BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                    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  
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          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  

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          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  

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             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.


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           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
           

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          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))

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           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  

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          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

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