BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 2479| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 SENATE PUBLIC SAFETY COMMITTEE : 5-2, 8/24/10 AYES: Leno, Cedillo, Hancock, Steinberg, Wright NOES: Cogdill, Huff 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. CONTINUED AB 2479 Page 2 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 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 CONTINUED AB 2479 Page 3 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 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) CONTINUED AB 2479 Page 4 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. 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), CONTINUED AB 2479 Page 5 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 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 CONTINUED AB 2479 Page 6 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 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 CONTINUED AB 2479 Page 7 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 8/25/10 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED