BILL ANALYSIS AB 2479 Page 1 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 AB 2479 Page 2 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. AB 2479 Page 3 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 AB 2479 Page 4 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 AB 2479 Page 5 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 AB 2479 Page 6 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