BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 1256 (Bloom)
As Amended May 27, 2014
Hearing Date: June 17, 2014
Fiscal: Yes
Urgency: No
RD
SUBJECT
Civil law: privacy: entry and exit of facilities
DESCRIPTION
This bill would revise existing statutory "invasion of privacy"
tort provisions to expand both physical and constructive
invasion of privacy torts to involve circumstances where any
physical impression is captured of the plaintiff's private
activities (and not just personal or familial activities).
The bill would enact a new civil liability statute based upon
the unlawful acts of any person, except a parent or guardian
acting toward his or her minor child, to: (1) by force, threat
of force, or physical obstruction that is a crime of violence,
intentionally injure, intimidate, interfere with, or attempt to
injure, intimidate, or interfere with any person attempting to
enter or exit specified facilities; or (2) by nonviolent
physical obstruction, intentionally injure, intimidate,
interfere with, or attempt to injure, intimidate, or interfere
with any person attempting to enter or exit a specified
facility. This bill would allow for both public and private
enforcement of these provisions.
BACKGROUND
In 1998, in response to the tragic death of Princess Diana,
California became the first state in the nation to pass
legislation to attempt to rein in overzealous and aggressive
photographers and reporters, known as "paparazzi." In order to
supplement the common law tort of invasion of privacy, the
Legislature created a statutory cause of action for "invasion of
(more)
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privacy" that imposes liability on any person who: (1) intrudes
upon the private space of another person; (2) in order to
capture images or recordings of that person engaging in a
personal or familial activity; (3) in a manner that is offensive
to a reasonable person. (Civ. Code Sec. 1708.8; SB 262 (Burton,
Ch. 1000, Stats. 1998).) The statute was subsequently amended
in 2005 to additionally provide that assault committed with
intent to photograph or record a person is subject to the same
remedies available for physical or constructive invasion of
privacy. (AB 381 (Montañez, Ch. 424, Stats. 2005).)
Despite the enactment of these statutory remedies, there
continued to be a flurry of news reports on the increasing
tension between celebrities and photographers, which at times
have escalated to the point of physical confrontations. In
response, in 2009, AB 524 (Bass, Ch. 449, Stats. 2009) was
enacted to expand the reach of the state's "invasion of privacy"
statute to include the sale, publication, or broadcast of a
physical impression of someone engaged in a personal or familial
activity if the person knows that the image was unlawfully
obtained. By attaching liability to publishers who use
paparazzi, the author hoped to remove the financial incentive
for paparazzi to continue pursuing and photographing
celebrities.
Most recently, AB 2479 (Bass, Ch. 685, Stats. 2010) was enacted
to further strengthen these "anti-paparazzi" laws by providing
that a person who commits "false imprisonment" with the intent
to capture any type of physical impression is subject to
liability under the civil invasion of privacy statute.
Separately, last year, a similar provision of law relating to
the taking of photographs of children of public figures, was
amended to clarify that misdemeanor harassment of a child
because of the employment of the child's parent or guardian
could include attempting to record the child's image or voice if
done in a harassing manner and to increase criminal penalties
and subject a person who commits misdemeanor harassment to civil
liability. (See SB 606 (De León, Ch. 348, Stats. 2013).)
This bill, sponsored by the Paparazzi Reform Initiative, would
now: (1) expand the application of the civil liability statutes
for physical and constructive invasion of privacy to situations
where the physical impression captured is of a private activity,
as opposed to personal or familial activities under existing
law; and (2) create new grounds for civil liability and allow
for public enforcement by the Attorney General or city or
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district attorney where any person attempts to or does injure,
intimidate, or interfere with a person attempting to enter or
exit a facility either by either force, threat of force, or
physical obstruction, or by nonviolent physical obstruction, as
specified.
CHANGES TO EXISTING LAW
Existing law makes it unlawful for any person to come into any
school building or upon any school ground, street, sidewalk, or
public way adjacent thereto, without lawful business thereon, if
his or her presence or acts interferes with the peaceful conduct
of the activities of the school or disrupt the school or its
pupils or school activities and if he or she:
remains there after being asked to leave by a specified
individual;
reenters or comes upon that place within seven days of being
asked to leave by a specified individual;
has otherwise established a continued pattern of unauthorized
entry; or
willfully or knowingly creates a disruption with the intent to
threaten the immediate physical safety of any pupil in
preschool, kindergarten, or any of grades 1 to 8, inclusive,
arriving at, attending, or leaving from school. (Pen. Code
Sec. 626.8(a).)
Existing law provides that the above provisions shall not be
utilized to impinge upon the lawful exercise of constitutionally
protected rights of speech or assembly. (Pen. Code Sec.
626.8(e).)
Existing common law recognizes four distinct categories of the
tort of "invasion of privacy:" (a) intrusion upon a plaintiff's
seclusion or solitude; (b) public disclosure of private facts;
(c) publicity that places the plaintiff in a "false light;" and
(d) appropriation of a plaintiff's likeness or image for the
defendant's advantage. (Turnbull v. American Broadcasting
Companies, (2004) 32 Media L. Rep. 2442.)
Existing law 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
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offensive to a reasonable person. (Civ. Code Sec. 1708.8(a).)
Existing law 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. (Civ. Code Sec. 1708.8(b).)
Existing law provides that "personal or familial activity"
includes, but is not limited to, intimate details of the
plaintiff's personal life, interactions with family or
significant others, or other aspects of the plaintiff's private
affairs or concerns. It does not include illegal or otherwise
criminal activity that is captured as a result of lawful
surveillance by law enforcement or other entities, public or
private, as specified, but does include the activities of
victims of crime in circumstances under which the physical or
constructive invasion of privacy provisions, or the assault or
false imprisonment provision of this section. (Civ. Code Sec.
1708.8(l).)
This bill would, instead, make a person liable for physical
invasion of privacy when the defendant knowingly enters onto the
land of another person without permission or otherwise committed
a trespass in order to capture any type of visual image, sound
recording, or other physical impression of the plaintiff
engaging in a private, personal, or familial activity and the
invasion occurs in a manner that is offensive to a reasonable
person.
This bill would, instead, make a person liable for constructive
invasion of privacy when the defendant attempts to capture, in a
manner that is offensive to a reasonable person, any type of
visual image, sound recording, or other physical impression of
the plaintiff engaging in a private, personal, or familial
activity, through the use of a visual or auditory enhancing
device, regardless of whether there is a physical trespass, if
this image, sound recording, or other physical impression could
not have been achieved without a trespass unless the visual or
auditory enhancing device was used. In doing so, the bill would
remove the requirement that the plaintiff have had a reasonable
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expectation of privacy.
This bill would expand upon the current definition of "personal
or familial activity" and, instead, provide that "private,
personal, or familial activity" includes, but is not limited to:
intimate details of the plaintiff's personal life under
circumstances in which the plaintiff has a reasonable
expectation of privacy;
interaction with the plaintiff's family or significant others
under circumstances in which the plaintiff has a reasonable
expectation of privacy;
if and only after the defendant has been convicted of
disruptive entry on school grounds without lawful business,
any activity that occurs when minors are present at any school
building or upon any school ground, street, sidewalk, or
public way adjacent thereto;
any activity that occurs on a residential property under
circumstances in which the plaintiff has a reasonable
expectation of privacy, including, but not limited to, a
private residence, temporary familial lodging, hotel, motel,
inn, and bed and breakfast; and
other aspects of the plaintiff's private affairs or concerns
under circumstances in which the plaintiff has a reasonable
expectation of privacy.
This bill would also provide that it is unlawful for any person,
except a parent or guardian acting toward his or her minor
child, to commit any of the following acts:
(1) by force, threat of force, or physical obstruction that is a
crime of violence, to intentionally injure, intimidate,
interfere with, or attempt to injure, intimidate, or interfere
with, any person attempting to enter or exit a facility; or
(2) by nonviolent physical obstruction, to intentionally injure,
intimidate, interfere with, or attempt to injure, intimidate, or
interfere with, any person attempting to enter or exit a
facility.
This bill would authorize a person aggrieved by a violation of
the above provision to bring a civil action to enjoin the
violation, seek compensatory and punitive damages or injunctive
relief, and the cost of suit and reasonable attorney's and
expert witness' fees. With respect to compensatory damages, the
plaintiff may elect, at any time prior to the rendering of a
final judgment, to recover, in lieu of actual damages, an award
of statutory damages, as specified.
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This bill would authorize the Attorney General, or a district or
city attorney to bring a civil action to enjoin a violation of
the above provision, for compensatory damages to persons or
entities aggrieved by the violation, and for the imposition of
specified civil penalties against each respondent, which can
vary depending upon whether the violation was by force, threat
of force or physical obstruction, or if it was by nonviolent
physical obstruction; and whether the violation was a second or
subsequent violation.
This bill would provide that these provisions shall not be
construed to:
impair the right to engage in any constitutionally protected
activity, including, but not limited to, speech, protest, or
assembly; or
restrict, inhibit, prevent, or bring a chilling effect upon
any actions by a person that are reasonable under the
circumstances to protect, secure, provide safety to, or
prevent illness in any child or adult in a facility.
This bill would provide that the adoption of this bill is an
exercise of the police power of the state for purposes of
protecting the health, safety, and welfare of the people of
California, and would require that the provisions be liberally
construed to effectuate that purpose.
This bill would define various terms for the purposes of this
new civil liability statute. For example:
"Facility" would be defined to mean any public or private
school grounds, as specified under the Penal Code; any health
facility, as defined under the Health and Safety Code; or any
lodging, including a private residence, hotel, temporary
lodging facility, inn, motel, bed and breakfast, or any other
location that provides permanent or temporary lodging to
persons.
"Intimidate" would be defined to mean to place a person in
reasonable apprehension of bodily harm to himself, herself, or
another person.
"Physical obstruction" would be defined to mean rendering
ingress to or egress from a facility impassable to another
person, or rendering passage to or from a facility
unreasonably difficult or hazardous to another person.
COMMENT
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1. Stated need for the bill
According to the author:
Minors on school grounds are increasingly subject to
intrusions into their personal lives occurring as a result of
unauthorized surveillance and photographing, causing them
mental and emotional anguish, impacting their ability to
develop their personalities during formative years and
impeding their abilities to focus on school activities.
Parents are powerless to prevent their children from being
photographed and their images sold as commodities to various
publications, and are powerless to ensure that their
children's time at school is not subject to the severe
distraction of persons engaged in surveillance and
photograph[ing] of the children. Similar instances have
occurred during very sensitive times when individuals are
attempting to seek personal medical treatment.
AB 1256 amends Section 1708.8 of the Civil Code to
particularly include within the definition of "personal and
familial activity" activities of minors occurring at private
and public schools, activities occurring at various medical
facilities, and activities occurring where a reasonable
expectation of privacy exists at other locations.
By explicitly including activities at such locations as
protectable within the definition of "personal and familial
activities[,"] AB 1256 seeks to deter intrusions occurring
during sensitive medical emergencies, and unauthorized
intrusions that commoditize the likeness of children while
they are at school.
AB 1256 also creates a new section to the Civil Code, Section
1708.9, to create buffer zones around entrances and exits at
specified facilities, including schools and medical
facilities, to prevent barriers and obstructions from impeding
ingress and egress to and from such facilities, and to prevent
the interruption of important and vital functions of such
facilities.
Given the importance of maintaining important facilities'
proper functionality, the proposed Section 1708.9 of the Civil
Code seeks to create buffer zones around entrances and exits
to such facilities to ensure that, for instance, ambulances
can move without unnecessary interference to and from
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emergencies.
Section 1708.9 particularly defines the obstructionist conduct
that would violate this section, and defines the particular
areas that require buffer zones, including certain areas
around schools and medical facilities. Moreover, actions
brought under this section could be initiated by the aggrieved
persons, or initiated by the Attorney General, district
attorneys, or city attorneys.
The person aggrieved could bring a civil action to enjoin
violations of this section, and for compensatory and punitive
damages, costs of suit and reasonable attorney's and expert
witness' fees. The plaintiff could also elect, regarding
compensatory damages, to forego actual damages and obtain
statutory damages in amounts ranging from $1,000 to $5,000 per
violation, depending on the conduct. Likewise, the Attorney
General, district attorneys, or city attorneys instituting an
action under this section could obtain fines for violations,
the amount depending on the number of violations.
2. Balancing the First Amendment and the right to privacy
Seeking to address paparazzi-related issues, this bill would
expand the existing physical and constructive invasions of
privacy statutes and expand the types of facilities for which
there are buffer zones enforced by civil liability.
First, existing physical and constructive invasion of privacy
civil liability statutes operate to generally protect
individuals from having physical impressions (such as photos or
sound recordings) taken of their personal or familial activities
either by physical trespass in a manner that is offensive to a
reasonable person, or through the use of audio or visual
enhancing devices, under circumstances in which a person had a
reasonable expectation of privacy and in a manner that is highly
offensive to a reasonable person.
This bill now seeks to expand the torts of physical and
constructive invasion of privacy to circumstances where any
physical impression is captured of the plaintiff's private
activities as well. "Private, personal, or familial activity"
would be defined under the bill to include not just intimate
details of the plaintiff's personal life under circumstances in
which the plaintiff has a reasonable expectation of privacy, or
interaction with the plaintiff's family or significant others
under circumstances in which the plaintiff has a reasonable
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expectation of privacy (which are consistent with the existing
definition of personal or familial activity), but also to
include:
if and only after the defendant has been convicted of
disruptive entry on school grounds without lawful business
under the Penal Code, any activity that occurs when minors are
present on any school ground, or street, sidewalk, or public
way adjacent thereto;
any activity that occurs on a residential property under
circumstances in which the plaintiff has a reasonable
expectation of privacy, including, but not limited to, a
private residence, temporary familial lodging, hotel, motel,
inn, and bed and breakfast; and,
other aspects of the plaintiff's private affairs or concerns
under circumstances in which the plaintiff has a reasonable
expectation of privacy.
Second, under existing law, the California Free Access to Clinic
and Church Entrances Act provides for "buffer zones" around
clinics and churches by prohibiting any person from
intentionally injuring, intimidating, or interfering with (or
attempting to do so) either by either force, threat of force, or
physical obstruction, or by nonviolent physical obstruction: (1)
any person or entity because that person or entity is a
reproductive health services client, provider, or assistant, or
may become or remain a reproductive health services client,
provider, or assistant; or (2) any person lawfully exercising or
seeking to exercise the First Amendment right of religious
freedom at a place of religious worship. (Pen. Code Sec.
423.2(a)-(d).) The Act authorizes both private and public
enforcement of its provisions and, in doing so, specifically
allows an individual to bring a civil action to enjoin the
violation, for compensatory and punitive damages, and for the
costs of suit and reasonable fees for attorneys and expert
witnesses, as specified. (Pen. Code Sec. 423.4(a)-(b).)
Notably, the Act also provides that it shall not be construed to
impair any constitutionally protected activity, or any activity
protected by the laws of California or of the United States of
America; or to create additional civil or criminal remedies or
to limit any existing civil or criminal remedies to redress an
activity that interferes with the exercise of any other rights
protected by the First Amendment to the United States
Constitution or of Article I of the California Constitution.
(Pen. Code Sec. 423.6(a), (e).)
The bill, tracking the Free Access to Clinic and Church
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Entrances Act, creates a buffer zone around other facilities,
which would be defined to mean any public or private school
grounds, or street, sidewalk, or public way adjacent thereto, as
specified; any health facility; or any lodging, including a
private residence, hotel, temporary lodging facility, inn,
motel, bed and breakfast, or any other location that provides
permanent or temporary lodging to persons. The bill would also
track the private and public enforcement provisions of the Free
Access to Clinic and Church Entrances Act.
3. First Amendment
Ultimately, this bill invokes one of the most complex areas of
constitutional law: the balance between an individual's right
to privacy, and the First Amendment's protection of truthful
publications of matters of public concern. For those who live
their lives in relative obscurity, the details of private lives
rarely, if ever, become matters of public concern. But when
persons voluntarily interject themselves into the public arena -
whether as politicians, movie stars, or professional athletes -
the line between what is private and what is a matter of public
concern can become increasingly blurred. Government power to
protect the privacy interests of citizens by penalizing
publication or authorizing causes of action for publication
typically is found to implicate First Amendment rights directly.
(See e.g. William Prosser, Law of Torts 117 4th ed. 1971.)
a. Strict scrutiny for interference with speech
The United States Supreme Court has held that civil liability
for speech, even in the context of private civil litigation,
is an interference with free speech and must meet First
Amendment scrutiny. (See New York Times v. Sullivan, (1964)
376 U.S. 254, 277 ("What a State may not constitutionally
bring about by means of a criminal statute is likewise beyond
the reach of its civil law ? The fear of damage awards ? may
be markedly more inhibiting than the fear of prosecution under
a criminal statute. ").) Thus, liability for common law torts
such as invasion of privacy must be consistent with First
Amendment standards. (See Florida Star v. B.J.F., (1989) 491
U.S. 524.)
While there appears to be a compelling governmental interest
in creating buffer zones around schools and health facilities
where the danger to children and the broader public seeking
(potentially emergency) medical assistance, the expanded
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liability provisions described above would apply to other
facilities such as hotels, inns, and bed and breakfasts which
the nexus between the potential dangers to non-public figures
and the location are less obvious. While the presence of
paparazzi could feasibly create an inconvenience in those
situations for other hotel guests or even for the public
figure him or herself, those places are public places where
the expectation of privacy is reduced outside of private
bedrooms, and without a sufficiently compelling governmental
interest to create a buffer zone or civil liability for
otherwise protected activity, this bill could run afoul of the
First Amendment. To avoid such issues, the following
amendments are suggested to remove the provisions of the bill
expanding application of the invasion of privacy statute and
the proposed buffer zone statute to all forms of lodging,
temporary or otherwise:
Suggested Amendment :
On page 6, lines 24-28, amend the bill to read instead: (D)
Any activity that occurs on a residential property under
circumstances in which the plaintiff has a reasonable
expectation of privacy , including, but not limited to, a
private residence, temporary familial lodging, hotel,
motel, inn, and bed and breakfast .
On page 7, at the end of line 32, insert "or" and on line
34, strike ", or any lodging, including a private
residence, hotel," and strike lines 35-37, inclusive.
b. Newspersons and First Amendment
Under the First Amendment, newspersons are generally accorded
a constitutional privilege that protects their right to seek
out information. (See Nicholson v. McClatchy Newspapers,
(1986) 177 Cal.App.3d 509, 519 (while reporters are not
privileged to commit crimes and independent torts in gathering
the news, the newsgathering component of the freedom of the
press is privileged to the extent that it involves routine
reporting techniques).) This privilege prohibits the
imposition of civil liability based on the acts of reporters
in gathering the news through routine reporting techniques
such as asking questions, or the publishing of truthful,
newsworthy information in its possession. (Id.) However,
despite the constitutional privilege for newsgathering, the
press has no recognized constitutional privilege to violate
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generally applicable laws in pursuit of news material. (Cohen
v. Cowles Media Co. (1991) 501 U.S. 663, 669-670.)
AB 1256, while laudable in its goals, could potentially have
the effect of deterring the reporting of matters of genuine
public importance or concern simply by potentially exposing
reporters to increased liability and penalties during the
newsgathering process. If the press could prove in a specific
instance that the application of AB 1256 significantly burdens
its ability to function, a court could arguably determine,
depending on the specific facts of the case, that the law,
while facially constitutional, is unconstitutional as applied.
Conversely, a court may also find that a reporter's methods
of newsgathering are not routine reporting techniques that are
protected by the First Amendment. These determinations will
undoubtedly turn on the intricacies and facts of the various
scenarios that may occur.
To address potential constitutionality issues, this bill would
provide that these provisions shall not be construed to impair
the right to engage in any constitutionally protected
activity, including, but not limited to, speech, protest, or
assembly. The bill would also provide that this bill shall
not be construed to restrict, inhibit, prevent, or bring a
chilling effect upon any actions by a person that are
reasonable under the circumstances to protect, secure, provide
safety to, or prevent illness in any child or adult in a
facility.
4. Long line of attempts to address the "paparazzi problem"
Since Civil Code Section 1708.8 was first enacted in 1998 in
response to the tragic death of Princess Diana, the Legislature
has been asked to revisit this issue at numerous times to
strengthen or broaden the scope of this law. (See Background.)
The fact that the paparazzi activity has arguably only increased
over the years, begs the question of the ability of this statute
to curb the bad actors who do not respect the private space or
activities of public figures. The difficulty here is not
necessarily due wholly to the constitutional restraints placed
on government action. The question of whether the problems that
this bill seeks to address can ever be adequately legislated
against hinges in part on the underlying realities that feed
this photograph frenzy as a result of living in a free
society-namely, a well-established market for these types of
photographs.
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That being said, where the interests and the activities of a
free society create dangers to children and to the public in
specific scenarios, there is an argument that the government can
and should address those dangers in a narrow fashion. The author
references, by way of example, situations of crowds preventing
ambulances from exiting and/or entering the hospital in the
immediate aftermath of reports that Michael Jackson had died and
was taken to a hospital, as well as a situation in which
paparazzi reportedly jeopardized Britney Spears' entrance to a
hospital, ultimately requiring a police escort to move her
through the paparazzi hordes at a reported cost of $25,000 to
Los Angeles taxpayers. As a matter of public policy, the
protection of children who neither asked to be in the public
light, or who just happen to go to school with children who have
parents in the public light, is a compelling governmental
interest that this legislature has previously attempted to
advance by enacting buffer zone laws into the Penal Code
surrounding schools.
5. Opposition arguments
The California Broadcasters Association (CBA) writes in
opposition to this bill, and a related bill, AB 1356 (Bloom,
2014) that "the presumption of these bills is that we need
another new law to protect the personal and family activities of
celebrities and other powerful people being hounded by
unscrupulous profiteers. The Legislature used the identical
presumption when it recently passed SB 606 [De León, Ch. 348,
Stats. 2013]. Rather than wait to see if this new law provides
any 'relief[,'] we are back considering two bills that will
contribute more confusion than clarity." CBA urges the
Committee to consider that the bill applies to everyone and
targets not only a potential victim's private property, but
potentially all property-regardless of whether it is private or
public:
Invasion of privacy has always been measured against whether a
person had a reasonable expectation of privacy in a location
or activity. This has required a fact-based inquiry and
analysis about intrusion into seclusion. [ . . . ] AB 1256
redefines and muddies the relationship of right to privacy and
public space.
This bill moves to codify public places that may carry a
presumption of privacy. This creates a number of potential
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problems. For example, the bill addresses activities at "any
lodging[,"] both permanent and temporary. Obviously, a hotel
room may be private, but under what conditions does the lobby,
restaurant or parking lot becomes so? Does covering a story
about music lovers camping out in line for concert tickets
trigger the bill's provisions? How about taking pictures of a
CalTrans crew sleeping in their cab? An investigative report
about tired truckers? All could involve an exit or entry from
"temporary lodging."
[ . . . ] Past legislation targeting the paparazzi has failed
to change real world behavior-perhaps because the afflicted
have failed to utilize them. Why aren't existing assault,
batter, stalking, nuisance and paparazzi laws sufficient to
achieve the goals of AB 1256 and AB 1356?
The CBA also warns that inevitably, "[j]ournalists will obey the
new laws despite the First Amendment costs; the few bad actors
will proceed with business as usual." In general agreement
with the CBA's assessment, the California Newspaper Publishers
Association (CNPA), also in opposition to this bill, writes:
The term "private, personal or familial activity," describes
the plaintiff's behavior at the moment the defendant attempts
to capture an image or recording. Whatever these words mean,
the plaintiff must be engaged in it at the creation of the
tort. The bill, though, in its new definition of the term,
appears to create extreme tort liability even when plaintiffs
are engaged in the most mundane, routine or trivial
activities, occurring almost anyplace. The bill would create
extreme tort liability for taking pictures of anyone - not
just the rich and famous -- in public places like restaurants,
hotels and schools.
When placed in this context, the bill would move the law from
an ostensible invasion of privacy tort to an image control
tool, allowing celebrities to control the dissemination of
unplanned and potentially unflattering images through the
threat of litigation.
In the 13 years since enactment of the law, CNPA is unaware of
any plaintiff who has successfully sued under the law. In
other words, we are unaware of a plaintiff successfully
proving by a preponderance of the evidence the many elements
of this complicated tort.
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Instead of determining the law an abject failure, the
Legislature appears poised to again try to fix it by adding
more words and complexity. We fear the result will be a law
no one can understand and one in which diligent people will
not be able to determine how to do their job of gathering news
in a manner that avoids legal exposure. Meanwhile, the
societal ill the law intends to correct - out of control
paparazzi - continues unabated.
Likewise, the new [S]ection 1708.9 in the bill appears to be
an attempt to create a floating bubble around subjects of
news. CNPA is concerned the bill, as currently drafted, will
do nothing more than encourage and sanction nuisance lawsuits
by disgruntled subjects of news photographs and that the bill
will not deter the extreme and often dangerous conduct in
which an increasingly large contingent of paparazzi engage.
The National Press Photographers Association (NPPA), also in
opposition, states that it believes the changes to the civil
cause of action for invasion of privacy by AB 1256 are overly
broad and vague and impose greater civil penalties upon
otherwise protected forms of speech and expression. "We are
also concerned that the remedies for invasion of privacy and
trespass are already properly addressed by current California
statutes and that statutory and punitive damages will further
chill free speech and create uncertainty about liability." The
NPPA adds that the "statutory and punitive damages in the bill
[under the buffer zone-related provisions of the bill] will
further chill free speech and create uncertainty about
liability. Additionally, the [existing] definition of
'commercial purposes' fails to distinguish those acts done for
valid newsgathering purposes and in fact penalizes publishers
and broadcasters along with visual journalists and members of
the public with a camera."
Staff notes that the suggested amendment in Comment 3a above
would avoid the potential blurring of private versus public
property for purposes of invasion of privacy liability.
Support : None Known
Opposition : California Broadcasters Association; California
Newspaper Publishers Association; National Press Photographers
Association
AB 1256 (Bloom)
Page 16 of ?
HISTORY
Source : Paparazzi Reform Initiative
Related Pending Legislation :
AB 2306 (Chau, 2014) would provide that the use of any device,
as opposed to a visual or auditory enhancing device, is
sufficient for the purposes of a constructive invasion of
privacy. This bill was approved by this Committee on June 10,
2017 on a vote of 7-0.
AB 1356 (Bloom, 2014) would amend the existing statute that
creates the civil tort of "stalking" to include within the
definition of "stalking" a pattern of conduct that is intended
to place another person under "surveillance," as defined. This
bill is currently awaiting hearing in this Committee.
Prior Legislation :
SB 606 (De León, Ch. 348, Stats. 2013) See Background.
AB 2479 (Bass, Ch. 685, Stats. 2010) See Background.
AB 524 (Bass, Ch. 449, Stats. 2009) See Background.
AB 381 (Montanez, Ch. 424, Stats. 2005) See Background.
SB 262 (Burton, Ch. 1000, Stats. 1998) See Background.
Prior Vote :
Assembly Floor (Ayes 53, Noes 19)
Assembly Appropriations Committee (Ayes 12, Noes 4)
Assembly Judiciary Committee (Ayes 8, Noes 1)
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