BILL ANALYSIS
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THIRD READING
Bill No: AB 2479
Author: Bass (D)
Amended: 6/1/10 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-1, 6/29/10
AYES: Corbett, Hancock, Leno
NOES: Harman
NO VOTE RECORDED: Walters
ASSEMBLY FLOOR : 56-16, 6/3/10 - See last page for vote
SUBJECT : Stalking: surveillance
SOURCE : Author
DIGEST : This bill 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.
ANALYSIS : Existing common law recognizes 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
CONTINUED
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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. (Section 1708.8 (a) of the Civil Code
[CIV])
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 Section 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 Section 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 Section 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
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Section 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 Section 1708.8 (d) and (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 Section 1708.8 (e))
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 Section 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 Section 1708.8)
This bill 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.
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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 Section 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
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
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photographing celebrities.
This bill seeks 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 7/1/10)
Screen Actors Guild
The Paparazzi Reform Initiative
ARGUMENTS IN SUPPORT : 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
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
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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."
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Arambula, Bass, Beall, Blakeslee,
Block, Blumenfield, Bradford, Brownley, Buchanan,
Caballero, Charles Calderon, Carter, Chesbro, Conway,
Cook, Coto, Davis, De La Torre, De Leon, Eng, Evans,
Feuer, Fletcher, Fong, Fuentes, Galgiani, Gilmore, Hall,
Hayashi, Hernandez, Hill, Huber, Huffman, Jones, Lieu,
Bonnie Lowenthal, Ma, Mendoza, Monning, Nava, Nielsen, V.
Manuel Perez, Ruskin, Salas, Saldana, Skinner, Smyth,
Solorio, Swanson, Torlakson, Torres, Torrico, Yamada,
John A. Perez
NOES: Anderson, Bill Berryhill, DeVore, Emmerson, Fuller,
Gaines, Garrick, Hagman, Harkey, Jeffries, Knight, Logue,
Miller, Nestande, Niello, Villines
NO VOTE RECORDED: Tom Berryhill, Furutani, Norby,
Portantino, Silva, Audra Strickland, Tran, Vacancy
RJG:mw 7/1/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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