CACI 1810 Distribution of Private Sexually Explicit Materials—Essential Factual Elements (Civ. Code, § 1708.85)

California Civil Jury Instructions CACI

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 private;

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 clothing.]

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).)

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 Bender)
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)