on language that is defamatory within the meaning of section 45a, pleading and proof of special damages are required.” (Fellows, supra, 42 Cal.3d at p. 251.)