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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