BILL ANALYSIS
AB 2479
Page 1
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 :
AB 2479
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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
FN: 0006766