BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1256| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 1256 Author: Bloom (D) Amended: 8/22/14 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. Senate Floor Amendments of 8/22/14 add double-jointing language CONTINUED AB 1256 Page 2 to avoid chaptering out conflicts with AB 2306 (Chau). ANALYSIS : 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/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 CONTINUED AB 1256 Page 3 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. 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 CONTINUED AB 1256 Page 4 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 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. CONTINUED AB 1256 Page 5 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 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. 3. Contains double-jointing language to avoid chaptering out issues with AB 2306 (Chau). Background CONTINUED AB 1256 Page 6 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 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)) CONTINUED AB 1256 Page 7 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. 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 8/25/14) Paparazzi Reform Initiative (source) OPPOSITION : (Verified 8/25/14) 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 CONTINUED AB 1256 Page 8 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." 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 8/25/14 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED