BILL ANALYSIS Ó
AB 856
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB
856 (Calderon)
As Amended July 2, 2015
Majority vote
--------------------------------------------------------------------
|ASSEMBLY: | 78-0 | (May 14, |SENATE: |40-0 | (August 24, |
| | |2015) | | |2015) |
| | | | | | |
| | | | | | |
--------------------------------------------------------------------
Original Committee Reference: JUD.
SUMMARY: Expands the scope of the cause of action in existing
law for the physical invasion of privacy. Specifically, this
bill:
1)Provides that a person is liable for physical invasion of
privacy when the defendant knowingly enters "into the
airspace" above the land of another person without permission.
2)Requires that the entry must be made 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.
AB 856
Page 2
The Senate amendments make a non-substantive change of the term
"defendant" to the term "person" and add Senator Jackson as the
principal co-author.
EXISTING LAW:
1)Provides that a person is generally liable for the physical
invasion of the privacy of another person when he or she
knowingly enters onto the land of that other person without
permission in order 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.
2)Provides that a person is liable for constructive invasion of
the privacy of another person when he or she 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 that other person engaging in a private,
personal, or familial activity, through the use of any device
if the image, sound recording, or other physical impression
could not have been achieved without the device, regardless of
whether there is a physical trespass.
3)Provides that a person who commits either physical or
constructive invasion of privacy 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.
4)Provides that a person who commits either physical or
constructive invasion of privacy may also be liable for
punitive damages, subject to proof according to Civil Code
Section 3294.
5)Provides that 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
AB 856
Page 3
violation of privacy.
6)Provides that a person who commits either physical or
constructive invasion of privacy is also subject to a civil
fine of not less than $5,000 and not more than $50,000.
7)Provides that a person who directs, solicits, actually
induces, or actually causes another person, regardless of
whether there is an employer-employee relationship, to commit
either physical or constructive invasion of privacy is liable
for any general, special, and consequential damages resulting
from each said violation, as well as punitive damages to the
extent that an employer would be subject to punitive damages
pursuant to Civil Code Section 3294 (b).
8)Provides that a person who directs, solicits, actually
induces, or actually causes another person, regardless of
whether there is an employer-employee relationship, to commit
either physical or constructive invasion of privacy is also
subject to a civil fine of not less than $5,000 and not more
than $50,000.
FISCAL EFFECT: None
COMMENTS: Property rights in California include rights to the
"free or occupied space [above the property] for an indefinite
distance upwards as well as downwards, subject to limitations
upon the use of airspace imposed, and rights in the use of
airspace granted, by law." The right to the airspace above this
state is vested in the owners of the land below, but is subject
to both the state doctrine of overflight and federal
regulations. (Drennen v. County of Ventura (1974) 38 Cal.App.3d
84, 87, citing Public Utilities Code (PUC) Section 21402, Civil
Code Section 659.) The doctrine of overflight provides that
"Flight in aircraft over the land of another is lawful unless at
altitudes below those prescribed by federal authority, or unless
so conducted as to be imminently dangerous to persons or
AB 856
Page 4
property lawfully on the land." (Id., citing PUC Section
21403(a).)
The zone of personally-controlled airspace above real property
is lower near airports because the statutory right of flight in
aircraft includes the right of aircraft to safely access the
zone of approach of any public airport without restriction or
hazard. (PUC Section 21403(c), Drennen v. County of Ventura, 38
Cal.App.3d at p. 87.) Federal law defines navigable airspace to
include "airspace needed to insure safety in take-off and
landing of aircraft." (49 United States Code 1301 (24).) The
owner does not control and therefore cannot necessarily be
protected from observations made from places outside that zone
of airspace where the public has the right of access - either on
land (i.e. from a hill overlooking the property), water (i.e.
from a boat on public waters adjacent to the property) or in the
air (i.e. from a helicopter or plane traveling in navigable
airspace above the property), unless those observations are made
under circumstances that amount to "constructive" invasion of
privacy. "To prove actionable intrusion, the plaintiff must
show the defendant penetrated some zone of physical or sensory
privacy surrounding, or obtained unwanted access to data about,
the plaintiff. The tort is proven only if the plaintiff had an
objectively reasonable expectation of seclusion or solitude in
the place, conversation or data source [citations omitted]."
(Shulman v. Group W Productions, Inc., supra, 18 Cal.4th at pp.
231-232.)
This bill is drafted narrowly, only applying when there is an
entry into the airspace over another person's land and the
entry: 1) is made knowingly, 2) is made without permission, 3)
is made for the specific intent of capturing a visual image,
sound recording, or other physical impression of another person
who is engaging in a private, personal, or familial activity,
and 4) occurs in a manner that is offensive to a reasonable
person. Given the narrow scope of this bill - especially the
requirement that the person enter the airspace for the purpose
of capturing images or recordings of another person engaged in a
AB 856
Page 5
private, personal, or familial activity - the right of the
public to document the coast and other public places will be
protected, even when a photograph happens to include an image of
private property, and individual or individuals, and even
private activities that are visible from the air that are
occasionally and inadvertently captured in such photos.
It should be stressed, as well, that simple physical entry into
"the airspace above the land of another person" would not create
liability under this bill. All of the other existing elements
of the statute would still have to be met: the entry must be
knowing and without permission; the entry must be made for the
purpose of capturing an image, recording, or impression of
another person who is engaging in a private, personal, or
familial activity; and the entry must occur in a manner that is
offensive to a reasonable person.
Analysis Prepared by:
Alison Merrilees / JUD. / (916) 319-2334 FN:
0001315