BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 2479 (Bass)
As Amended June 1, 2010
Hearing Date: June 22, 2010
Fiscal: No
Urgency: No
KB:jd
SUBJECT
Stalking: Surveillance
DESCRIPTION
This bill would provide 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.
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
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
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continues to be a flurry of news reports on the increasing
tension between celebrities and photographers, which at times
has 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.
Last year, the Legislature enacted and the Governor signed, AB
524 (Bass, Chapter 449, Statutes of 2009) which expanded the
reach of the state's "invasion of privacy" statute to include
the sale, publication, or broadcast of a physical impression of
someone engaged in a personal or familial activity if the person
knows that the image was unlawfully obtained. By attaching
liability to publishers who use paparazzi, the author hoped to
remove the financial incentive for paparazzi to continue
pursuing and photographing celebrities.
This bill would seek to further strengthen the state's
"anti-paparazzi" laws by providing that a person who commits
"false imprisonment" with the intent to capture any type of
physical impression is subject to liability under the civil
invasion of privacy 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
activity, and the physical invasion occurs in a manner that is
offensive to a reasonable person. (Civ. Code Sec. 1708.8 (a).)
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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,
and consequential damages resulting from each violation. (Civ.
Code Sec. 1708.8 (e).)
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Existing law 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. (Civ. Code
Sec. 1708.8(f).)
Existing law provides 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. (Civ. Code
Sec. 1708.8.)
This bill would provide 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.
COMMENT
1. Stated need for the bill
The author states:
In today's pop-culture-driven world, so-called paparazzi go to
unprecedented lengths to obtain photographs of celebrities to
sell to the tabloids and mainstream publications (for
increasingly large dollar amounts). Though paparazzi have
long been fixtures in the arts and entertainment industry,
they are now employing more aggressive and unsafe tactics
endangering not just the celebrities but the general public as
well. These out-of-control paparazzi will try to get "money
shots" - pictures of celebrities at their most vulnerable - in
the throes of scandal or personal crisis. These aggressive
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paparazzi deliberately terrify celebrities to get more
interesting pictures, not just the photo of the celebrity
smiling or standing in front of the red carpet ?
Celebrities are routinely boxed-in when paparazzi (1) horde
around an entranceway to a public facility to snap
photographs; (2) park their cars in such a manner as to
block-in a celebrity's vehicle; (3) ram their cars into a
celebrity's car; (4) surround a celebrity in an airport or
other public transportation facility; or (5) generally engage
in aggressive conduct to significantly limit a celebrity's
freedom of movement. Such conduct significantly impairs a
celebrity's personal liberty and freedom of movement. Freedom
of movement is what the tort of false imprisonment is designed
to protect ? 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 author further notes that AB 2479 previously contained
language to address the problem of incessant stalking of
celebrities by paparazzi in order to take pictures or record
videos. However, the bill was amended on June 1, 2010 to remove
the stalking provisions with the understanding that the author
would continue to work with the various stakeholders in order to
craft language that will address the issue of unlawful and
dangerous surveillance without limiting constitutionally
protected activities.
2. 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 who live
their lives in relative obscurity, the details of 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.)
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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
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).)
3.Bill would extend "invasion of privacy" statute to include
false imprisonment in order to capture images for financial
gain
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 codified a statutory an "invasion of privacy"
statute that contains elements of intrusion and appropriation of
image. (Code Civ. Proc. Sec. 1708.8.) 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. AB 524 further added civil fines
between $5,000 and $50,000.
Current law 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. (Id.) AB 381 (Monta?ez, Chapter 424, Statutes of
2005) added "assault" into the statute apparently also in
response to increasingly aggressive paparazzi tactics.
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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
statutory definition of false imprisonment is contained in Penal
Code Section 236 and provides that "[f]alse imprisonment is the
unlawful violation of the personal liberty of another."
Generally, false imprisonment involves the intentional
confinement of another against the person's will. The elements
of a tortious claim of false imprisonment are: (1)
nonconsensual, intentional confinement of a person; (2) without
lawful privilege; (3) for an appreciable period of time, however
brief. (See Easton v. Sutter Coast Hosp. (2000) 80 Cal.App.4th
485, 496.)
These provisions are 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 by itself is not generally considered a form of
invasion of privacy. Instead, it is an intentional tort that is
actionable in its own right. Incorporating these otherwise
independent torts into the same statute would enable a
successful plaintiff to recover treble damages in instances
where he or she was falsely imprisoned for the purposes of
capturing his or her physical likeness, which appears to be one
of the goals of this bill.
4. AB 2479 and First Amendment implications
Under the First Amendment, newspersons are generally accorded a
constitutional privilege that protects their right to seek out
information. (See Nicholson v. McClatchy Newspapers, (1986) 177
Cal.App.3d 509, 519 (while reporters are not privileged to
commit crimes and independent torts in gathering the news, the
newsgathering component of the freedom of the press is
privileged to the extent that it involves routine reporting
techniques).) This privilege prohibits the imposition of civil
liability based on the acts of reporters in gathering the news
through routine reporting techniques such as asking questions,
or the publishing of truthful, newsworthy information in its
possession. (Id.) However, despite the constitutional
privilege for newsgathering, the press has no recognized
constitutional privilege to violate generally applicable laws in
pursuit of news material. (Cohen v. Cowles Media Co. (1991) 501
U.S. 663, 669-670.)
AB 2479, while laudable in its goals, could potentially have the
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effect of deterring the reporting of matters of genuine public
importance or concern simply by potentially exposing reporters
to increased liability and penalties during the newsgathering
process. If the press could prove in a specific instance that
the application of AB 2479 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 reporter's methods of newsgathering
are not routine reporting techniques that are protected by the
First Amendment. These determinations will undoubtedly turn on
the intricacies and facts of the various scenarios that may
occur.
Support : The Paparazzi Reform Initiative; Screen Actors Guild
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : See Background.
Prior Vote :
Assembly Judiciary Committee (Ayes 7, Noes 1)
Assembly Floor (Ayes 56, Noes 16)
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