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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           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 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  : 








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          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.  

          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 only 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 to capture images and recordings of celebrities and  
          their families in order to satiate a public that clamors for the  








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          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. 


          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 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  








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          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 of between a county of jail for a period from  
          five to 90 days, or some combination of 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. 
           

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



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