CACI 1806 Affirmative Defense to Invasion of Privacy—First Amendment Balancing Test—Public Interest

California Civil Jury Instructions CACI

1806 Affirmative Defense to Invasion of Privacy—First Amendment Balancing Test—Public Interest

[Name of defendant] claims that [he/she/nonbinary pronoun] has not violated [name of plaintiff]’s right of privacy because the public interest served by [name of defendant]’s [specify privacy violation, e.g., use of [name of plaintiff]’s name, likeness, or identity] outweighs [name of plaintiff]’s privacy interests. In deciding whether the public interest outweighs [name of plaintiff]’s privacy interest, you should consider all of the following:

a.Where the information was used;

b.The extent of the use;

c.The public interest served by the use;

d.The seriousness of the interference with [name of plaintiff]’s privacy; and

e.[specify other factors].

Directions for Use

This instruction sets forth a balancing test for a claim for invasion of privacy. A defendant’s First Amendment right to freedom of expression and freedom of the press can, in some cases, outweigh the plaintiff’s right of privacy (See Gionfriddo v. Major League Baseball (2001) 94 Cal.App.4th 400, 409–410 [114 Cal.Rptr.2d 307]; see also Gill v. Hearst Publishing Co. Inc. (1953) 40 Cal.2d 224, 228–231 [253 P.2d 441].) This balancing test is an affirmative defense. (See Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 407 [106 Cal.Rptr.2d 126, 21 P.3d 797]; CACI No. 1805, Affirmative Defense to Use or Appropriation of Name or Likeness—First Amendment (Comedy III).)

A First-Amendment defense based on newsworthiness has been allowed for the defendant’s use of the plaintiff’s name or likeness. (See Gionfriddosupra, 94 Cal.App.4th at pp. 409–411; see CACI No. 1804A.) It has also been allowed for privacy claims based on intrusion into private affairs (see CACI No. 1800) and public disclosure of private facts (See CACI No. 1802; Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 214–242 [74 Cal.Rptr.2d 843, 955 P.2d 469].) It has also been allowed for a claim that the plaintiff had been presented in a false light (See CACI No. 1802; Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273, 278–279 [239 P.2d 630] [magazine’s use of plaintiffs’ picture in connection with article on divorce suggested that they were not happily married].)

Sources and Authority

“[N]o cause of action will lie for the ‘[p]ublication of matters in the public interest, which rests on the right of the public to know and the freedom of the press to tell it.’ ” (Montana v. San Jose Mercury News, Inc. (1995) 34 Cal.App.4th 790, 793 [40 Cal.Rptr.2d 639], internal citation omitted.)

“The sense of an ever-increasing pressure on personal privacy notwithstanding, it has long been apparent that the desire for privacy must at many points give way before our right to know, and the news media’s right to investigate and relate, facts about the events and individuals of our time.” (Shulman, supra, 18 Cal.4th at p. 208.)

“The difficulty in defining the boundaries of the right, as applied in the publication field, is inherent in the necessity of balancing the public interest in the dissemination of news, information and education against the individuals’ interest in peace of mind and freedom from emotional disturbances. When words relating to or actual pictures of a person or his name are published, the circumstances may indicate that public interest is predominant. Factors deserving consideration may include the medium of publication, the extent of the use, the public interest served by the publication, and the seriousness of the interference with the person’s privacy.” (Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273, 278–279 [239 P.2d 630].)

“[T]he common law right does not provide relief for every publication of a person’s name or likeness. The First Amendment requires that the right to be protected from unauthorized publicity ‘be balanced against the public interest in the dissemination of news and information consistent with the democratic processes under the constitutional guaranties of freedom of speech and of the press.’ ” (Gionfriddosupra, 94 Cal.App.4th at pp. 409–410, internal citations and footnote omitted.)

“Public interest attaches to people who by their accomplishments or mode of living create a bona fide attention to their activities.” (Dora v. Frontline Video, Inc. (1993) 15 Cal.App.4th 536, 542 [18 Cal.Rptr.2d 790], internal citation omitted.)

“Although surprisingly few courts have considered in any depth the means of reconciling the right of publicity and the First Amendment, we follow those that have in concluding that depictions of celebrities amounting to little more than the appropriation of the celebrity’s economic value are not protected expression under the First Amendment.” (Comedy III Productions, Inc.supra, 25 Cal.4th at p. 400.)

“The First Amendment defense does not apply only to visual expressions, however. ‘The protections may extend to all forms of expression, including written and spoken words (fact or fiction), music, films, paintings, and entertainment, whether or not sold for a profit.’ ” (Ross v. Roberts (2013) 222 Cal.App.4th 677, 687 [166 Cal.Rptr.3d 359].)

“Producers of films and television programs may enter into agreements with individuals portrayed in those works for a variety of reasons, including access to the person’s recollections or ‘story’ the producers would not otherwise have, or a desire to avoid litigation for a reasonable fee. But the First Amendment simply does not require such acquisition agreements.” (De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 861 [230 Cal.Rptr.3d 625].)

Secondary Sources

5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 681 et seq.
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.05 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.35 (Matthew Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy, § 184.27 (Matthew Bender)