BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2479
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          Date of Hearing:   August 30, 2010

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                     AB 2479 (Bass) - As Amended:  August 20, 2010

                                   FOR CONCURRENCE
           
          SUBJECT  :  invasion of privacy: false imprisonment: reckless  
          driving 

           KEY ISSUES  :  

          1)Should a person who commits "false imprisonment" with the  
            intent to capture a visual image, sound recording, or other  
            physical impression of another person be liable for the full  
            range of CIVIL damages available under the civil invasion  
            privacy statute?

          2)Should a person who engages in reckless driving while  
            attempting to capture a visual image, sound recording, or  
            other physical impression of another person be subject to  
            heightened penalties? 

                                      SYNOPSIS

          According to the author, this bill is a response to the  
          intrusive and sometimes recklessly dangerous conduct of  
          paparazzi when they are attempting to capture photographs, sound  
          recordings, or other physical impressions of celebrities for  
          commercial gain.  The bill seeks to deter this behavior in two  
          ways: first, by making "false imprisonment," which includes  
          surrounding another person or persons without leaving any means  
          of escape, subject to the heightened civil damages available  
          under the invasion of privacy statute; second, by subjecting  
          persons who engage in reckless driving while attempting to  
          capture an image or recording of another person to heightened  
          fines and penalties.  According to the author, these heightened  
          civil and criminal penalties are aimed as the especially  
          virulent paparazzi who chase celebrities along public streets  
          and highways and sometimes even surround stars and their  
          families so that they have no possible means of escape.  The  
          bill is supported by the Paparazzi Reform Initiative and opposed  
          by the California Newspaper Publishers Association, which claims  
          that the bill will have unintended consequences for mainstream  








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          media and that it unfairly singles out journalists for  
          heightened penalties. 

           SUMMARY  :  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.  Provides  
          further that a person who engages in reckless driving while  
          attempting to capture a visual image or other impression of  
          another person will be subject to heightened penalties.   
          Specifically  this bill  provides that:

          1)A person who commits the tort of "false imprisonment" is  
            liable for the same general, special, and punitive damages as  
            is a person who commits the tort of physical or constructive  
            invasion of privacy.

          2)Any person who engages in specified forms of reckless driving,  
            including interfering with another driver and following  
            another vehicle too closely, while attempting to capture any  
            type of visual image, sound recording, or other physical  
            impression of another person for a commercial purpose is  
            guilty of a misdemeanor punished by imprisonment of not more  
            than six months and by a fine of not more than $2,500.   
            Provides that a person who engages in such acts in a manner  
            that endangers a child or children shall be punished by  
            imprisonment of not more than one year and by a fine of not  
            more than $5,000. 

           The Senate amendments  add the heightened penalties for reckless  
          driving with intent to capture the visual image, sound  
          recording, or other physical impression of another person. 
           
          EXISTING LAW  : 

          1)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.  








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          2)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.  

          3)Provides that a person who commits an assault with the intent  
            to capture any type of visual image, sound recording, or other  
            physical impression of the plaintiff is subject to the same  
            damages as is a person who commits a physical or constructive  
            invasion of privacy.  These damages include treble the amount  
            of any general or special damages and punitive damages.  

          4)Provides that a person who engages in reckless driving shall  
            be punished by imprisonment in a county jail for not less than  
            five days or more than 90 days or by a fine of not less than  
            $145 or more than $1,000, or by both fine and imprisonment. 

           FISCAL EFFECT  :  Unknown 

           AS PASSED BY THE ASSEMBLY  , this bill contained the provision  
          relating to false imprisonment.
           
          COMMENTS  :  The bill amends California's civil invasion of  
          privacy statute to impose liability for "false imprisonment"  
          when committed with the intent to capture a visual image, sound  
          recording, or other physical impression of the plaintiff.  As  
          with AB 524 (Bass), Chapter 499, Statutes of 2009, this bill is  
          primarily an effort to curb the often aggressive tactics used by  
          paparazzi when attempting to capture images and recordings of  
          celebrities and their families. 

          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  








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          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 attempted to codify a combination of  
          categories #2) and #4), intrusion and appropriation, generally  
          known as the "invasion of privacy" statute.  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.  However, the statute 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.  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, including  
          treble general and special damages, punitive damages, and other  
          forms of relief.


          The bill does not define "false imprisonment," but presumably it  
          would have the same meaning that it has at common law:  that is,  
          the intentional infliction of "confinement," with confinement  
          defined as restricting a person to a confined physical space  
          without any path of escape.  Generally, the plaintiff must be  
          aware that he or she is confined.  This provision is 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 is not generally  
          considered a form of "invasion of privacy," though, like  
          invasion of privacy, it is an intentional tort that is  
          actionable in its own right.  Incorporating these independent  
          torts into the codification of the "invasion of privacy" tort  
          conflates what are in fact distinct torts, which makes its  
          placement in this statute potentially a bit confusing.  However,  
          the rationale for adding "false imprisonment" to the invasion of  
          privacy statute is apparently the same as the justification for  
          adding "assault" to this same statute in 2005: so that the  
          plaintiff bringing a civil action for assault or false  
          imprisonment will be entitled to the treble damages, punitive  
          damages, and other forms or relief provided for in the invasion  
          of privacy statute. 

           Senate amendments  :  Existing law, under the Vehicle Code,  
          prohibits interfering with the driver of another vehicle in a  
          manner that affects the driver's control of the vehicle or  








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          following another vehicle too closely.  In addition, existing  
          law provides that a person that engages in reckless driving -  
          defined as willful and wanton disregard for the safety of others  
          - shall be subject to a fine of between $145 and $1,000, or  
          imprisonment in a county jail for a period from five to 90 days,  
          or some combination of a fine and imprisonment.  As amended in  
          the Senate this bill would make such violations a misdemeanor,  
          subject to heightened fines and periods of imprisonment, if the  
          person commits the violations while attempting to capture a  
          visual image, sound recording, or other physical impression of  
          another person.  Specifically, a person who commits such a  
          violation would be subject to imprisonment in county jail for  
          not more than six months and a fine of not more than $2,500.  A  
          person who commits this violation in a manner that endangers a  
          child or children is subject to imprisonment of not more than  
          one year and a fine of not more than $5,000.  

           ARGUMENTS IN SUPPORT  :  According to the author, this bill is  
          intended to curb the reckless and dangerous lengths that  
          paparazzi will sometimes go in order to capture the image of  
          celebrities.  Of particular concern is the practice of  
          surrounding a celebrity or the celebrity's vehicle in a manner  
          that does not permit an avenue of escape.  In addition,  
          paparazzi have allegedly engaged in dangerous and high-speed  
          chases on the public highways in their efforts to capture  
          photographs.  The author contends that this kind of behavior is  
          especially a problem in Los Angeles, with its high concentration  
          of stars and celebrities. 

           ARGUMENTS IN OPPOSITION  :  The California Newspaper Publishers  
          Association (CNPA) opposes this bill.  First, CNPA notes that  
          even though this bill is intended to target the most egregious  
          acts of the paparazzi, "it will [nonetheless] create the  
          potential for extreme criminal penalties for members of the  
          mainstream press in transit to any number of emergency scenes or  
          any scene in which news is happening."  Although mainstream news  
          teams traveling as quickly as possible to breaking news events  
          may not be seeking to capture an image of "another person" for a  
          "commercial purpose" in the manner that gives rise to this bill,  
          it is nonetheless possible that such activity could be construed  
          to include a legitimate news gathering team.  Whether or not the  
          author intends to cover this kind of activity, the language in  
          this bill will have a "chilling effect."  Second, CNPA contends  
          that this bill unfairly singles out journalists.  CNPA believes  
          that an employee of a newspaper, like any other citizen, should  








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          be punished for reckless driving, but journalists should not be  
          subject to extreme penalties and liabilities just because they  
          are attempting to capture an image. 

          REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Paparazzi Reform Initiative 

           Opposition 
           
          California Newspaper Publishers Association 
           
          Analysis Prepared by  :    Thomas Clark / JUD. / (916) 319-2334