BILL NUMBER: SB 262 CHAPTERED
BILL TEXT
CHAPTER 1000
FILED WITH SECRETARY OF STATE SEPTEMBER 30, 1998
APPROVED BY GOVERNOR SEPTEMBER 29, 1998
PASSED THE SENATE AUGUST 27, 1998
PASSED THE ASSEMBLY AUGUST 24, 1998
AMENDED IN ASSEMBLY AUGUST 20, 1998
AMENDED IN ASSEMBLY AUGUST 18, 1998
AMENDED IN ASSEMBLY AUGUST 10, 1998
AMENDED IN ASSEMBLY JULY 23, 1998
AMENDED IN ASSEMBLY JUNE 1, 1998
AMENDED IN ASSEMBLY MARCH 26, 1998
INTRODUCED BY Senator Burton
(Principal coauthor: Senator Calderon)
(Coauthor: Senator McPherson)
(Coauthors: Assembly Members Woods, Battin, Kaloogian, Knox,
Kuehl, and Thomson)
FEBRUARY 5, 1997
An act to add Section 1708.8 to the Civil Code, relating to
privacy.
LEGISLATIVE COUNSEL'S DIGEST
SB 262, Burton. Damages.
Existing law provides that any person who knowingly uses another's
name, voice, signature, photograph, or likeness, in any manner, on
or in products, merchandise, or goods, or for purposes of advertising
or selling, or soliciting purchases of, products, merchandise, goods
or services, without that person's prior consent, or, in the case of
a minor, the prior consent of his or her parent or legal guardian,
is liable for any damages sustained by the person or persons injured
as a result thereof. Existing law provides that, in addition, the
person who violated these provisions is liable to the injured party
or parties in an amount equal to the greater of $750 or the actual
damages suffered by him or her as a result of the unauthorized use,
and any profits from the unauthorized use that are attributable to
the use and are not taken into account in computing the actual
damages.
This bill would provide that a person is liable, as specified, for
a physical invasion of privacy when the defendant knowingly
committed an act of 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, as specified,
and the physical invasion occurs in a manner that is offensive to a
reasonable person. The bill would also provide that a person is
liable, as specified, for a constructive invasion of privacy when the
defendant attempted 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 a visual or
auditory device if the image, recording, or other physical impression
could not have been captured without an act of trespass unless a
visual or auditory enhancing device was used.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1708.8 is added to the Civil Code, to read:
1708.8. (a) A person is liable for physical invasion of privacy
when the defendant knowingly enters onto the land of another 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 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.
(c) A person who commits physical invasion of privacy or
constructive invasion of privacy, or both, 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.
(d) A person who directs, solicits, actually induces, or actually
causes another person, regardless of whether there is an
employer-employee relationship, to violate subdivision (a) or (b) or
both is liable for any general, special, and consequential damages
resulting from each said violation. In addition, the person that
directs, solicits, instigates, induces, or otherwise 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.
(e) Sale, transmission, publication, broadcast, or use of any
image or recording of the type, or under the circumstances, described
in this section shall not itself constitute a violation of this
section, nor shall this section be construed to limit all other
rights or remedies of plaintiff in law or equity, including, but not
limited to, the publication of private facts.
(f) 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, the suspected
violation of any administrative rule or regulation, a suspected
fraudulent insurance claim, or any other suspected fraudulent conduct
or activity involving a violation of law or pattern of business
practices adversely affecting the public health or safety.
(g) 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) or
(b).
(h) The rights and remedies provided in this section are
cumulative and in addition to any other rights and remedies provided
by law.
(i) It is not a defense to a violation of this section that no
image, recording, or physical impression was captured or sold.
(j) 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.
(k) 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 plaintiff's private
affairs or concerns. Personal and familial activity does not include
illegal or otherwise criminal activity as delineated in subdivision
(f). However, "personal and familial activity" shall include the
activities of victims of crime in circumstances where either
subdivision (a) or (b), or both, would apply.
(l) 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.