Amended in Senate August 22, 2014

Amended in Assembly March 28, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2306

Introduced by Assembly begin delete Member end delete begin insert Members end insert Chau begin insert and Waldron end insert

begin insert

(Coauthor: Senator Jackson)

end insert

February 21, 2014

An act to amend Section 1708.8 of the Civil Code, relating to privacy.

LEGISLATIVE COUNSEL’S DIGEST

AB 2306, as amended, Chau. Constructive invasion of privacy: liability.

Under existing law, except as specified, a person is liable for constructive invasion of privacy when a person attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression, through the use of a visual or auditory enhancing device, of another person engaging in a personal or familial activity under circumstances in which the other person had a reasonable expectation of privacy. Existing law subjects a person who commits a constructive invasion of privacy to specified damages and civil fines.

This bill would expand a person’s potential liability for constructive invasion of privacy, by removing the limitation that the person use a visual or auditory enhancing device, and would instead make the person liable when using any device to engage in the above-described unlawful activity.

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This bill would incorporate additional changes to Section 1708.8 of the Civil Code proposed by AB 1256 that would become operative if this bill and AB 1256 are both enacted and this bill is enacted last.

end insert

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1708.8 of the Civil Code is amended to
read:

1708.8.  

(a) A person is 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 physically invade the privacy of the plaintiff with the
intent to capture any type of visual image, sound recording, or
other physical impression of the plaintiff engaging in a personal
or familial activity and the physical invasion occurs in a manner
that is offensive to a reasonable person.

(b) A person is 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 personal
or familial activity under circumstances in which the plaintiff had
a reasonable expectation of privacy, through the use of any 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 device was used.

(c) An assault or false imprisonment committed with the intent
to capture any type of visual image, sound recording, or other
physical impression of the plaintiff is subject to subdivisions (d),
(e), and (h).

(d) A person who commits any act described in subdivision (a),
(b), or (c) is liable for up to three times the amount of any general
and special damages that are proximately caused by the violation
of this section. This person may also be liable for punitive damages,
subject to proof according to Section 3294. If the plaintiff proves
that the invasion of privacy was committed for a commercial
purpose, the defendant shall also be subject to disgorgement to the
plaintiff of any proceeds or other consideration obtained as a result
of the violation of this section. A person who comes within the
description of this subdivision is also subject to a civil fine of not
less than five thousand dollars ($5,000) and not more than fifty
thousand dollars ($50,000).

(e) A person who directs, solicits, actually induces, or actually
causes another person, regardless of whether there is an
employer-employee relationship, to violate any provision of
subdivision (a), (b), or (c) is liable for any general, special, and
consequential damages resulting from each said violation. In
addition, the person that directs, solicits, actually induces, or
actually causes another person, regardless of whether there is an
employer-employee relationship, to violate this section shall be
liable for punitive damages to the extent that an employer would
be subject to punitive damages pursuant to subdivision (b) of
Section 3294. A person who comes within the description of this
subdivision is also subject to a civil fine of not less than five
thousand dollars ($5,000) and not more than fifty thousand dollars
($50,000).

(f) (1) The transmission, publication, broadcast, sale, offer for
sale, or other use of any visual image, sound recording, or other
physical impression that was taken or captured in violation of
subdivision (a), (b), or (c) shall not constitute a violation of this
section unless the person, in the first transaction following the
taking or capture of the visual image, sound recording, or other
physical impression, publicly transmitted, published, broadcast,
begin delete sold end delete begin insert sold, end insert or offered for begin delete sale, end delete begin insert sale end insert the visual image, sound
recording, or other physical impression with actual knowledge that
it was taken or captured in violation of subdivision (a), (b), or (c),
and begin delete provide end delete begin insert provided end insert compensation, consideration, or
remuneration, monetary or otherwise, for the rights to the
unlawfully obtained visual image, sound recording, or other
physical impression.

(2) For the purposes of paragraph (1), “actual knowledge” means
actual awareness, understanding, and recognition, obtained prior
to the time at which the person purchased or acquired the visual
image, sound recording, or other physical impression, that the
visual image, sound recording, or other physical impression was
taken or captured in violation of subdivision (a), (b), or (c). The
plaintiff shall establish actual knowledge by clear and convincing
evidence.

(3) Any person that publicly transmits, publishes, broadcasts,
begin delete sells end delete begin insert sells, end insert or offers for sale, in any form, medium, begin delete format end delete begin insert format, end insert
or work, a visual image, sound recording, or other physical
impression that was previously publicly transmitted, published,
broadcast, begin delete sold end delete begin insert sold, end insert or offered for begin delete sale, end delete begin insert sale end insert by another person, is
exempt from liability under this section.

(4) If a person’s first public transmission, publication, broadcast,
or sale or offer for begin delete sale, end delete begin insert sale end insert of a visual image, sound recording,
or other physical impression that was taken or captured in violation
of subdivision (a), (b), or begin delete (c), end delete begin insert (c) end insert does not constitute a violation of
this section, that person’s subsequent public transmission,
publication, broadcast, begin delete sale end delete begin insert sale, end insert or offer for sale, in any form,
medium, begin delete format end delete begin insert format, end insert or work, of the visual image, sound
recording, or other physical impression, does not constitute a
violation of this section.

(5) This section applies only to a visual image, sound recording,
or other physical impression that is captured or taken in California
in violation of subdivision (a), (b), or (c) after January 1, 2010,
and shall not apply to any visual image, sound recording, or other
physical impression taken or captured outside of California.

(6) Nothing in this subdivision shall be construed to impair or
limit a special motion to strike pursuant to Section 425.16, 425.17,
or 425.18 of the Code of Civil Procedure.

(7) This section shall not be construed to limit all other rights
or remedies of the plaintiff in law or equity, including, but not
limited to, the publication of private facts.

(g) This section shall not be construed to impair or limit any
otherwise lawful activities of law enforcement personnel or
employees of governmental agencies or other entities, either public
or private who, in the course and scope of their employment, and
supported by an articulable suspicion, attempt to capture any type
of visual image, sound recording, or other physical impression of
a person during an investigation, surveillance, or monitoring of
any conduct to obtain evidence of suspected illegal activity or
other misconduct, the suspected violation of any administrative
rule or regulation, a suspected fraudulent conduct, or any activity
involving a violation of law or business practices or conduct of
public officials adversely affecting the public welfare, begin delete health end delete
begin insert health, end insert or safety.

(h) In any action pursuant to this section, the court may grant
equitable relief, including, but not limited to, an injunction and
restraining order against further violations of subdivision (a), (b),
or (c).

(i) The rights and remedies provided in this section are
cumulative and in addition to any other rights and remedies
provided by law.

(j) It is not a defense to a violation of this section that no image,
recording, or physical impression was captured or sold.

(k) For the purposes of this section, “for a commercial purpose”
means any act done with the expectation of a sale, financial gain,
or other consideration. A visual image, sound recording, or other
physical impression shall not be found to have been, or intended
to have begin delete been end delete begin insert been, end insert captured for a commercial purpose unless it is
intended to be, or was in fact, sold, published, or transmitted.

(l) For the purposes of this section, “personal and familial
activity” includes, but is not limited to, intimate details of the
plaintiff’s personal life, interactions with the plaintiff’s family or
significant others, or other aspects of the plaintiff’s private affairs
or concerns. “Personal and familial activity” does not include
illegal or otherwise criminal activity as delineated in subdivision
(g). However, “personal and familial activity” shall include the
activities of victims of crime in circumstances under which
subdivision (a), (b), or (c) would apply.

(m) (1) A proceeding to recover the civil fines specified in
subdivision (d) or (e) may be brought in any court of competent
jurisdiction by a county counsel or city attorney.

(2) Fines collected pursuant to this subdivision shall be allocated,
as follows:

(A) One-half shall be allocated to the prosecuting agency.

(B) One-half shall be deposited in the Arts and Entertainment
Fund, which is hereby created in the State Treasury.

(3) Funds in the Arts and Entertainment Fund created pursuant
to paragraph (2) may be expended by the California Arts Council,
upon appropriation by the Legislature, to issue grants pursuant to
the Dixon-Zenovich-Maddy California Arts Act of 1975 (Chapter
9 (commencing with Section 8750) of Division 1 of Title 2 of the
Government Code).

(4) The rights and remedies provided in this subdivision are
cumulative and in addition to any other rights and remedies
provided by law.

(n) The provisions of this section are severable. If any provision
of this section or its application is held invalid, that invalidity shall
not affect other provisions or applications that can be given effect
without the invalid provision or application.

begin insert

begin insert SEC. 1.5. end insert   

end insert

begin insert Section 1708.8 of the end insert begin insert Civil Code end insert begin insert is amended to read: end insert

1708.8.  

(a) A person is 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 begin delete physically invade the privacy of the plaintiff with the
intent to end delete capture any type of visual image, sound recording, or
other physical impression of the plaintiff engaging in a begin delete personal end delete begin insert end insert
begin insert private, personal, end insert or familial activity and the begin delete physical end delete invasion
occurs in a manner that is offensive to a reasonable person.

(b) A person is 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 begin delete personal
or familial activity under circumstances in which the plaintiff had
a reasonable expectation of privacy, end delete begin insert private, personal, or familial
activity, end insert through the use of begin delete a visual or auditory enhancing end delete begin insert any end insert
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 begin delete visual or auditory
enhancing end delete device was used.

(c) An assault or false imprisonment committed with the intent
to capture any type of visual image, sound recording, or other
physical impression of the plaintiff is subject to subdivisions (d),
(e), and (h).

(d) A person who commits any act described in subdivision (a),
(b), or (c) is liable for up to three times the amount of any general
and special damages that are proximately caused by the violation
of this section. This person may also be liable for punitive damages,
subject to proof according to Section 3294. If the plaintiff proves
that the invasion of privacy was committed for a commercial
purpose, the defendant shall also be subject to disgorgement to the
plaintiff of any proceeds or other consideration obtained as a result
of the violation of this section. A person who comes within the
description of this subdivision is also subject to a civil fine of not
less than five thousand dollars ($5,000) and not more than fifty
thousand dollars ($50,000).

(e) A person who directs, solicits, actually induces, or actually
causes another person, regardless of whether there is an
employer-employee relationship, to violate any provision of
subdivision (a), (b), or (c) is liable for any general, special, and
consequential damages resulting from each said violation. In
addition, the person that directs, solicits, actually induces, or
actually causes another person, regardless of whether there is an
employer-employee relationship, to violate this section shall be
liable for punitive damages to the extent that an employer would
be subject to punitive damages pursuant to subdivision (b) of
Section 3294. A person who comes within the description of this
subdivision is also subject to a civil fine of not less than five
thousand dollars ($5,000) and not more than fifty thousand dollars
($50,000).

(f) (1) The transmission, publication, broadcast, sale, offer for
sale, or other use of any visual image, sound recording, or other
physical impression that was taken or captured in violation of
subdivision (a), (b), or (c) shall not constitute a violation of this
section unless the person, in the first transaction following the
taking or capture of the visual image, sound recording, or other
physical impression, publicly transmitted, published, broadcast,
begin delete sold end delete begin insert sold, end insert or offered for begin delete sale, end delete begin insert sale end insert the visual image, sound
recording, or other physical impression with actual knowledge that
it was taken or captured in violation of subdivision (a), (b), or (c),
and begin delete provide end delete begin insert provided end insert compensation, consideration, or
remuneration, monetary or otherwise, for the rights to the
unlawfully obtained visual image, sound recording, or other
physical impression.

(2) For the purposes of paragraph (1), “actual knowledge” means
actual awareness, understanding, and recognition, obtained prior
to the time at which the person purchased or acquired the visual
image, sound recording, or other physical impression, that the
visual image, sound recording, or other physical impression was
taken or captured in violation of subdivision (a), (b), or (c). The
plaintiff shall establish actual knowledge by clear and convincing
evidence.

(3) Any person that publicly transmits, publishes, broadcasts,
begin delete sells end delete begin insert sells, end insert or offers for sale, in any form, medium, begin delete format end delete begin insert format, end insert
or work, a visual image, sound recording, or other physical
impression that was previously publicly transmitted, published,
broadcast, begin delete sold end delete begin insert sold, end insert or offered for begin delete sale, end delete begin insert sale end insert by another person, is
exempt from liability under this section.

(4) If a person’s first public transmission, publication, broadcast,
or sale or offer for begin delete sale, end delete begin insert sale end insert of a visual image, sound recording,
or other physical impression that was taken or captured in violation
of subdivision (a), (b), or begin delete (c), end delete begin insert (c) end insert does not constitute a violation of
this section, that person’s subsequent public transmission,
publication, broadcast, begin delete sale end delete begin insert sale, end insert or offer for sale, in any form,
medium, begin delete format end delete begin insert format, end insert or work, of the visual image, sound
recording, or other physical impression, does not constitute a
violation of this section.

(5) This section applies only to a visual image, sound recording,
or other physical impression that is captured or taken in California
in violation of subdivision (a), (b), or (c) after January 1, 2010,
and shall not apply to any visual image, sound recording, or other
physical impression taken or captured outside of California.

(6) Nothing in this subdivision shall be construed to impair or
limit a special motion to strike pursuant to Section 425.16, 425.17,
or 425.18 of the Code of Civil Procedure.

(7) This section shall not be construed to limit all other rights
or remedies of the plaintiff in law or equity, including, but not
limited to, the publication of private facts.

(g) This section shall not be construed to impair or limit any
otherwise lawful activities of law enforcement personnel or
employees of governmental agencies or other entities, either public
or private who, in the course and scope of their employment, and
supported by an articulable suspicion, attempt to capture any type
of visual image, sound recording, or other physical impression of
a person during an investigation, surveillance, or monitoring of
any conduct to obtain evidence of suspected illegal activity or
other misconduct, the suspected violation of any administrative
rule or regulation, a suspected fraudulent conduct, or any activity
involving a violation of law or business practices or conduct of
public officials adversely affecting the public welfare, begin delete health end delete
begin insert health, end insert or safety.

(h) In any action pursuant to this section, the court may grant
equitable relief, including, but not limited to, an injunction and
restraining order against further violations of subdivision (a), (b),
or (c).

(i) The rights and remedies provided in this section are
cumulative and in addition to any other rights and remedies
provided by law.

(j) It is not a defense to a violation of this section that no image,
recording, or physical impression was captured or sold.

(k) For the purposes of this section, “for a commercial purpose”
means any act done with the expectation of a sale, financial gain,
or other consideration. A visual image, sound recording, or other
physical impression shall not be found to have been, or intended
to have begin delete been end delete begin insert been, end insert captured for a commercial purpose unless it is
intended to be, or was in fact, sold, published, or transmitted.

begin insert

(l) (1) For the purposes of this section, “private, personal, and
familial activity” includes, but is not limited to:

end insert begin insert

(A) Intimate details of the plaintiff’s personal life under
circumstances in which the plaintiff has a reasonable expectation
of privacy.

end insert begin insert

(B) Interaction with the plaintiff’s family or significant others
under circumstances in which the plaintiff has a reasonable
expectation of privacy.

end insert begin insert

(C) If and only after the defendant has been convicted of
violating Section 626.8 of the Penal Code, any activity that occurs
when minors are present at any location set forth in subdivision
(a) of Section 626.8 of the Penal Code.

end insert begin insert

(D) Any activity that occurs on a residential property under
circumstances in which the plaintiff has a reasonable expectation
of privacy.

end insert begin insert

(E) Other aspects of the plaintiff’s private affairs or concerns
under circumstances in which the plaintiff has a reasonable
expectation of privacy.

end insert begin delete

(l)  For the purposes of this section, “personal

end delete

begin insert (2) end insert begin insert   end insert begin insert “Private, personal, end insert and familial activity” begin delete includes, but is
not limited to, intimate details of the plaintiff’s personal life,
interactions with the plaintiff’s family or significant others, or
other aspects of the plaintiff’s private affairs or concerns. “Personal
and familial activity” end delete does not include illegal or otherwise criminal
activity as delineated in subdivision (g). However, begin delete “personal end delete
begin insert “private, personal, end insert and familial activity” shall include the activities
of victims of crime in circumstances under which subdivision (a),
(b), or (c) would apply.

(m) (1) A proceeding to recover the civil fines specified in
subdivision (d) or (e) may be brought in any court of competent
jurisdiction by a county counsel or city attorney.

(2) Fines collected pursuant to this subdivision shall be allocated,
as follows:

(A) One-half shall be allocated to the prosecuting agency.

(B) One-half shall be deposited in the Arts and Entertainment
Fund, which is hereby created in the State Treasury.

(3) Funds in the Arts and Entertainment Fund created pursuant
to paragraph (2) may be expended by the California Arts Council,
upon appropriation by the Legislature, to issue grants pursuant to
the Dixon-Zenovich-Maddy California Arts Act of 1975 (Chapter
9 (commencing with Section 8750) of Division 1 of Title 2 of the
Government Code).

(4) The rights and remedies provided in this subdivision are
cumulative and in addition to any other rights and remedies
provided by law.

(n) The provisions of this section are severable. If any provision
of this section or its application is held invalid, that invalidity shall
not affect other provisions or applications that can be given effect
without the invalid provision or application.

begin insert

begin insert SEC. 2. end insert   

end insert begin insert

Section 1.5 of this bill incorporates amendments to
Section 1708.8 of the Civil Code proposed by both this bill and
AB 1256. It shall only become operative if (1) both bills are enacted
and become effective on or before January 1, 2015, (2) each bill
amends Section 1708.8 of the Civil Code, and (3) this bill is enacted
after AB 1256, in which case Section 1 of this bill shall not become
operative.

end insert