BILL ANALYSIS AB 2479 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 2479 (Bass) As Amended August 20, 2010 Majority vote ----------------------------------------------------------------- |ASSEMBLY: |56-16|(June 3, 2010) |SENATE: |21-13|(August 27, | | | | | | |2010) | ----------------------------------------------------------------- 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 Page 2 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 AB 2479 Page 3 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 AB 2479 Page 4 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