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A published opinion is not defamatory unless it conveys to the recipient a provably false assertion of a fact or facts. You must determine, from the totality of the circumstances whether such an interpretation was in fact conveyed. If such an interpretation was not conveyed, the expression or statement, though published, does not constitute defamation. | TOP |
[The plaintiff __________ [also] seeks to recover damages based upon a claim of defamation.]
Defamation is an invasion of the interest in reputation of [a person] or [a group of persons] [legal entities such as a [corporation] [partnership] or [association]] resulting from libel or slander. In this case, plaintiff seeks to recover damages for defamation resulting from [libel] [and] [slander].
[Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or disgrace, or which causes such party to be shunned or avoided, or which has a tendency to injure such party in such party's occupation.]
[Slander is a false and unprivileged publication made orally either in person or by radio or television or by any other means which [charges any person with crime, or with having been indicted, convicted, or punished for crime] [imputes to a party the present existence of an infectious, contagious, or loathsome disease] [tends directly to injure a party in respect to such person's office, profession, trade or business, either by imputing to such party general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to the office, profession, trade, or business that has a natural tendency to lessen its profits] [imputes to such person impotence or a want of chastity] [by natural consequence, causes actual damage].] | TOP |
The defamatory nature of a false and unprivileged publication must be determined by the natural and probable effect of the publication on the mind of the average [reader] [listener]. Consequently, if the average [reader] [listener] would regard it as a defamatory publication it may be [libelous] [slanderous] on its face even though it is also susceptible of innocent meaning. | TOP |
Each of several publications by the defendant to a third person is a separate publication for which separate damages can be awarded [.] [, except that] [[A] a single communication heard at the same time by two or more third persons is a single publication] [;] [.] [[Any] any one [issue of a [book] [newspaper] [, or] [radio] [or] [television] broadcast] [, or] [exhibition of a motion picture [or similar aggregate communication]] is a single publication]. | TOP |
A "publication" of defamatory matter is its communication to a person other than the plaintiff, who understands its defamatory meaning and its application to the plaintiff. To be a publication, the communication also must be made intentionally or negligently.
[A publication is intentional if made for the purpose of communicating the defamatory matter to a person other than plaintiff, or with knowledge that the defamatory matter is substantially certain to be so communicated.]
[A publication is negligent if a reasonable person would recognize that an act creates an unreasonable risk that the defamatory matter will be communicated to a person other than plaintiff.]
[It is also essential to publication that the recipient of the defamatory communication understood the statement was intended to refer to the plaintiff. If the defendant intended to refer to the plaintiff, and the recipient so understood the statement, it is immaterial what words the defendant used to identify the plaintiff. If the recipient mistakenly, but reasonably, believed that the defamatory statement was intended to refer to the plaintiff, it is immaterial that the defendant did not intend to do so.] | TOP |
A [libelous] [slanderous] statement is not published within the meaning of the law if the author of the statement [gives] [makes] the statement only to the plaintiff. | TOP |
The essential elements of a claim for defamation by [libel] [slander] are:
1. The defendant [[by [writing] [,] [printing] [,] [__________]] [[orally [either] in person] [or] [__________]] made a defamatory statement about the plaintiff;
2. The defendant published the defamatory statement;
3. The defendant:
[a.] [knew the statement was false and defamed plaintiff;] [or]
[b.] [published the statement in reckless disregard of whether the matter was false and defamed plaintiff;] [or]
[c.] [acted negligently in failing to learn whether the matter published was false and defamed plaintiff;
[4. [Either] the publication caused plaintiff to suffer special damages [, or the statement was defamatory on its face].]
[Reckless disregard for whether the matter was false and defamed plaintiff means that the defendant must have had serious doubts about the truthfulness of the statement at the time of the publication.]
[A defendant acts negligently if [he] [she] does not act reasonably in checking on the truth or falsity or defamatory character of the communication before publishing it.
In determining whether the defendant's conduct was reasonable you should consider:
1. The time element;
2. The nature of the interest that the defendant was seeking to promote by publishing the communication; and
3. The extent of the injury to the plaintiff's reputation or sensibility that would be produced if the communication proves to be false.]
The essential elements of a claim for defamation by [libel] [slander] are:
1. The defendant [[by [writing] [,] [printing] [,] [_______________]] [[orally [either] in person] [or] [_______________]] made a defamatory statement about the plaintiff;
2. The defendant published the defamatory statement;
3. The defendant, at the time of the publication,
a. knew that the statement was false and defamed plaintiff, or
b. published the statement in reckless disregard of whether the matter was false and defamed the plaintiff;
[4. [Either] the publication caused plaintiff to suffer special damages [, or the statement was defamatory on its face].]
Reckless disregard for whether the matter was false and defamed plaintiff means that the defendant must have had serious doubts about the truthfulness of the statement at the time of publication. | TOP |
A conditional privilege is a defense to an action for defamation, unless the defendant abused the privilege when publishing the statement.
Defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish a conditional privilege.
Defendant was conditionally privileged to make the statement if you find the following to be true:
________________________________________________________
________________________________________________________
________________________________________________________
________________________________________________________
[Plaintiff has the burden of proving by a preponderance of the evidence all of the facts necessary to establish that the privilege was abused by defendant.
A privilege is abused when a defendant publishes a defamatory statement about plaintiff,
[without a good faith belief in the truth of the statement;] [or]
[without reasonable grounds for believing the statement true;] [or]
[motivated by hatred or ill will towards plaintiff;] [or]
[__________].] | TOP |
The statement [__________] published by the defendant was conditionally privileged. The existence of a conditional privilege is a defense to an action for defamation, unless the defendant abused the privilege when publishing the statement.
A privilege is abused when a defendant publishes a defamatory statement about plaintiff,
[without a good faith belief in the truth of the statement;] [or]
[without reasonable grounds for believing the statement true;] [or]
[motivated by hatred or ill will towards plaintiff;] [or]
[__________].
[Plaintiff has the burden of proving by a preponderance of the evidence all of the facts necessary to establish that the privilege was abused by defendant.] | TOP |
An essential element of defamation by [libel] [slander] is that the statement published was false. Consequently, if the statement was, in fact true, there can be no defamation, regardless of defendant's motivation.
The [plaintiff] [defendant] has the burden of proving by a preponderance of the evidence all of the facts necessary to establish that the statement is [false] [true]. | TOP |
In an action for damages for [libel by a newspaper,] [slander by a [radio] [television] broadcaster,] [invasion of privacy by false light against a [newspaper,] [radio] [or] [television] broadcaster,] the plaintiff may recover no more than special damages unless the plaintiff proves that a written notice specifying the statement[s] claimed to be [defamatory] [an invasion of privacy] and demanding the same be corrected, was served on such [newspaper, at the place of publication] [broadcaster, at the place of broadcast] within 20 days after the plaintiff acquired knowledge of such [publication] [broadcast] and [that such correction was not [published] [broadcast]] in substantially as conspicuous a manner [in such newspaper] [on such broadcasting station] as [was] [were] the statement[s] claimed to be [defamatory] [an invasion of privacy by false light], in a regular issue thereof [published] [broadcast] within 3 weeks after such demand for correction was served on the [newspaper] [broadcaster.].
[The written demand for correction must be:
(1) served upon the newspaper publisher,
(2) served upon a person designated by the newspaper publisher to receive such notices, or
(3) served upon someone employed at the newspaper other than the publisher or the publisher's designee and the publisher acquires actual knowledge of the request for correction within 3 weeks after such demand for correction was served on the newspaper.]
If after the service of said written demand for correction [no such correction was [published] [broadcast]], [or] [such correction was [published] [broadcast] but not in substantially as conspicuous manner as [was] [were] the statement[s] claimed to be [defamatory] [an invasion of privacy], plaintiff is not limited to the recovery of special damages and may recover damages in accordance with the court's instructions. | TOP |
[The statement __________ (identify statement) is defamatory on its face [if untrue].
[The statement __________ (identify statement) is not defamatory on its face. Whether in light of all the circumstances it constitutes a defamatory statement is for you to determine.]
[You must determine whether the statement __________ (identify statement) is or is not defamatory on its face. If you find that it is not defamatory on its face, then you must determine whether in light of all the circumstances it constitutes a defamatory statement.]
When a statement is defamatory on its face, plaintiff can recover damages including [general] [and] [presumed] damages without proof of special damages, so long as plaintiff establishes by the required standard of proof that [he] [she] is entitled to recover.
[A written statement is defamatory on its face if the natural and probable effect on the average reader is to defame the plaintiff without the necessity of considering the surrounding circumstances.]
[An oral statement is defamatory on its face if it [charged plaintiff with a crime] [imputes in plaintiff the present existence of an infectious, contagious, or loathsome disease] [tends directly to injure plaintiff in respect to [his] [her] office, profession, trade or business, either by imputing to [him] [her] general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to [his] [her] office, profession, trade or business that has a natural tendency to lessen its profits] [imputes to [him] [her] impotence or want of chastity.]
[If a statement is not defamatory on its face, but nonetheless under all circumstances is defamatory, plaintiff must establish that [he] [she] has sustained special damages in order to also recover general damages]. | TOP |
If you find [or have been instructed] that:
1. Defendant made [a] [an unprivileged] publication of defamatory matter about the plaintiff; and
2. [The matter published was defamatory on its face,] [or if not,] [Plaintiff suffered special damages as a result], then you also may award plaintiff presumed general damages[,] [provided that you find by clear and convincing evidence that the defendant either knew the statement was false and defamed plaintiff or published the statement in reckless disregard of whether the matter was false and defamed plaintiff].
Presumed damages are those damages that necessarily result from the publication of defamatory matter and are presumed to exist. They include, but are not limited to, reasonable compensation for loss of personal [or professional] reputation, shame, mortification, and hurt feelings. No definite standard [or method of calculation] is prescribed by law by which to fix reasonable compensation for presumed damages, and no evidence of actual harm is required. Nor is the opinion of any witness required as to the amount of such reasonable compensation. In making an award for presumed damages you shall exercise your authority with calm and reasonable judgment and the damages you fix shall be just and reasonable.
[You may in the exercise of your discretion award nominal damages only, namely an insignificant sum such as one dollar ($1.00).] | TOP |
If you find that the defendant defamed plaintiff by a [libel] [slander] and that such [libel] [slander] was a cause of general damages to plaintiff, in determining the amount of such general damage, you should consider but are not limited to the following:
(1) The extent of the publicity given by the defendant to the [libel] [slander];
(2) Plaintiff's good name, reputation, and the loss thereof;
(3) Plaintiff's shame, mortification, injured feelings and mental suffering;
[(4) Plaintiff's prominence in the community where [he] [she] lives;]
[(5) Plaintiff's professional or business standing in the community where [he] [she] does business.]
In determining the amount of plaintiff's damage, the law does not establish any absolute fixed or mathematical rule or standard by which to compute such damage; therefore, you may exercise your discretion but must do so without passion or prejudice for or against either party. [Furthermore, such damages shall not be enhanced by a repetition of such [libel] [slander] by third persons who are not parties to this action unless such repetition was authorized or intended or could have been reasonably foreseen.] | TOP |
If you conclude that plaintiff is entitled to recover special damages from defendant, you may award damages to compensate for losses, if any, suffered to date and which plaintiff is reasonably certain to suffer in the future in respect to property, business, trade, profession, or occupation [including the amount of money which plaintiff has expended as a result of the alleged libel] [including the amount of actual damage which is a natural consequence of the publication of the slander] which were caused by the [libel] [slander] which was published by the defendant. | TOP |
If you find that plaintiff is entitled to recover compensatory damages against defendant as a result of the [publication] [broadcast] of defamatory matter, you must decide in addition whether by clear and convincing evidence, the defendant made the [publication] [broadcast] with actual malice.
Actual malice is that state of mind which arises from hatred or ill will toward the plaintiff; provided, however, that such a state of mind occasioned by a good faith belief on the part of the defendant in the truth of the libelous publication or broadcast at the time it is [published] [broadcast] shall not constitute actual malice. | TOP |
You must now determine whether you should award punitive damages against defendant[s] [__________ only], for the sake of example and by way of punishment. Whether punitive damages should be imposed, and if so, the amount thereof, is left to your sound discretion, exercised without passion or prejudice.
If you determine that punitive damages should be assessed against a defendant, in arriving at the amount of such an award, you must consider:
1. The reprehensibility of the conduct of the defendant.
2. The amount of punitive damages which will have a deterrent effect on the defendant in the light of defendant's financial condition.
3. That the punitive damages must bear a reasonable relation to the amount of compensatory damages. | TOP |
If you find that plaintiff is entitled to recover compensatory damages against defendant as a result of the [publication] [broadcast] of defamatory matter, and you further find by clear and convincing evidence that the defendant made the [publication] [broadcast] with actual malice, you may, in your discretion, award plaintiff punitive damages for the sake of example and by way of punishment.
Actual malice is that state of mind which arises from hatred or ill will toward the plaintiff; provided, however, that such a state of mind occasioned by a good faith belief on the part of the defendant in the truth of the libelous publication or broadcast at the time it is [published] [broadcast] shall not constitute actual malice.
The law provides no fixed standards as to the amount of such punitive damages, but leaves the amount to the jury's sound discretion, exercised without passion or prejudice.
In arriving at any award of punitive damages, you are to consider the following:
1. The reprehensibility of the conduct of the defendant.
2. The amount of punitive damages which will have a deterrent effect on the defendant in the light of defendant's financial condition.
3. That the punitive damages must bear a reasonable relation to the amount of compensatory damages.
If you find that plaintiff is entitled to an award of punitive damages against defendant, you shall state the amount of punitive damages separately in your verdict. ) | TOP |
The plaintiff __________ [also] seeks to recover damages based upon a claim of invasion of privacy by intrusion into private affairs.
The essential elements of such a claim are:
1. The defendant intentionally intruded, physically or otherwise, upon the solitude or seclusion, private affairs or concerns of the plaintiff;
2. The intrusion was substantial, and of a kind that would be highly offensive to an ordinarily reasonable person; and
3. The intrusion caused plaintiff to sustain injury, damage, loss or harm.
In determining whether an intrusion is highly offensive, you should consider all of the evidence, including the degree of intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder's motives and objectives, the setting in which the intrusion occurs, and the plaintiff's expectations of privacy in that setting. | TOP |
The plaintiff __________ [also] seeks to recover damages based upon a claim of invasion of privacy by public disclosure of private facts.
The essential elements of such a claim are:
1. The defendant made a public disclosure of a fact about the plaintiff;
2. Before this disclosure the fact was private, that is, not known to the public;
3. The fact made known to the public would be highly offensive to a reasonable person of ordinary sensibilities;
4. The defendant disclosed the fact with knowledge that it was highly offensive or with reckless disregard of whether it was highly offensive or not;
5. The fact made known was not newsworthy; and
6. The public disclosure of this fact caused plaintiff to sustain injury, damage, loss or harm.
In determining whether the fact made known was newsworthy, you should consider, (1) the social value of the fact published, (2) the depth of the [article's] intrusion into plaintiff's private affairs, (3) the extent to which the plaintiff voluntarily pushed [himself] [herself] into a position of public notoriety, [(4) the nature of the state's interest in preventing the disclosure,] (5) whether the fact is a matter of public record [and (6) if the fact published concerned events that occurred in the past, whether there is any continued public interest in the fact published] | TOP |
The plaintiff __________ [also] seeks to recover damages based upon a claim of invasion of privacy by placing plaintiff in a false light.
The essential elements of such a claim are:
1. The defendant made a public disclosure of a fact about the plaintiff;
2. The fact disclosed was false, and portrayed the plaintiff in a false light;
3. The false light in which the plaintiff was placed would be highly offensive to a reasonable person;
[4. [A] The defendant had knowledge of or acted in reckless disregard of the falsity of the publicized fact and the false light in which the plaintiff would be placed;]
[4. [B] The defendant acted negligently in failing to learn whether the publicized fact placed plaintiff in a false light;] and
5. This public disclosure caused plaintiff to sustain [special] damages.
[Reckless disregard means that the defendant must have had serious doubts about the truthfulness of the facts disclosed and light in which the plaintiff would be placed at the time of the disclosure.] | TOP |
The plaintiff __________ [also] seeks to recover damages based upon a claim of invasion of privacy by appropriation of plaintiff's [name,] [or] [picture] [or] [identity].
The essential elements of such a claim are:
1. The defendant appropriated plaintiff's [name] [,] [or] [picture] [or] [identity];
2. The appropriation of plaintiff's [name] [,] [or] [picture] [or] [identity] was for defendant's own purposes or benefit, commercially or otherwise;
3. The plaintiff did not consent to such appropriation;
[4. The privacy interests of the plaintiff outweigh any public interest in the publication of plaintiff's [name] [or] [picture] [or] [identity];]
5. The appropriation caused plaintiff to sustain injury, damage, loss or harm.
[An incidental use of a [name] [,] [or] [picture] [or] [identity] is not an appropriation. Use constitutes an appropriation when the defendant does so for the purpose of exploiting or taking advantage of the plaintiff's reputation, prestige, social or commercial standing, or any public interest or other value attached to plaintiff's [name] [or] likeness [or] [identity].]
[In determining whether the plaintiff's privacy interest outweighs the public's interest, you should consider the medium of publication, the extent of the use, the public interest served by the publication, and the seriousness of the interference with the plaintiff's privacy.] | TOP |
(Civil Code § 3344)
The plaintiff __________ [also] seeks to recover damages based upon a claim of appropriation of a right of publicity for commercial purposes.
The essential elements of such a claim are:
1. The defendant knowingly used plaintiff's name, voice, signature, photograph or likeness [in any manner, on or in products, merchandise or goods] for purposes of [advertising or selling goods or services] [or] [soliciting purchases of products, merchandise, goods or services];
2. The plaintiff did not consent to such use[;] [.]
[3. Such use caused plaintiff to sustain injury, damage, loss or harm.]
["Photograph" means any photograph or photographic reproduction, still or moving, or any videotape or live television transmission, of any person, such that the person is readily identifiable.]
[A person is readily identifiable from a photograph when one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use.]
The defendant's use of plaintiff's name, voice, signature, photograph or likeness in a commercial medium shall not constitute a use for which plaintiff's consent is required solely because the material containing such use is commercially sponsored or contains paid advertising. Rather, you must determine from all of the evidence whether the defendant's use of plaintiff's __________ (name, etc.) was so directly connected with the commercial sponsorship, or with the paid advertising so as to constitute use for the purpose of advertising, selling, or soliciting purchases of product, merchandise, goods or services. | TOP |
(Calif.Constitution Article I, Section I)
The plaintiff ____________________ [also] seeks to recover damages based upon a claim of sexual harassment arising out of a business, service or professional relationship.
The essential elements of such a claim are:
1. There was a business, service or professional relationship between the plaintiff and defendant;
2. The defendant has made sexual advances, solicitations, sexual requests or demands for sexual compliance by the plaintiff;
3. Such conduct by the defendant was unwelcome by the plaintiff and was persistent or severe, continuing after a request by the plaintiff to stop;
4. Plaintiff was unable to easily terminate the relationship without tangible hardship; and
5. Such conduct by the defendant caused plaintiff to suffer [or will cause plaintiff to suffer,] injury, damage, loss or harm.
A business, service or professional relationship includes [____________________] (physician-patient, etc.) [a relationship that is substantially similar to that of ____________________]. (physician-patient, etc.) | TOP |
An invasion of a privacy interest is not a violation of the state constitutional right to privacy if the invasion was justified because it substantively furthered one or more legitimate and important countervailing interests. [Countervailing means of equal value, importance or significance.] In making this determination, you must compare the interest the plaintiff has asserted in privacy with the competing or countervailing nonprivacy interests supporting the defendant's conduct. This comparison process requires you to balance these competing interests, and determine whether the non-privacy interest[s] are as important or significant as the privacy interest[s] of the plaintiff.
[You should also consider whether it has been established that there were feasible and effective alternative measures to defendant's conduct which would have had a lesser impact on plaintiff's privacy interests. If there were such alternatives, the defendant's conduct was not justified.]
The defendant has the burden of establishing by a preponderance of the evidence all the facts necessary to prove the invasion of privacy was justified because it substantively furthered one or more countervailing interests. [The plaintiff, in turn may rebut such assertion of countervailing interests by showing that there were feasible and effective alternatives to defendant's conduct which would have had lesser impact on plaintiff's privacy interests.] VIOLATION OF STATE CONSTITUTIONAL RIGHT OF PRIVACY (Calif. Constitution Article I, Section I)
The plaintiff ____________________ [also] seeks to recover damages based upon a claim of sexual harassment arising out of a business, service or professional relationship.
The essential elements of such a claim are:
1. There was a business, service or professional relationship between the plaintiff and defendant;
2. The defendant has made sexual advances, solicitations, sexual requests or demands for sexual compliance by the plaintiff;
3. Such conduct by the defendant was unwelcome by the plaintiff and was persistent or severe, continuing after a request by the plaintiff to stop;
4. Plaintiff was unable to easily terminate the relationship without tangible hardship; and
5. Such conduct by the defendant caused plaintiff to suffer [or will cause plaintiff to suffer,] injury, damage, loss or harm.
A business, service or professional relationship includes [____________________] (physician-patient, etc.) [a relationship that is substantially similar to that of ____________________]. (physician-patient, etc.) | TOP |
If you find that the defendant invaded plaintiff's right of privacy and caused plaintiff to suffer injury, you must award plaintiff damages that will reasonably compensate for each of the following elements of claimed injury, damage, loss or harm:
1. Any harm to the plaintiff's interest in privacy resulting from the invasion, namely ____________________;
2. Any mental or emotional distress caused by the invasion, if it is of a kind that normally results from such an invasion; and
[3. Special damages caused by the invasion.
Special damages are those economic losses which the plaintiff has sustained to date, or is reasonably certain to suffer in the future in respect to property, business, trade, profession, or occupation [including the amount of money which plaintiff has expended as a result of the alleged invasion of privacy] [including the amount of actual damage which is a natural consequence of the invasion of privacy] which were caused by the defendant's invasion of plaintiff's privacy.] | TOP |
If you find that defendant invaded plaintiff's right of privacy by placing plaintiff in a false light and caused plaintiff to suffer injury, you must award plaintiff damages that will reasonably compensate plaintiff for any special damages caused by such invasion.
Special damages are those economic losses which the plaintiff has sustained to date, or is reasonably certain to suffer in the future in respect to property, business, trade, profession, or occupation [including the amount of money which plaintiff has expended as a result of the alleged invasion of privacy [and] [including the amount of actual damage which is a natural consequence of the invasion of privacy] which were caused by the defendant's invasion of plaintiff's privacy.
[If you find that plaintiff suffered some amount of special damage, you must also award damages that will reasonably compensate for (1) harm to plaintiff's reputation caused by the portrayal of plaintiff in a false light, and (2) any mental or emotional distress caused by the invasion, if it is of a kind that normally results from such an invasion.] | TOP |