BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2479
                                                                  Page  1

          ASSEMBLY THIRD READING
          AB 2479 (Bass) 
          As Amended  June 1, 2010
          Majority vote 

           JUDICIARY           7-1                                         
           
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          |Ayes:|Feuer, Brownley, Evans,   |     |                          |
          |     |Jones, Monning, Nava,     |     |                          |
          |     |Skinner                   |     |                          |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Knight                    |     |                          |
          |     |                          |     |                          |
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           SUMMARY  :  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 damages and remedies  
          available pursuant to that statute, as specified. 

           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.  

          2)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  








                                                                  AB 2479
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            offensive to a reasonable person.  

          3)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.  

          4)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.  

           FISCAL EFFECT  :  None 

           COMMENTS  :  The bill 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, Statutes 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. 

          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 -- 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  








                                                                  AB 2479
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          remedies, such as disgorgement of profits and injunctive relief.  
           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,  
          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.  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. 

           
          Analysis Prepared by  :    Thomas Clark / JUD. / (916) 319-2334 


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