BILL ANALYSIS AB 2479 Page 1 Date of Hearing: May 4, 2010 ASSEMBLY COMMITTEE ON JUDICIARY Mike Feuer, Chair AB 2479 (Bass) - As Amended: April 28, 2010 As Proposed to be Amended SUBJECT : Stalking: Surveillance KEY ISSUES : 1)Should the definition of "stalking" under California's civil anti-stalking statute be expanded to include placing a person "under surveillance?" 2)Should California's civil "invasion of privacy" statute be amended to include "false imprisonment" committed with the intent to capture a person's voice or visual image? FISCAL EFFECT : As currently in print this bill is keyed non-fiscal. SYNOPSIS Existing law makes a person liable for the civil tort of "stalking" if the person engages in a pattern of conduct that is intended to follow, alarm, or harass another person. In order to prevail, a plaintiff that brings an action under the stalking statute must prove all the following elements: (1) that the defendant engaged in a pattern of conduct that constituted stalking; (2) that as a result of that conduct the plaintiff reasonably feared for his or her safety, or for the safety of an immediate family member; and (3) that the defendant made a credible threat with the intent to place the plaintiff in such fear. In addition, existing law requires that the plaintiff must have, on at least one occasion, clearly demanded that the defendant cease the conduct and the defendant nevertheless persisted. This bill would expand the definition of "stalking" to include conduct that is intended to "place [a person] under surveillance," which is defined as remaining outside of another person's home, school, or workplace with no apparent lawful purpose. This bill also seeks to amend the state's civil "invasion of privacy" statute by including "false imprisonment" that is committed in order to obtain a visual image or other AB 2479 Page 2 impression of the person. According to the author, this bill seeks to abate aggressive behavior by paparazzi that go to any length to capture the sounds and images of celebrities and their families. The author contends that the existing anti-stalking and invasion of privacy statutes do not clearly cover the kinds of "surveillance" in which paparazzi often engage. The Motion Picture Association of America opposes this bill on the grounds that it is unnecessary and will interfere with numerous legitimate surveillance activities related to news gathering, piracy investigation, and certain entertainment programs. The Committee has suggested amendments that the author has agreed to accept; the bill summary below reflects the bill as proposed to be amended. SUMMARY : Expands the existing statute that makes a person liable in tort for stalking to include conduct that places a person under "surveillance" and amends the existing invasion of privacy statute to include "false imprisonment," as specified. Specifically, this bill : 1)Expands liability for the tort of stalking by adding "place under surveillance" to the list of intentional patterns of conduct that constitute "stalking." Provides, consistent with what is required under the existing statute, that such surveillance would only create liability if the plaintiff could also prove that the conduct (a) placed the plaintiff in reasonable fear for his or her safety, or the safety of an immediate family member; (b) was done with the intent of placing the plaintiff in such fear; and (c) that the plaintiff clearly demanded that the defendant cease the conduct and the defendant persisted in the conduct. 2)Defines "place under surveillance" to mean remaining present outside the plaintiff's school, school, place of employment, vehicle, residence, other than the residence of the defendant, or other place occupied by the plaintiff. Provides however that "place under surveillance" does not include various actions by law enforcement and private investigators, as specified. 3)Provides that a person who commits "false imprisonment" with the intent to capture any type of visual image, sound recording, or other physical impression of a plaintiff is subject to liability under the civil invasion of privacy statute and, as such, liable for up to three times the amount AB 2479 Page 3 of any general or special damages that are proximately caused by the conduct. EXISTING LAW : 1)Makes a person liable for the tort of stalking when the plaintiff proves all of the following elements of the tort: (a) that the defendant engaged in a pattern of conduct with the intent to follow, alarm, or harass the plaintiff; (b) that, as a result of that conduct, the plaintiff reasonably feared for his or her safety, or the safety of an immediate family member; (c) that the defendant made a credible threat with the intent of placing the plaintiff in such fear, OR the defendant's conduct was in violation of a restraining order prohibiting the conduct. Provides further the plaintiff must have made a clear demand that the defendant cease the conduct and the defendant nonetheless persisted. (Civil Code Section 1708.7.) 2)Defines "credible threat," for purposes of the above, to mean a verbal or written threat, including an electronic communication, or threat implied by a pattern of conduct, or a combination thereof, made with the intent and apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family. (Civil Code Section 1708.7 (b)(2).) 3)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 activity, and the physical invasion occurs in a manner that is offensive to a reasonable person. (Civil Code Section 1708.8 (a).) 4)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 AB 2479 Page 4 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. (Civil Code Section 1708.8 (b).) 5)Provides that a person who commits an assault with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff is subject to the same treble damages as is a person who commits a physical or constructive invasion of privacy. (Civil Code Section 1708.8 (c)-(f).) COMMENTS : This author-sponsored bill seeks to strengthen California's civil anti-stalking statute by expanding the definition of stalking to include placing a person "under surveillance." The bill also amends California's civil invasion of privacy statute to impose liability for false imprisonment when committed with the intent to capture a visual image, sound recording, or other physical impression of the plaintiff. As with the author's AB 524 (Chapter 499, Stats. of 2009), this bill is primarily an effort to curb the often aggressive tactics used by paparazzi to capture images and recordings of celebrities and their families in order to satiate a public that clamors for the intimate details of the lives of Hollywood stars. Adding "Place Under Surveillance" to the Existing Civil Anti-Stalking Statute. According to the author, this bill will strengthen the civil anti-stalking statute so as to prevent paparazzi from loitering outside of a celebrity's home or place of work, or even outside of the schools of the celebrity's children. Existing law (Civil Code Section 1708.7) provides that a person is liable for the tort of stalking if that person engages in certain patterns of conduct that intentionally put another person in fear of his or her safety, or the safety of his or her immediate family. The problem with existing law, according to the author, is that the covered patterns of conduct only include one who "follows, alarms, or harasses" another person for no legitimate purpose. However, the author contends that persistently loitering outside of a person's home, school, or workplace is -- and under the law should be -- enough to create a "reasonable fear for one's safety," or the safety of one's immediate family, that the anti-stalking statute was intended to prevent. Therefore, this bill would add the words "place under surveillance" to the existing list of patterned AB 2479 Page 5 conduct - follow, alarm, and harass - that constitutes "stalking" for purposes of the civil anti-stalking statute. Of course, the mere loitering outside of a person's home, school, or workplace would not, by itself, create liability under the statute. As is true with existing law, in order to prevail a plaintiff must not only prove that the defendant engaged in the pattern of conduct; the plaintiff must also prove that the conduct had the effect of putting the plaintiff in reasonable fear AND generally that the defendant acted with the intent to place the plaintiff in fear. (This "intent" element can also be met if the defendant's conduct was in violation of a restraining order.) In addition, the plaintiff must also show that, on at least one occasion, he or she demanded that the defendant cease the pattern of conduct and the defendant persisted. Adding "False Imprisonment" to the Invasion of Privacy Statute . Under the common law, there are four distinct categories of the tort of "invasion of privacy:" (1) intrusion upon a plaintiff's seclusion or solitude; (2) public disclosure of private facts; (3) publicity that places the plaintiff in a "false light;" and, (4) appropriation of a plaintiff's likeness or image for the defendant's advantage. Generally, the tort of intrusion requires intrusion into a private place in a manner that would be highly offensive to a reasonable person. (Turnbull v. ABC, 2004 U.S. Dist. LEXIS 24351.) California has attempted to codify a combination of categories (2) and (4) - intrusion and appropriation -- in Civil Code Section 1708.8, generally known as the "invasion of privacy" statute. A person committing the torts of intrusion and appropriation are generally subject to treble damages and other remedies, such as disgorgement of profits and injunctive relief. (Civil Code Section 1708.8 (d)-(f).) However, the statute also specifies that a person who commits an "assault" while attempting to capture a visual image, sound recording, or other physical impression of the plaintiff is subject to the same damages as one who commits an invasion of privacy. This bill would provide that "false imprisonment," along with assault, would similarly be subject to the same damages as one who commits physical or constructive invasion of privacy. The bill does not define "false imprisonment," but presumably it would have the same meaning that it has at common law: that is, AB 2479 Page 6 the intentional infliction of "confinement," with confinement defined as restricting a person to a confined physical space without any path of escape. Generally, the plaintiff must be aware that he or she is confined. (See Prosser, On Torts.) This provision is apparently targeted at the practice of paparazzi encircling or otherwise confining celebrities to the point that they are denied an avenue of escape. False imprisonment is not generally considered a form of "invasion of privacy," though, like invasion of privacy, it is an intentional tort that is actionable in its own right. Incorporating these independent torts into the codification of the "invasion of privacy" tort conflates what are in fact distinct torts, which makes its placement in this statute potentially confusing. However, the rationale for adding "false imprisonment" to the invasion of privacy statute is apparently the same as the justification for adding "assault" to this same statute in 2005: so that the plaintiff bringing a civil action for assault or false imprisonment will be entitled to the treble damages provided for in the invasion of privacy statute. (See Assembly Judiciary Committee, Analysis of AB 381, September 8, 2005.) Bill in Print Would Change Application of the Statute to Existing Forms of Stalking, Not Just "Surveillance ." While the goal of this bill is clear and admirable, the bill as currently in print regrettably appears to contain a number of structural ambiguities. The bill therefore would be simpler and more straight-forward if it simply added "place under surveillance" to the list of patterns of conduct that constitute "stalking," (as the author has now agreed to amend it as proposed to be amended.) Instead, the author, apparently in an effort to address the concerns of the Motion Picture Association of America (MPAA), added to the current in-print version of the measure a number of qualifying provisions and definitional changes that appear to create redundancy and inadvertent confusion. Moreover, some of the definitional changes were made in order to address "surveillance," but were done is such a way that they would also modify the other patterns of conduct that now constitute stalking, namely following, alarming, and harassing. Other qualifications in the current in-print version of the measure seem contrary to the author's stated objectives. For example, the April 28 version of the bill includes a provision stating that the provisions of the anti-stalking statute would not impair or limit the production of a number of works, AB 2479 Page 7 including audiovisual works, news or radio programs, magazines, or "similar work." This provision would seem to exempt some of the very paparazzi activity that the author seeks to make actionable. Obviously the paparazzi could claim exemption on the ground that they were producing an "audiovisual work," or gathering "news," or taking a picture for a magazine or some "similar work." The exemption, in short, appeared to inadvertently swallow the purpose of the bill, and this is cured in the bill as now proposed to be amended. PROPOSED COMMITTEE AMENDMENTS : In order to begin to address the current structural problems with the bill in print, and to ensure that the bill meets the author's objectives, the Committee has recommended, and the author has agreed, to amend the bill in Committee so as to add "place under surveillance" but without changing parts of the surrounding statute. In addition, the bill as proposed to be amended, would add a definition of "place under surveillance" that would appear to addresses some, but not all, of the concerns raised by the MPAA. And it would do this without modifying the existing statute as a whole. A mock-up of the existing statute with these proposed amendments appears at the end of this analysis; however, in brief, the Committee recommends deleting all the existing changes that the bill makes to the existing statute (save one) and making only the following two changes to existing Civil Code Section 1708.7: Amend section 1708.7 (a) (1) of the Civil Code to read: 1708.7. (a) A person is liable for the tort of stalking when the plaintiff proves all of the following elements of the tort: (1) The defendant engaged in a pattern of conduct the intent of which was to follow, alarm, place under surveillance or harass the plaintiff. In order to establish this element, the plaintiff shall be required to support his or her allegations with independent corroborating evidence. In addition to adding "place under surveillance" to the list of conduct that constitutes stalking, the Committee would also propose adding the following definition: (5) "Place under surveillance" means remaining present outside the plaintiff's school, place of employment, vehicle, residence, AB 2479 Page 8 other than the residence of the defendant, or other place occupied by the plaintiff. For purposes of the liability created by subdivision (a), "place under surveillance" does not include any lawful activity of law enforcement personnel or employees of agencies, either public or private, who, in the course and scope of their employment , encourage or attempt to engage in any conduct or activity to obtain evidence of suspected illegal activity or other misconduct, suspected violation of any administrative rule or regulation, suspected fraudulent conduct, or any suspected activity involving a violation of law or business practice or conduct of a public official that adversely affects public welfare, health, or safety. This proposed definition appears to respond, at least in part, to the concerns raised by the MPAA letter of opposition (which is discussed in more detail below). The language that describes what is not included within the meaning of "place under surveillance" is taken from language suggested by the MPAA to exempt this kind of law enforcement or private investigative activity from the anti-stalking statute as a whole. However, incorporating this language into the definition of "place under surveillance" would appear to appropriately ensure that the restriction only applies to the new conduct that is being added, not to the statute as a whole. This definition would appear to ensure that the bill does not interfere with or limit the actions of law enforcement, government agency investigators, or private licensed investigators in the scope of their employment. Engaging in "Surveillance" Does Not By Itself Create Liability . Both the introduced and April 28 version of this bill defined "place under surveillance" in a manner that required an "intent to engage in a pattern of conduct that places the plaintiff in reasonable fear of for his or her safety or that of an immediate family member." The problem with this definition would appear to that it confuses the definition of the conduct with the elements of the tort. That is, the statute already provides that there is no liability for the tort of stalking unless the plaintiff can prove that the conduct (1) caused the plaintiff to reasonably fear for his or her safety or the safety of an immediate family member, AND (2) that the conduct was done with the intent of creating such fear. The definition therefore risks unintended confusion. AB 2479 Page 9 The unintended confusion between the definition of the conduct and the elements of the tort is also evident in the MPAA letter of opposition, which raises the prospect that a plaintiff might bring an action in tort merely because someone is parked outside of their home, school, or workplace. But recall that mere conduct does not create liability. Liability requires the conduct plus all of the other elements of the tort. Under the rather stringent required elements in the statute, the plaintiff would have to show not only that the defendant engaged in the conduct, but that all of the following were also true: (1) the conduct caused the plaintiff to reasonably fear for his or her safety or the safety of an immediate family member; (2) the defendant made a "credible threat" with the "intent" to place the plaintiff in reasonable fear of his or her safety or the safety of an immediate family member; (3) that on at least one occasion the plaintiff clearly and definitively demanded that the defendant cease and abate his or her pattern of conduct; and (4) that the defendant persisted in his or her pattern conduct even after the demand to stop. The definition of the conduct, in short, does not establish liability. It requires the conduct as defined, and all of the other necessary elements of the tort. The above described amendments as proposed to be amended would appear not to address all of the concerns of the measure's opponents. Moreover, the opposition's concern that adding "surveillance" to the anti-stalking statute will require making other changes to the statute in order to properly take account of this addition appears to be well-founded. Therefore, the Committee may wish to recommend that the author continue to work on this important bill with all of stakeholders to consider other changes that may be warranted as the bill moves forward. ARGUMENTS IN SUPPORT : The author contends that adding a surveillance provision to the existing anti-stalking law will "prevent aggressive paparazzi from stalking celebrities by loitering outside celebrities' homes, schools, their children's schools, car, churches, medical facilities, restaurants, etc., for an opportunity to take non-consensual photos. The mere act of placing someone under surveillance is enough to create fear for one's safety . . . or the safety of an immediate family member." In addition, the author seeks to make paparazzi more accountable by extending the enhanced penalties in the invasion of privacy statute to any "false imprisonment" committed in an effort to acquire a photo of a person against their wishes. AB 2479 Page 10 The Paparazzi Reform Initiative (PRI) supports, in particular, the provision of this bill that will extend the damages provided in the invasion of privacy statute - especially disgorgement of profits - to photographers who commit "false imprisonment" by encircling celebrities to such an extent that they have no possibility of escape. ARGUMENTS IN OPPOSITION : The Motion Picture Association of America (MPAA) opposes this bill, at least as it understands the amendments that will be taken in Committee. First, MPAA claims that this bill will impede legitimate investigation and law enforcement activities, in particular efforts by MPAA member companies to investigate piracy. MPAA claims that under this bill, some the activity of MPAA members would be actionable. MPAA also argues that this measure will interfere with news gathering activities in a way that violates the First Amendment. MPAA claims that if this bill became law, the subjects of news stories could file a claim for stalking against the journalist or broadcaster who engaged in surveillance in pursuit of the story. MPAA also claims that this bill will interfere with the development of certain "reality" programming that secretly film and surprise people, similar to the old "Candid Camera" show. Finally, MPAA claims that existing privacy laws, including last years AB 524, provide adequate protections, and that this bill is simply unnecessary. Response to MPAA concerns and proposed amendments . The MPAA recommends two amendments. First, they seek an amendment that would exempt lawful investigative activity, whether by private or public entities, from any provisions of the anti-stalking statute. It is not clear whether the definition of "place under surveillance" as proposed in this analysis will meet that concern. Their proposal would exempt such activity from any tort action for stalking, not just those based on surveillance. The proposed definition suggested by the Committee in this analysis would restrict the exemption to claims based on surveillance, but not, for example, on harassing conduct. Second, MPAA seeks an exemption for persons engaged in developing or producing audiovisual works, motion pictures, television programming, news programs, magazines, or "similar work." As noted above, this broad definition would appear to include some of the very paparazzi activity that the author seeks to prevent. AB 2479 Page 11 Finally, MPAA worries that persons engaging in lawful investigations, news gathering, or production activities who must engage in forms of "surveillance" will inadvertently be potentially liable under the bill, due to the definition of "surveillance." However, as explained above, it is important to reiterate that none of these activities by themselves would appear to create liability. Merely engaging in acts of surveillance is not actionable. In addition to showing the investigators engaged in surveillance, the plaintiff would also need to allege that (1) the activity caused the plaintiff to reasonably fear for his or her safety or the safety of an immediate family member; (2) that the person engaging in the activity acted with the intent to cause such fear; and (3) that the plaintiff made at least one clear demand that the investigator stop the activity and the defendant persisted in the activity. None of the activities mentioned by MPAA would appear to create liability -- unless it was accompanied by all of the other elements of the tort. Prior Related Legislation . AB 524 (Chapter 499, Stats. of 2009) amended the "invasion of privacy" statute (Civil Code Section 1708.8) 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. Previously, the statute had only applied to the person who wrongfully obtained the image, recording, or physical impression, but not necessarily the entity that sold or published the image, recording, or impression. REGISTERED SUPPORT / OPPOSITION : Support Paparazzi Reform Initiative Opposition Motion Picture Association of America Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334