BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                  AB 2479|
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                                 THIRD READING


          Bill No:  AB 2479
          Author:   Bass (D)
          Amended:  8/20/10 in Senate
          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.

           Senate Floor Amendments  of 8/20/10 create enhanced  
          penalties for reckless driving in specified circumstances.

           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)  
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          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.  (  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  







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          intent to capture any type of visual image, sound  
          recording, or other physical impression is subject to  
          enhanced statutory penalties and remedies prescribed.  (CIV  
          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  







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          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 makes it a crime to willfully interfere with  
          the driver of a vehicle or with the mechanism thereof so as  
          to affect the driver's control of the vehicle, to follow  
          another vehicle more closely than is reasonable and  
          prudent, as specified, and to engage in reckless driving,  
          as described.

          This bill makes it a misdemeanor to violate any of those  
          provisions with the intent to capture any type of visual  
          image, sound recording, or other physical impression of  
          another person for a commercial purpose.  This bill  
          provides that this crime is punishable by imprisonment in a  
          county jail and a fine of not more than $2,500, except as  
          specified.  This bill further provides that a person who  
          commits that act and, in addition, causes a minor to be  
          placed in a situation in which his/her person or health is  
          endangered is also guilty of a misdemeanor punishable by  
          imprisonment in a county jail for not more than one year  
          and a fine of not more than $5,000, except as specified.   
          Because this bill creates new crimes, this bill imposes a  
          state-mandated local program.

           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  







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          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  
          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.:  Yes    
          Local:  Yes

           SUPPORT  :   (Verified  8/20/10)

          Screen Actors Guild
          The Paparazzi Reform Initiative


           ARGUMENTS IN SUPPORT  :    The author states:








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            "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  
            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  : 







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          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  8/22/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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