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 (more) AB 2479 (Bass) Page 2 of ? 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).) AB 2479 (Bass) Page 3 of ? 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).) AB 2479 (Bass) Page 4 of ? 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 AB 2479 (Bass) Page 5 of ? 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.) AB 2479 (Bass) Page 6 of ? 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. AB 2479 (Bass) Page 7 of ? 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 AB 2479 (Bass) Page 8 of ? 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) **************