BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 524
Speaker Bass
As Amended June 29, 2009
Hearing Date: July 14, 2009
Civil Code
KB:jd
SUBJECT
Privacy
DESCRIPTION
This bill would amend existing law so that a person who sells,
transmits, publishes, or broadcasts an image, recording, or
physical impression of someone engaged in a personal or familial
activity violates the state's "invasion of privacy" statute if
that person has actual knowledge that the image, recording, or
impression was unlawfully obtained, and provided compensation,
consideration, or remuneration, monetary or otherwise, for the
use of, or rights to, the unlawfully obtained images or
recordings.
This bill would also provide that a person who violates the
statute, or who directs, solicits, actually induces, or actually
causes another person to violate any of those provisions would
be subject to a civil fine of not less than $5,000 and not more
than $50,000. This bill would further authorize a county
counsel or a city attorney to bring a civil action in the name
of the people whenever that attorney has reasonable cause to
believe that a violation of these provisions has occurred, and
specify the allocation of the recovered fines.
BACKGROUND
In 1998, in response to the tragic death of Princess Diana,
California became the first state in the nation to pass
legislation to attempt to rein in overzealous and aggressive
photographers and reporters, known as "paparazzi." In order to
supplement the common law tort of invasion of privacy, the
(more)
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Legislature created a statutory cause of action for "invasion of
privacy" that imposes liability on any person who: (1) intrudes
upon the private space of another person; (2) in order to
capture images or recordings of that person engaging in a
personal or familial activity, (3) in a manner that is offensive
to a reasonable person. (Civ. Code Sec. 1708.8; SB 262 (Burton,
Chapter 1000, Statutes of 1998).) The statute was subsequently
amended in 2005 to additionally provide that assault committed
with intent to photograph or record a person is subject to the
same remedies available for physical or constructive invasion of
privacy. (AB 381 (Montanez, Chapter 424, Statutes of 2005).)
Despite the enactment of these statutory remedies, there
continue to be a flurry of news reports on the increasing
tension between celebrities and photographers, which at times
have escalated to the point of physical confrontations.
Defenders of the paparazzi allege that the problem is not the
paparazzi, but rather the public's appetite to learn about even
the most mundane details of the celebrities' lives. Some also
assert that celebrities themselves want the best of both worlds,
seeking out the cameras when they want to bask in the limelight,
and smashing those same cameras on the ground when they find
them annoying.
This bill seeks to increase privacy protections for individuals
by broadening the reach of the state's "invasion of privacy"
statute, imposing civil fines for violations, and authorizing
city attorneys and county counsels to bring actions under the
statute.
CHANGES TO EXISTING LAW
Existing common law recognizes four distinct categories of the
tort of "invasion of privacy:" (a) intrusion upon a plaintiff's
seclusion or solitude; (b) public disclosure of private facts;
(c) publicity that places the plaintiff in a "false light;" and
(d) appropriation of a plaintiff's likeness or image for the
defendant's advantage. (Turnbull v. American Broadcasting
Companies, (2004) 32 Media L. Rep. 2442.)
Existing law makes a person liable for "physical invasion of
privacy" for knowingly entering onto the land of another person
or otherwise committing a trespass in order to physically invade
the privacy of another person with the intent to capture any
type of visual image, sound recording, or other physical
impression of that person engaging in a personal or familial
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activity, and the physical invasion occurs in a manner that is
offensive to a reasonable person. (Civ. Code Sec. 1708.8 (a).)
Existing law makes a person liable for "constructive invasion of
privacy" for attempting to capture, in a manner highly offensive
to a reasonable person, any type of visual image, sound
recording, or other physical impression of another person
engaging in a personal or familial activity under circumstances
in which the plaintiff had a reasonable expectation of privacy,
through the use of a visual or auditory enhancing device,
regardless of whether there was a physical trespass, if the
image or recording could not have been achieved without a
trespass unless the visual or auditory enhancing device was
used. (Civ. Code Sec. 1708.8 (b).)
Existing law defines "personal or familial activity" as
including, but not limited to, intimate details of the
plaintiff's personal life, interactions with family or
significant others, or other aspects of the plaintiff's private
affairs or concerns. (Civ. Code Sec. 1708.8 (l).)
Existing law provides that the sale, transmission, publication,
broadcast, or use of any image or recording shall not itself
constitute a violation of the statute, but neither shall
anything in the statute be construed to limit any other rights
or remedies that a plaintiff may have in law and equity. (Civ.
Code Sec. 1708.8 (f).)
Existing law provides that an assault committed with the intent
to capture any type of visual image, sound recording, or other
physical impression is subject to enhanced statutory penalties
and remedies prescribed. (Civ. Code Sec. 1708.8 (c).)
Existing law provides that a person who violates the statute for
a commercial purpose shall, in addition to any other damages or
remedies provided, be subject to disgorgement to the plaintiff
of any proceeds or other consideration obtained as a result of
the violation of this section. Existing law defines "commercial
purpose" to mean any act done with the expectation of sale,
financial gain, or other consideration. (Civ. Code Sec. 1708.8
(d), (k).)
Existing law provides that a person who directs, solicits,
actually induces, or actually causes another person, regardless
of whether there is an employer-employee relationship, to commit
a violation of the statute, is liable for any general, special,
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and consequential damages resulting from each violation. (Civ.
Code Sec. 1708.8 (e).)
Existing law generally exempts from the statute any lawful
activities of law enforcement personnel or employees of
governmental agencies or other entities, either public or
private who, in the course and scope of their employment, and
supported by articuable suspicion, attempt to capture any type
of visual image, sound recording, or other physical impression
as part of an investigation, surveillance, or monitoring of any
conduct in order to obtain evidence of suspected unlawful or
fraudulent activity or any pattern of practices that affect
public health and safety. (Civ. Code Sec. 1708.8 (g).)
This bill would provides that the sale, transmission, broadcast,
or use of any image or recording that was obtained in violation
of California's existing invasion of privacy statute, relating
to unreasonable and offensive intrusions into personal and
familial matters, constitutes a violation of the statute if the
person selling, transmitting, broadcasting, or using the image
or recording has actual knowledge the images or recordings were
obtained illegally, and provided compensation, consideration, or
remuneration, monetary or otherwise, for the use of, or rights
to, the unlawfully obtained images or recordings.
This bill would provide that a person who violates the "invasion
of privacy" statute provisions described above, or who directs,
solicits, actually induces, or actually causes another person to
violate any of those provisions would be subject to a civil fine
of not less than $5,000 and not more than $50,000.
This bill would authorize a county counsel or a city attorney to
bring a civil action in the name of the people whenever that
attorney has reasonable cause to believe that a violation of the
"invasion of privacy" statute has occurred.
This bill would specify the allocation of the fines collected
pursuant to the foregoing provision, including 1/3 to the
prosecuting agency and 1/3 to the victim or the victim's
designated recipient. This bill would also establish the Arts
and Entertainment Fund in the State Treasury for the deposit of
1/3 of the fines, for expenditure by the California Arts
Council, upon appropriation by the Legislature, as specified.
This bill would make legislative findings and declarations as to
the problem of photographers, videographers, and audio recorders
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harassing, invading the privacy interest, and physically
endangering individuals and their families in order to capture
images and recordings for commercial purposes. This bill would
find and declare further that the right of a free press to
report details of an individual's private life must be weighed
against the rights of the individual to enjoy liberty and
privacy.
COMMENT
1.Stated need for the bill
According to the author, the conduct of the paparazzi too often
goes way beyond reasonable efforts to take pictures of
celebrities in public places, to include intrusive and sometimes
highly offensive harassment that not only invades personal and
familial privacy but, at times, seriously endangers the public
at large.
This bill seeks to deter invasive paparazzi conduct by attaching
liability to publishers who use paparazzi, thereby removing the
financial incentive for paparazzi to continue pursuing and
photographing celebrities.
1.Balancing the First Amendment and the Right to Privacy
This bill invokes one of the most complex areas of
constitutional law: the balance between an individual's right
to privacy, and the First Amendment's protection of truthful
publications of matters of public concern. For those of us who
live our lives in relative obscurity, the details of our private
lives rarely, if ever, become matters of public concern. But
when persons voluntarily interject themselves into the public
arena - whether as politicians, movie stars, or professional
athletes - the line between what is private and what is a matter
of public concern can become increasingly blurred. Government
power to protect the privacy interests of citizens by penalizing
publication or authorizing causes of action for publication
typically is found to implicate First Amendment rights directly.
(See e.g. William Prosser, Law of Torts 117 4th ed. 1971.)
The United States Supreme Court has held that civil liability
for speech, even in the context of private civil litigation, is
an interference with free speech and must meet First Amendment
scrutiny. (See New York Times v. Sullivan, (1964) 376 U.S. 254,
277 ("What a State may not constitutionally bring about by means
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of a criminal statute is likewise beyond the reach of its civil
law ? The fear of damage awards ? may be markedly more
inhibiting than the fear of prosecution under a criminal
statute. ").) Thus, liability for common law torts such as
invasion of privacy must be consistent with First Amendment
standards. (See Florida Star v. B.J.F., (1989) 491 U.S. 524
(holding that where a newspaper publishes truthful information
which it has lawfully obtained, punishment may lawfully be
imposed, if at all, only when narrowly tailored to a state
interest of the highest order).)
The issue presented by AB 524 is whether the state can "punish"
the publisher of images or recordings that were unlawfully
obtained by another party when the publisher (1) knew the
material was unlawfully obtained and (2) paid money or other
compensation, for the use of, or rights to, the images or
recording. Out of the substantial body of caselaw that has been
generated by the tension between privacy and First Amendment
rights, there is no decision which directly addresses this
issue. However, two cases in particular, which are discussed
below, provide some guidance in determining the appropriate
parameters of the state's power in this instance to protect its
citizens' privacy rights.
a) Shulman v. Group W. Productions (1998) 18 Cal.4th 200
In Shulman, the defendants filmed the rescue of Ruth Shulman,
who had been seriously injured when her car overturned. The
film crew then equipped a nurse on board a rescue helicopter
with a microphone, recording her conversation with the patient
while en route to the hospital. The film and recordings were
later broadcast as a nine-minute segment on a documentary
television show called "On Scene: Emergency Response." Ms.
Shulman sued the producers of the TV show alleging both (1) an
invasion of privacy based on "intrusion" (the filming and
recording), and (2) public disclosure of private facts, for
the subsequent broadcast.
As to the first cause of action, the California Supreme Court
noted that the action for intrusion has two elements: (1)
intrusion into a private place, conversation, or matter; (2)
in a manner highly offensive to a reasonable person. (Id. at
231.) In reaching its conclusion, the Court noted that "all
the circumstances of an intrusion, including the motives or
justification of the intruder, are pertinent to the
offensiveness element." (Id. at 236.) The Court held that
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the accident victim had a reasonable expectation of privacy in
communications once inside the rescue helicopter. The Court
further found that a jury could find that the filming, and
especially the recording while on the helicopter, was "highly
offensive to a reasonable person," and therefore overturned
the trial court's summary judgment in favor of the defendants.
With respect to the second cause of action, the issue before
the Court was whether "the facts disclosed about a private
person involuntarily caught up in events of public interest
bear a logical relationship to the newsworthy subject of the
broadcast and are not intrusive in great disproportion to
their relevance." (Id. at 215.)
The Court stated:
First, the analysis of newsworthiness does involve courts
to some degree in a normative assessment of the "social
value" of a publication. All material that might attract
readers is not, simply by virtue of its attractiveness, of
legitimate public interest. Second, the evaluation of
newsworthiness depends on the degree of intrusion and the
extent to which the plaintiff played an important role in
public events and thus on a comparison between the
information revealed and the nature of the activity or
event that brought the plaintiff to public attention.
"Some reasonable proportion is ? to be maintained between
the events or activity that makes the individual a public
figure and the private facts to which publicity is given."
(Id. at 222 (citations omitted).)
After determining that the accident and medical treatment were
newsworthy, the Court found that Ms. Shulman's appearance and
communication were substantially relevant to the broadcast,
which was, as a matter of law, of legitimate public concern.
Thus, the Court appeared to find in the Shulman case the state
can constitutionally punish acts of newsgathering as
intrusions upon privacy without offending the First Amendment,
depending upon the degree of offensiveness of the
newsgathering technique and the newsworthiness of the subject
matter. However, as to the broadcasting of the incident, the
Court found that the details of the rescue were, as a matter
of law, of legitimate public concern and substantially related
to the newsworthy subject of the piece.
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b) Bartnicki v. Vopper (2001) 532 U.S. 514
In Bartnicki, the United States Supreme Court considered for
the first time liability for invasion of privacy when the
information was illegally obtained from private sources.
Bartnicki involved review of a provision of the federal
Omnibus Crime Control Act of 1986, which made it a crime to
intentionally intercept any wire, oral, or electronic
communication without consent of all the parties involved in
the communication. The same statute made it unlawful to
intentionally disclose the contents of such a communication if
the person disclosing it "knew or had reason to know" that the
information had been illegally obtained.
An unknown person intercepted a cell phone conversation
between a union organizer and the president of a teacher's
union concerning ongoing negotiations with a local school
board. During the course of this unlawfully intercepted
conversation, one of the parties suggested that if some of the
board members did not change their intransigent stance, then
they might have to "blow off the porches" of some of their
homes. A tape of the phone conversation found its way to a
local radio station that played it twice on the air. When the
case reached the Court the parties had stipulated to a number
of key issues: (1) that the conversation had been unlawfully
obtained; (2) that the radio station played no role in
obtaining the recording but did know, or had reason to know,
that it had been unlawfully obtained; and (3) that the federal
law was a "content neutral" law of general applicability.
Thus, the question before the Court was not whether the
statute was facially invalid, but whether it was invalidly
applied.
The majority held that the application of the statute as
applied in this case violated the First Amendment. The Court
focused on several factors in concluding that the radio
program's broadcasts were protected by the First Amendment,
even though it knew the recording was unlawfully obtained: (1)
it involved a matter of obvious public concern; (2) the radio
program had played no role in obtaining the information and
had done nothing to encourage the obtaining of the
information; and (3) the radio station had itself obtained the
information lawfully. "In this case, privacy concerns give
way when balanced against the interest in publishing matters
of public importance ? The right of privacy does not prohibit
any publication of matter which is of public or general
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interest ? One of the costs associated with participation in
public affairs is an attendant loss of privacy." (Id. at 534
(citations omitted).)
In addition, the Court rejected the government's claim in
support of applying the statute that the government had an
interest in deterring illegal activity. The Court found the
deterrence argument to be weak, concluding that "[t]he normal
method of deterring unlawful conduct is to impose an
appropriate punishment on the person who engages in it. If
the sanctions that presently attach to a violation ? do not
provide sufficient deterrence, perhaps those sanctions should
be made more severe. But it would be quite remarkable to hold
that speech by a law-abiding possessor of information can be
suppressed in order to deter conduct by a non-law-abiding
third party." (Id. at 530.)
It is important to note that the Court repeatedly emphasized
the narrowness of the court's holding as applied directly to
the facts before it, and expressly disavowed articulating any
broad principles to resolve the complex competing interests at
stake.
The holdings in Shulman and Bartnicki - although each limited
to the narrow facts before their respective Courts - establish
several key points relevant to a constitutional analysis of
this bill as it proposes to amend existing law: (1) that
unlawful actions do not implicate the First Amendment since
they are not forms of speech or expression; (2) that
publication of even unlawfully obtained information implicates
the First Amendment; but (3) that laws that prohibit the
disclosure of unlawfully obtained information, where the one
disclosing knows or has reason to know that it was unlawfully
obtained, are not necessarily facially unconstitutional, but
may be found to be unconstitutional as applied, especially
where the information is of a matter of genuine public
concern.
1. AB 524 and First Amendment
implications
As demonstrated by the Shulman and Bartnicki decisions, in
balancing competing privacy and First Amendment interests,
courts will look to the entire facts of each case, including the
circumstances of the type and degree of intrusion into a
person's privacy, and whether or not the information at issue is
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a newsworthy matter of public concern. Unlawful newsgathering
is not protected by the First Amendment, but truthful
publication of information, even if unlawfully obtained, does
implicate the First Amendment.
In its existing form, Civil Code Section 1708.8 punishes the
intrusion of privacy in an attempt to capture images and
recordings, but expressly states that the publishing or
broadcasting of such information is not a violation of the
statute. Section 1708.8 has been applied in a number of cases,
some of which involve the media. (See Turnbull v. American
Broadcasting Companies (2004) 32 Media L. Rep. 2442 (a
television producer who attended a private acting workshop
undercover might be liable under Section 1708.8 because she: (1)
did not have permission to attend as a reporter and may have
trespassed; (2) surreptitiously recorded personal conversations;
and (3) did so in a manner that was offensive to a reasonable
person).)
AB 524 would amend existing law to provide that publishing or
broadcasting unlawfully obtained images or recording violates
the invasion of privacy statute if the publisher or broadcaster
(1) has actual knowledge that the image, recording, or
impression was unlawfully obtained, and (2) provided
compensation, consideration, or remuneration, monetary or
otherwise, for the use of, or rights to, the unlawfully obtained
images or recordings. The first provision of AB 524 appears
similar to the federal statute in the Bartnicki case, except
that this bill adopts a higher standard of "actual knowledge"
that the material was obtained unlawfully (as opposed to "knew
or should have known"). However, this bill adds an additional
element, which conditions the violation on the payment of money
or other compensation for the rights to the images or
recordings. This is presumably intended to deter the purchase
of unlawfully obtained images, thereby removing the paparazzi's
financial incentives to intrude into the private lives of
celebrities.
Under existing law, a person who violates the "invasion of
privacy" statute is liable for up to three times the amount of
general and special damages, and may be liable for punitive
damages. If the plaintiff proves that the invasion of privacy
was committed for a commercial purpose, the defendant is also
subject to disgorgement to the plaintiff of any proceeds or
other consideration obtained as a result of the violation. This
bill would further provide that a person who violates the
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statute is also subject to a civil fine of not less than $5,000
and not more than $50,000. This bill would additionally
authorize a county counsel or a city attorney to bring a civil
action in the name of the people to obtain any or all
appropriate relief whenever that attorney has reasonable cause
to believe that a violation has occurred. Fines collected by
the county counsel or city attorney would be allocated as
follows: one-third to the prosecuting agency, one-third to the
victim or the victim's designated recipient, and one-third to
the Arts and Entertainment Fund in the State Treasury, which
would be created by this bill.
"[G]enerally applicable laws do not offend the First Amendment
simply because their enforcement against the press has
incidental effects on its ability to gather and report the
news." (Cohen v. Cowles Media Co., (1991) 501 U.S. 663,
669-670.) However, AB 524, while laudable in its goals, may
arguably have the effect of deterring the reporting of matters
of genuine public importance or concern simply by making the
method of capture, and not the newsworthiness, of an image or
recording, the main factor to consider when determining whether
to publish or broadcast the material. If the press could prove
in a specific instance that the application of AB 524
significantly burdens its ability to function, a court could
arguably determine, depending on the specific facts of the case,
that the law, while facially constitutional, is unconstitutional
as applied. Conversely, a court may also find that a person's
purchase and broadcast or publishing of images that he or she
knew were unlawfully obtained are not protected by the First
Amendment, and as in Shulman, determine that a person's right of
privacy outweighs any interest in the public's right to know.
These determinations will undoubtedly turn on the intricacies
and facts of each specific case.
1. Bill would allow public
attorneys to bring actions
This bill would allow a county counsel or city attorney to bring
actions under the invasion of privacy statute for "any and all
appropriate relief" whenever they have reasonable cause to
believe that a violation of this section has occurred. This
allows a public attorney to bring an action on behalf of a
private party whose privacy has been invaded. This committee
may wish to consider whether there is a compelling public
interest that justifies authorizing city attorneys or county
counsels to litigate a tort action pursuant to the statute, and
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why the remedies already available to private parties are not
sufficient. Should this committee determine that the
authorization is appropriate, it may wish to consider whether
the bill should be amended to limit the actions public
prosecutors may bring to the recovery of civil fines where there
would be more of a discernable benefit to the public.
SHOULD PUBLIC PROSECUTORS BE ALLOWED TO BRING ACTIONS UNDER THE
INVASION OF PRIVACY STATUTE? IF SO, SHOULD THE ACTIONS THEY MAY
BRING BE LIMITED TO THE RECOVERY OF CIVIL FINES?
1. Opposition
Various concerns have been expressed about the potential
consequences should this bill be enacted. In particular, in
their opposition letter to AB 524, the California Newspaper
Publishers Association (CNPA) argues that the enactment of this
bill would force the Legislature to tread "into uncharted First
Amendment territory, where costs of litigation are
excruciatingly expensive." This bill, CNPA says, would allow
city and district attorneys to pursue a victim's personal civil
action at the expense of taxpayer dollars. Traditionally, CNPA
argues, there has not been a societal interest in using taxpayer
funds to protect the private property and personal moments of an
individual. To use public resources in such a manner would be
unjustified.
Additionally, in its letter, the CNPA cites to Bartnicki v.
Vopper, which held that "the media is constitutionally protected
from liability even for the publication of information
unlawfully obtained by a third party and then transmitted to the
media where the information concerns a matter of public concern
and the media did not participate in the unlawful capturing of
the information." It is not possible, argues CPNA, to enact AB
524 which would prosecute such persons, and still be consistent
with Bartnicki v. Vopper.
Another main concern, expressed by the California Broadcasters
Association (CBA), is how far liability will be extended and its
affect on daily broadcast operations. Specifically, CBA states:
AB 524 demands that broadcasters decided on the legality of
the photographer's conduct, with few available facts other
than the images themselves. If the photographer committed a
physical trespass or constructive trespass (telephoto lens), a
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station cannot purchase the video - unless the taping was
consensual, not of a personal or family activity, or captured
in an offensive manner. Who do you ask for clarification?
The biased person in the video who doesn't want it broadcast
or the one who wants to trade it for money?
CBA also points to instances where a station purchases a program
produced by a third party, and is assured the program contents
were obtained legally. CBA questions whether and to what extent
may the purchasing station rely on those assurances? Instead
of focusing on the newsworthiness of the content, CBA asserts
that news broadcasters and program directors will be more
concerned with the potential liability that accompanies its
broadcast.
Support : Screen Actors Guild
Opposition : California Newspaper Publishers Association;
California Broadcasters Association; Californians Aware;
American Civil Liberties Union
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
SB 262 (Burton, Chapter 1000, Statutes of 1998). See
Background.
AB 381 (Montanez, Chapter 462, Statues of 2005). See
Background.
Prior Vote :
Assembly Judiciary Committee (Ayes 8, Noes 2)
Assembly Floor (Ayes 55, Noes 14)
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