Intrusion 1800 [Intrusion into Private Affairs]:
The plaintiff claims that the defendant violated her right to privacy. To establish this claim, the plaintiff must prove all of the following:
1. That the plaintiff had a reasonable expectation of privacy in [specify place or other circumstance];
2. That the defendant intentionally intruded in [specify place or other circumstance];
3. That the defendant’s intrusion would be highly offensive to a reasonable person;
4. That the plaintiff was harmed; and
5. That the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.
In deciding whether the plaintiff had a reasonable expectation of privacy in [specify place or other circumstance], you should consider, among other factors, the following:
(a) The identity of the defendant;
(b) The extent to which other persons had access to [specify place or other circumstance] and could see or hear the plaintiff; and
(c) The means by which the intrusion occurred.
In deciding whether an intrusion is highly offensive to a reasonable person, you should consider, among other factors, the following:
(a) The extent of the intrusion;
(b) The defendant’s motives and goals; and
(c) The setting in which the intrusion occurred.
Instruction 1801 [Public Disclosure of Private Facts]:
The plaintiff claims that the defendant violated her right to privacy. To establish this claim, the plaintiff must prove all of the following:
1. That the defendant publicized private information concerning the plaintiff;
2. That a reasonable person in the plaintiff’s position would consider the publicity highly offensive;
3. That the defendant knew, or acted with reckless disregard of the fact, that a reasonable person in the plaintiff’s position would consider the publicity highly offensive;
4. That the private information was not of legitimate public concern [or did not have a substantial connection to a matter of legitimate public concern];
5. That the plaintiff was harmed; and
6. That the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.
In deciding whether the information was a matter of legitimate public concern, you should consider, among other factors, the following:
(a) The social value of the information;
(b) The extent of the intrusion into the plaintiff’s privacy; [and]
(c) Whether the plaintiff consented to the publicity explicitly or by voluntarily seeking public attention or a public office; [and]
(d) [Insert other applicable factor].
[In deciding whether the defendant publicized the information, you should determine whether it was made public either by communicating it to the public at large or to so many people that the information was substantially certain to become public knowledge.]
Instruction 1802 [False Light]:
The plaintiff claims that the defendant violated her right to privacy. To establish this claim, the plaintiff must prove all of the following:
1. That the defendant publicly disclosed information or material that showed the plaintiff in a false light;
2. That the false light created by the disclosure would be highly offensive to a reasonable person in the plaintiff’s position;
3. [That there is clear and convincing evidence that the defendant knew the disclosure would create a false impression about the plaintiff or acted with reckless disregard for the truth;]
[or]
[That the defendant was negligent in determining the truth of the information or whether a false impression would be created by its disclosure;]
4. [That the plaintiff was harmed; and]
[or]
[That the plaintiff sustained harm to her property, business, profession, or occupation [including money spent as a result of the statement[s]]; and]
5. That the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.
Instruction 1803 [Appropriation of Name or Likeness—Essential Factual Elements]:
The plaintiff claims that the defendant violated her right to privacy. To establish this claim, the plaintiff must prove all of the following:
1. That the defendant used the plaintiff’s name, likeness, or identity;
2. That the plaintiff did not consent to this use;
3. That the plaintiff gained a commercial benefit or some other advantage by using the plaintiff’s name, likeness, or identity;
4. That the plaintiff was harmed; and
5. That the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.
Instruction 1804A [Use of Name or Likeness (Civ. Code, § 3344)]:
The plaintiff claims that the defendant violated her right to privacy. To establish this claim, the plaintiff must prove all of the following:
1. That the defendant knowingly used the plaintiff’s name/voice/signature/photograph/likeness on merchandise [or] to advertise or sell;
2. That the use did not occur in connection with a news, public affairs, or sports broadcast or account, or with a political campaign;
3. That the defendant did not have the plaintiff’s consent;
4. That the defendant’s use of the plaintiff’s name/voice/signature/photograph/likeness was directly connected to the defendant’s commercial purpose;
5. That the plaintiff was harmed; and
6. That the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.
Instruction 1804B [Use of Name or Likeness—Use in Connection With News, Public Affairs, or Sports Broadcast or Account, or Political Campaign (Civ. Code, § 3344(d))]:
The plaintiff claims that the defendant violated her right to privacy. To establish this claim, the plaintiff must prove all of the following:
1. That the defendant knowingly used the plaintiff’s name/voice/signature/photograph/likeness on merchandise or to advertise or sell;
2. That the use occurred in connection with a news/public affairs/sports broadcast or account/political campaign;
3. That the use contained false information;
4. [Use for public figure: That the defendant knew the [broadcast or account/campaign material] was false or that he acted with reckless disregard of its falsity;]
[or]
[Use for private individual: That the defendant was negligent in determining the truth of the broadcast or account/campaign material;]
5. That the defendant’s use of the plaintiff’s name/voice/signature/photograph/likeness was directly connected to the defendant’s commercial purpose;
6. That the plaintiff was harmed; and
7. That the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.
Instruction 1805 [Affirmative Defense to Use or Appropriation of Name or Likeness—First Amendment (Comedy III)]:
The defendant claims that he has not violated the plaintiff’s right of privacy because the work is protected by the First Amendment’s guarantee of freedom of speech and expression. To succeed, the defendant must prove either of the following:
1. That the work adds something new to the plaintiff’s likeness, giving it a new expression, meaning, or message; or
2. That the value of the work does not result primarily from the plaintiff’s fame.
Instruction 1806 [Affirmative Defense to Invasion of Privacy—First Amendment Balancing Test—Public Interest]:
The defendant claims that he has not violated the plaintiff’s right of privacy because the public interest served by the defendant’s privacy violation [e.g., use of the plaintiff’s name, likeness, or identity] outweighs the plaintiff’s privacy interests. In deciding whether the public interest outweighs the 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 the plaintiff’s privacy; and
e. [specify other factors].
Instruction 1807 [Affirmative Defense—Invasion of Privacy Justified]:
The defendant claims that even if the plaintiff has proven all of the above, his conduct was justified. The defendant must prove that the circumstances justified the invasion of privacy because the invasion of privacy substantially furthered relevant legitimate or compelling competing interest.
If the defendant proves that his conduct was justified, then you must find for the defendant unless the plaintiff proves that there was a practical, effective, and less invasive method of achieving the defendant’s purpose.
Instruction 1809 [Recording of Confidential Information (Pen. Code, §§ 632, 637.2)]:
The plaintiff claims that the defendant violated her right to privacy. To establish this claim, the plaintiff must prove all of the following:
1. That the defendant intentionally eavesdropped on or recorded the plaintiff’s conversation by using an electronic device;
2. That the plaintiff had a reasonable expectation that the conversation was not being overheard or recorded; [and]
3. That the defendant did not have the consent of all parties to the conversation to eavesdrop on or record it;
4. [That the plaintiff was harmed; and]
5. [That the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.]
Instruction 1810 [Distribution of Private Sexually Explicit Materials—Essential Factual Elements (Civ. Code, § 1708.85)]:
The plaintiff claims that the defendant violated her right to privacy by distributing private sexually explicit materials. To establish this claim, the plaintiff must prove all of the following:
1. That the defendant intentionally distributed [a] photograph(s)/film(s)/videotape(s)/recording(s)/Etc. of the plaintiff;
2. That the plaintiff did not consent to the distribution of the items;
3. That the defendant knew, or reasonably should have known, that the plaintiff had a reasonable expectation that the items would remain private;
4. That the items exposed an intimate body part of the plaintiff or showed the plaintff engaging in an act of intercourse/oral copulation/sodomy/Etc.;
5. That the plaintiff was harmed; and
6. That the defendant’s conduct was a substantial factor in causing the 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.
[Judicial Council Of California Civil Jury Instructions]
