BILL ANALYSIS                                                                                                                                                                                                    




         AB 2479
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        CONCURRENCE IN SENATE AMENDMENTS
        AB 2479 (Bass)
        As Amended August 20, 2010
        Majority vote 
         
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        |ASSEMBLY:  |56-16|(June 3, 2010)  |SENATE: |21-13|(August 27,    |
        |           |     |                |        |     |2010)          |
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        |COMMITTEE VOTE:  |7-3  |(August 30, 2010)   |RECOMMENDATION: | concur   |
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        Original Committee Reference:    JUD.  

         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. 










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         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.  

        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  
          treble 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.
         









        AB 2479
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        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 to capture  
        images and recordings of celebrities and their families in order to  
        satiate a public that clamors for the intimate details of the lives  
        of Hollywood stars. 

        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 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  









         AB 2479
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        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 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 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 such a manner  
        that affects the driver's control of the vehicle or following  
        another vehicle too closely.  In addition, existing law provides  
        that a person, who 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 committing these 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.  

        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. 
         










        AB 2479
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        Analysis Prepared by  :    Thomas Clark / JUD. / (916) 319-2334 



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