BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1256|
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THIRD READING
Bill No: AB 1256
Author: Bloom (D)
Amended: 6/24/14 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-1, 6/17/14
AYES: Jackson, Corbett, Lara, Leno, Monning
NOES: Vidak
NO VOTE RECORDED: Anderson
SENATE APPROPRIATIONS COMMITTEE : 5-1, 8/14/14
AYES: De León, Hill, Lara, Padilla, Steinberg
NOES: Gaines
NO VOTE RECORDED: Walters
ASSEMBLY FLOOR : 53-19, 1/29/14 - See last page for vote
SUBJECT : Civil law: privacy
SOURCE : Paparazzi Reform Initiative
DIGEST : This bill revises 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. It also enacts a new civil liability statute based
upon the unlawful acts of any person, except a parent or
guardian acting toward his/her minor child.
ANALYSIS : Existing law makes it unlawful for any person to
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come into any school building or upon any school ground, street,
sidewalk, or public way adjacent thereto, without lawful
business thereon, if his/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/she:
1.Remains there after being asked to leave by a specified
individual;
2.Reenters or comes upon that place within seven days of being
asked to leave by a specified individual;
3.Has otherwise established a continued pattern of unauthorized
entry; or
4.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.
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.
Existing common law recognizes 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.
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
offensive to a reasonable person.
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
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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.
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.
This bill:
1.Makes 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.
2.Makes 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. Removes the requirement that the
plaintiff have had a reasonable expectation of privacy.
3.Expands upon the current definition of "personal or familial
activity" and, instead, provide that "private, personal, or
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familial activity" includes, but is not limited to:
A. Intimate details of the plaintiff's personal life under
circumstances in which the plaintiff has a reasonable
expectation of privacy;
B. Interaction with the plaintiff's family or significant
others under circumstances in which the plaintiff has a
reasonable expectation of privacy;
C. 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;
D. Any activity that occurs on a residential property under
circumstances in which the plaintiff has a reasonable
expectation of privacy; and
E. Other aspects of the plaintiff's private affairs or
concerns under circumstances in which the plaintiff has a
reasonable expectation of privacy.
1.Provides that it is unlawful for any person, except a parent
or guardian acting toward his/her minor child, to commit any
of the following acts:
A. 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
B. 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.
1.Authorizes a person aggrieved by a violation of its provisions
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
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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.
2.Authorizes 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.
3.Provides that its provisions shall not be construed to:
A. Impair the right to engage in any constitutionally
protected activity, including, but not limited to, speech,
protest, or assembly; or
B. 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.
1.Provides that its adoption 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 requires that the
provisions be liberally construed to effectuate that purpose.
2.Defines various terms for the purposes of this new civil
liability statute.
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
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
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personal or familial activity; (3) in a manner that is offensive
to a reasonable person. (SB 262, Burton, Chapter 1000, Statutes
of 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, Chapter 424, Statutes of 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, Chapter 449, Statutes of 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, Chapter 685, Statutes of 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. (SB 606 (De León, Chapter 348, Statutes of 2013))
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
Potential minor state trial court costs to the extent this
bill results in additional civil proceedings.
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Non-reimbursable local costs for prosecution by district or
city attorneys, offset to a degree by penalty revenues.
Potential future cost pressure in excess of $150,000 (General
Fund) to the Department of Justice to evaluate complaints,
investigate allegations, and pursue new causes of action,
offset to a degree by penalty revenues.
SUPPORT : (Verified 8/14/14)
Paparazzi Reform Initiative (source)
OPPOSITION : (Verified 8/14/14)
California Broadcasters Association
California Newspaper Publishers Association
National Press Photographers Association
ARGUMENTS IN SUPPORT : 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."
ARGUMENTS IN OPPOSITION : The California Broadcasters
Association writes "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."
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ASSEMBLY FLOOR : 53-19, 1/29/14
AYES: Alejo, Ammiano, Atkins, Bloom, Bocanegra, Bonilla, Bonta,
Bradford, Buchanan, Ian Calderon, Campos, Chau, Chesbro,
Cooley, Dababneh, Daly, Dickinson, Eggman, Fong, Fox, Frazier,
Garcia, Gatto, Gomez, Gonzalez, Gordon, Roger Hernández,
Holden, Jones-Sawyer, Levine, Lowenthal, Maienschein, Medina,
Mullin, Muratsuchi, Nazarian, Pan, V. Manuel Pérez, Quirk,
Quirk-Silva, Rendon, Ridley-Thomas, Rodriguez, Salas, Skinner,
Stone, Ting, Weber, Wieckowski, Wilk, Williams, Yamada, John
A. Pérez
NOES: Allen, Bigelow, Chávez, Conway, Dahle, Donnelly, Beth
Gaines, Gray, Grove, Hagman, Harkey, Jones, Linder, Mansoor,
Melendez, Morrell, Nestande, Olsen, Wagner
NO VOTE RECORDED: Achadjian, Brown, Gorell, Hall, Logue,
Patterson, Perea, Waldron
AL:k 8/15/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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