Amended in Senate July 2, 2015

Amended in Assembly April 9, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 856

Introduced by Assembly Member Calderon

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(Principal coauthor: Senator Jackson)

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February 26, 2015

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

LEGISLATIVE COUNSEL’S DIGEST

AB 856, as amended, Calderon. Invasion of privacy.

Under existing law, except as specified, a person is liable for physical invasion of privacy when that person knowingly enters onto the land of another person without permission or otherwise trespasses to capture any type of visual image, sound recording, or other physical impression of a person engaging in a private, personal, or familial activity and the invasion occurs in a manner that is offensive to a reasonable person. Under existing law, a person is liable for constructive invasion of privacy for the same activity, as specified, through the use of any device, regardless of whether there is a physical trespass. Existing law subjects a person who commits physical or constructive invasion of privacy to specified damages and civil fines.

This bill would expand liability for physical invasion of privacy to additionally include a person knowingly entering into the airspace above the land of another person without permission, as provided.

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 begin delete defendant end delete begin insert person end insert knowingly enters onto the land or into
the airspace above the land of another person without permission
or otherwise commits 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.

(b) A person is liable for constructive invasion of privacy when
the begin delete defendant end delete begin insert person end insert 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 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 begin delete defendant end delete begin insert person end insert 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,
sold, or offered for sale 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 provided
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,
sells, or offers for sale, in any form, medium, format, or work, a
visual image, sound recording, or other physical impression that
was previously publicly transmitted, published, broadcast, sold,
or offered for sale 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 sale of a visual image, sound recording, or other
physical impression that was taken or captured in violation of
subdivision (a), (b), or (c) does not constitute a violation of this
section, that person’s subsequent public transmission, publication,
broadcast, sale, or offer for sale, in any form, medium, format, 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, health, 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 been, captured for a commercial purpose unless it is
intended to be, or was in fact, sold, published, or transmitted.

(l) (1) For the purposes of this section, “private, personal, and
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 begin delete defendant end delete begin insert person end insert 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.

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

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

(2) “Private, personal, and familial activity” does not include
illegal or otherwise criminal activity as delineated in subdivision
(g). However, “private, 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.