BILL ANALYSIS
AB 524
Page 1
Date of Hearing: May 12, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 524 (Bass) - As Amended: April 29, 2009
SUBJECT : Invasion of privacy
KEY ISSUE : Should a person who has actual knowledge that an
image or recording was obtained in violation of the state's
"invasion of privacy" statute, also be considered to be in
violation of that statute?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This important privacy protection measure seeks to strengthen
existing legal law designed to thwart privacy invasions that can
cause great harm to many Californians. In response to the 1998
death of Princess Diana, and other reports of overzealous
paparazzi endangering celebrities and those around them, the
Legislature created a statutory cause of action for "invasion of
privacy" to supplement the common law tort of invasion of
privacy, and the tort of "intrusion" in particular. The
statutory cause of action for "physical invasion of privacy"
covers the knowing entry onto the land of another, or invasion
of another place where a person has a reasonable expectation of
privacy, in order to capture an image or recording of that
person engaged in a "personal or familial" activity. In
addition, the statute creates a cause of action for
"constructive invasion of property" where the image or recording
is captured from a distance by means of technologically enhanced
equipment, where the image or recording could not otherwise have
been captured without trespassing on the private space of the
subject. Currently, this statutory action only applies to the
person who actually captures the image or recording. It does
not apply to a person or entity - such as a newspaper or
Internet Web site - that did not directly participate in the act
of capturing the image or recording, but then subsequently
publishes or broadcasts the potentially illegally obtained image
or recording. Indeed, existing law expressly states that the
subsequent sale, transmission, publication, broadcast, or use of
the image or recording "shall not itself constitute a violation"
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of the statute, even though a plaintiff can still bring an
action against the publisher on common law theories, such as
public disclosure of a private fact or "false light." This bill
seeks to broaden the reach of the state's "invasion of privacy"
statute to include a person who sells, transmits, or publishes
the image if that person has "actual knowledge the images or
recordings were obtain illegally."
SUMMARY : Seeks to provide greater protection to the privacy
interests of all Californians by amending existing law so that a
person who sells, transmits, publishes, or broadcasts an image,
recording, or physical impression of someone engaged in a
personal or familial activity violates the state's "invasion of
privacy" statute if that person, even though not the one
actually capturing the image, recording, or impression, has
actual knowledge that the image, recording, or impression was
unlawfully obtained. Specifically, this bill :
1)Provides that sale, transmission, broadcast, or use of any
image or recording that was obtained in violation of
California's existing invasion of privacy statute, relating to
unreasonable and offensive intrusions into personal and
familial matters, constitutes a violation of the statute if
the person selling, transmitting, broadcasting, or using the
image or recording has actual knowledge the images or
recordings were obtained illegally.
2)Makes legislative findings and declarations as to the problem
of photographers, videographers, and audio recorders
harassing, invading the privacy interest, and sometimes even
physically endangering individuals and their families in order
to capture images and recordings for commercial purposes.
Finds and declares further that the right of a free press to
report details of an individual's private life must be weighed
against the rights of the individual to enjoy liberty and
privacy.
EXISTING LAW :
1)Recognizes, under the common law, four distinct categories of
the tort of "invasion of privacy:" (a) intrusion upon a
plaintiff's seclusion or solitude; (b) public disclosure of
private facts; (c) publicity that places the plaintiff in a
"false light," and (d) appropriation of a plaintiff's likeness
or image for the defendant's advantage. (Turnbull v. ABC,
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2004 U.S. Dist. LEXIS 24351.)
2)Identifies the required elements of a tort of "intrusion" as
(a) intrusion into a private place, conversation, or matter;
and (b) in a manner highly offensive to a reasonable person.
(Id.)
3)Makes it a crime to eavesdrop upon or record a confidential
communication, intentionally and without the consent of all
parties, by means of an electronic amplifying or recording
device. Makes the offense punishable by a fine not exceeding
$2,500, or imprisonment in the county jail not exceeding one
year. Further provides that a person who violates this
provision may also be liable in a civil action by a person
injured by the violation. (Penal Code Sections 632 and
637.2.)
4)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. (Civil Code Section 1708.8
(a).)
5)Makes a person liable for "constructive invasion of 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.
(Civil Code Section 1708.8 (b).)
6)For purposes of the above provisions, defines "personal or
familial activity" as including, but 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. (Civil Code Section
1708.8 (l).)
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7)Specifies that for purposes of the above provisions, the sale,
transmission, publication, broadcast, or use of any image or
recording shall not itself constitute a violation of the
statute, but neither shall anything in the statute be
construed to limit any other rights or remedies that a
plaintiff may have in law and equity. (Civil Code Section
1708.8 (f).)
8)Specifies that an assault committed with the intent to capture
any type of visual image, sounding recording, or other
physical impression is subject to enhanced statutory penalties
and remedies prescribed. (Civil Code Section 1708.8 (c).)
9)Provides that a person who violates the statute for a
commercial purpose shall, in additional to any other damages
or remedies provided, be subject to disgorgement to the
plaintiff or any proceeds or other consideration obtained as a
result of the violation of this section. Defines "commercial
purpose" to mean any act done with the expectation of sale,
financial gain, or other consideration. (Civil Code Section
1708.8 (d) and (k).)
10)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
a violation of the statute, is liable for any general,
special, and consequential damages resulting from each
violation. (Civil Code Section 1708.8 (e).)
11)Generally exempts from the statute any 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
articuable suspicion, attempt to capture any type of visual
image, sound recording, or other physical impression as part
of an investigation, surveillance, or monitoring of any
conduct in order to obtain evidence of suspected unlawful or
fraudulent activity or any pattern of practices that affect
public health and safety. (Civil Code Section 1708.8 (g).)
COMMENTS : This important privacy protection bill seeks to deter
the most egregious activities of so-called "paparazzi" by
cutting off at the source the financial incentives that often
presumably drive the worst and sometimes extremely dangerous
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behavior. Existing law creates 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, and (3) in a manner that is
offensive to a reasonable person. However, while existing law
makes the actual capture , or attempted capture, of the image or
recording a violation, the statute currently expressly states
that the selling, transmitting, publishing, or broadcasting of
the image or recording is not, by itself, a violation - unless
the person publishing the image or recording has actually
solicited or directed the culprit to violate the statute. This
bill has been introduced by the Speaker to strengthen the
privacy rights of all Californians by amending California's
existing "invasion of privacy" by making liable any person who
sells, publishes, or broadcasts the image or recording, if that
person has "actual knowledge the images or recordings were
obtained illegally." In short, existing law potentially imposes
liability on a publisher of such potentially illegally-gotten
material to the extent that the publisher may have solicited
another to violate the law. However the violation is for the
act of solicited or directing, not for the act of publishing per
se . Under this bill, whether or not a publisher played any role
in soliciting or directing unlawful obtaining of the image or
recording, the publisher still would be potentially liable for
publishing or broadcasting the image or recording if it had
actual knowledge it had been unlawfully obtained. This is an
important and strong change in the law, because, according to
most reports, paparazzi work independently of the direction of
the newspapers or other media that might publish or broadcast
their work product. Indeed, the paparazzi typically sell their
product after the violation has been committed.
Background : In response to the tragic death of Princess Diana
in 1998, and other reports of outrageously overzealous paparazzi
endangering celebrities and members of the public, the
Legislature created a statutory cause of action for "invasion of
privacy" to supplement the common law tort of invasion of
privacy, and the tort of "intrusion" in particular. Despite
harsh criticisms in the wake of Diana's death, and the enactment
of the invasion of privacy statute, "paparazzi" have nonetheless
continued to hunt down, and sometimes even place in serious
physical danger, celebrities and the public at large. Recent
years have seen a flurry of news reports on the increasing
tension between celebrities and photographers, which at times
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have escalated to the point of physical confrontations and, in
some cases, even harassment of celebrities' children and
friends.
Defenders of the paparazzi - the numbers anecdotally appear to
be dwindling - claim that the problem is not the paparazzi, as
such, but some in the public's appetite to learn about even the
most mundane details of the celebrities' lives. Others who
defend the ways of the paparazzi claim some of the celebrities
themselves "want the best of worlds," seeking out the cameras
when they want to bask in the limelight, and smashing those same
cameras on the ground when they find them annoying. One
admittedly biased executive of a paparazzi news agency claimed:
"When a celebrity is going from the C-list to the A-list, they
set up the pictures," he said. "But as soon as they achieve
A-list status, they become artists who don't want publicity."
But as the author notes, the issue here is not whether the
paparazzi are responding to demand, or whether celebrities have
a more complex relationship with photographers than their
complaints might suggest. Rather, the author notes that the
conduct of the paparazzi too often goes way beyond reasonable
efforts to take pictures of celebrities in public places, to
include intrusive and sometimes highly offensive harassment that
not only invades personal and familial privacy but, at times,
seriously endangers the public at large.
While the author recognizes that this bill implicates a
sensitive balance between the competing rights of privacy and
free speech, the bill's findings and declarations accurately
state that there is no right, under either the state or federal
constitutions, "to persistently follow or chase another in a
manner that creates a reasonable fear of bodily injury, or to
trespass, or to constructively trespass through the use of
intrusive visual or auditory enhancement." And while this
measure recognizes the right of news media to gather and report
the news, it nonetheless appropriately finds and declares that
"the right of a free press to report details of an individual's
private life must be weighed against the rights of the
individual to enjoy liberty and privacy."
Constitutional Issues: The Delicate Tension Between the First
Amendment and the Right to Privacy. This important measure
touches the core of one of the most complex areas of
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constitutional law: the delicate tension between the
individual's right to privacy, including the right to prevent
disclosure of private facts, and the First Amendment that
protects anyone's uninhibited right to publish truthful
information about a matter of public concern. For those of us
who live our lives in relative obscurity, the details of our
private lives rarely if ever become matters of public concern
(assuming all goes well). But when persons voluntarily
interject themselves into the public arena - whether as
politicians, movie stars, or professional athletes - the line
between what is truly private and what is a matter of public
concern can become quite fuzzy. For example, if Manny Ramirez
were not a professional baseball player, whether or not he
knowingly took steroids would not typically be a matter of
public concern that the press would have a right, or even an
interest, in reporting.
AB 524 And the First Amendment : A long list of cases and
scholarly articles has commented on the tension between laws
that punish the disclosure of private facts - whether on the
basis of statute or common law - and the right to publish
truthful information on a matter of public concern. In short,
government power to protect the privacy interests of citizens by
penalizing publication or authorizing causes of action for
publication typically if found to implicate First Amendment
rights directly. (See e.g. William Prosser, Law of Torts 117
4th ed. 1971.)
Existing Case Law : Although the tension between privacy rights
and the First Amendment has generated a substantial body of case
law, three cases in particular (two by federal courts and one by
the California Supreme Court) appear to directly bear upon the
potential First Amendment issues raised by AB 524: in
particular, whether the state can "punish" the publication of
material that was unlawfully obtained by some other party.
These cases and their potential relevance for AB 524 are
discussed below.
Shulman v. Group W. Productions (1998) 18 Cal 4th 200. In
Shulman, decided by the California Supreme Court, the defendants
filmed the rescue of Ruth Shulman, who had been seriously
injured when her car overturned. The film crew then equipped a
nurse on board a rescue helicopter with a microphone, recording
her conversation with the patient while en route to the
hospital. The film and recordings were later broadcast as a
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nine-minute segment on a documentary television show called "On
Scene: Emergency Response." Ms. Shulman sued the producers of
the TV show alleging both (1) an invasion of privacy based on
"intrusion" (the filming and recording), and (2) public
disclosure of private facts, for the subsequent broadcast. The
California Supreme Court upheld Ms. Shulman's claim for
"intrusion." The Court was not entirely persuaded that the
filming of the accident, which occurred in a public place, met
the elements of the tort of intrusion. However, the recording
of the conversation between the nurse and the patient, the Court
found, could meet the elements of the tort of intrusion, since
the court held Ms. Shulman had a reasonable expectation that,
once in the confines of the helicopter, her conversation with
the attending nurse would not surreptitiously be recorded.
However, as to the subsequent broadcasting of the film and tape,
the Court balanced the "competing" interest of Ms. Shulman's
privacy rights and the defendant's right to broadcast truthful,
"newsworthy" information.
On the "intrusion" claim, the Supreme Court found that a jury
could find that the filming, and especially the recording while
on the helicopter, was "highly offensive to a reasonable
person," and therefore overturned the trial court's summary
judgment in favor of the defendants. The Court based its
decision in part on a finding that the "act" of newsgathering,
while not irrelevant to a First Amendment analysis, was not the
same as publishing the results of the newsgathering. Thus, our
Supreme Court appeared to find in the Shulman case the state can
constitutionally punish acts of newsgathering as intrusions upon
privacy without offending the First Amendment, depending upon
the degree of offensiveness of the newsgathering technique and
the newsworthiness of the subject matter. However, as to the
broadcasting of the incident, the Court found that the details
of the rescue were, as a matter of law, of legitimate public
concern and substantially related to the newsworthy subject of
the piece. "In short," the Court concluded, "the state may not
intrude into the proper sphere of the news media to dictate what
they should publish and broadcast, but neither may the media
play tyrant to the people by unlawfully spying on them in the
name of newsgathering ." (Emphasis added.)
Turnbull v. ABC (2004) 2004 U.S. Dict. LEXIS 24351 . The
distinction that Shulman makes between newsgathering (that is,
the actual intrusion that captures the image or recording) and
publication is also important in Turnbull v. ABC, another case
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appearing on point in evaluating the constitutionality of the
measure. Turnbull was a 2004 decision by the federal U.S.
District for the Central District of California. In that case,
a team affiliated with ABC's "20/20" program surreptitiously
records voices and images of plaintiffs (who were aspiring
actors) in connection with a story about actors who "buy" their
way into movie roles. The plaintiffs brought several causes of
action alleging various privacy torts, including an action under
Civil Code Section 1708.8, the provision this bill seeks to
expand. In Turnbull, the court considered the more narrow
question of whether the conduct engaged in by reporters (i.e.
illegally recording conversations) was protected by the First
Amendment, on the grounds that they were gathering newsworthy
information. The Court concluded clearly, and potentially
helpfully regarding any future constitutional attack brought
against this bill, that " the First Amendment does not provide
shelter from tortuous and criminal conduct " and that "it is
beyond dispute that the publisher of a newspaper has no special
immunity from the application of general laws." (Id. Citing
Cohen v. Cowles Media (1991) 501 U.S. 663, 699. Emphasis
added.) In particular, the Court noted that the act of
intrusion itself does not raise First Amendment difficulties
since it does not involve speech or other expression. Rather,
"it occurs by virtue of the physical and mechanical observation
of the private affairs of another, and not by the publication of
such observations ." (Id. Citing Time, Inc. v. Hill 1967) 385
U.S. 374, 389. Emphasis added.)
Like Shulman, the Turnbull holding reiterates that unlawful news
gathering is not protected by the First Amendment. However,
these cases also suggest that any publication of the
information, even if unlawfully gathered, typically does
implicate the First Amendment. In its existing form, Civil Code
Section 1708.8 appears to be well within these key cases'
reasoning, since the current statute punishes the intrusive
attempt to "capture" images and recordings, but expressly states
the publishing or broadcasting of such information is not in
itself a violation. By punishing publishing, AB 524 would,
under these cases, appear to implicate the First Amendment. But
this is not at all to say that the bill would necessarily, on
its face, violate the First Amendment, as the discussion of the
following case of the troika further demonstrates.
Bartnicki v. Vopper (2001) 532 U.S. 514 . The Bartnicki case
involved a review of a federal statute that appears to be in
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many ways quite similar to AB 524. Specifically, Bartnicki
considered the validity of a provision of the federal Omnibus
Crime Control Act of 1986. Section 2511(1)(a) of Title 18 of
U.S. Code essentially an anti-eavesdropping statute, makes it a
crime to intentionally intercept any wire, oral, or electronic
communication without consent of all the parties involved in the
communication. Subdivision (c) of that same section makes it
unlawful to intentionally disclose the contents of such a
communication if the person disclosing it "knew or had reason to
know" that the information had been illegally obtained. In
short, subdivision (c) appears to be strikingly similar to the
amendment proposed by AB 524, except that AB 524 adopts a
seemingly higher standard of "actual knowledge." (AB 524 is
also more narrowly focused on intrusions attempting to capture
"personal and familial" activity, whereas as the federal law
applies to any communication.)
Although the holding in Bartnicki does not offer definitive
answers about AB 524, it does appear to highlight the parameters
of the debate. In Bartnicki, an unknown person intercepted a
cell phone conversation between a union organizer and the
president of a teacher's union concerning ongoing negotiations
with a local school board. During the course of this unlawfully
intercepted conversation, one of the parties suggested that if
some of the board members did not change their intransigent
stance, then they might have to "blow off the porches" of some
of their homes. Whether this was said in seriousness or in
jest, the recorded conversation found its way to a local radio
station that played it repeatedly. When the case reached the
U.S. Supreme Court the parties had stipulated to a number of key
issues: (1) that the conversation had been unlawfully obtained;
(2) that the radio station played no role in obtaining the
recording but did know, or had reason to know, that it had been
unlawfully obtained; and (3) that the federal law was a "content
neutral" law of general applicability. Thus, the question
before the Court was not whether the statute was facially
invalid but whether it was invalidly applied.
The majority held that application of the statute as applied in
this case violated the First Amendment. In reaching its
conclusion, the court reasoned that while the act of
intercepting the information was clearly illegal and therefore
unprotected, the publication of even illegally obtained
information is protected by the First Amendment. Very important
for any constitutional analysis of this bill, however, the Court
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stressed that its holding could only be applied to the narrow
facts before them, and expressly disavowed articulating any
broad principles to resolve the complex competing interests at
stake. In looking at the specific facts of the case, the Court
reasoned that there were many factors which worked in favor of
the radio programs First Amendment right to broadcast the
recording, even though it knew it was unlawfully obtained: (1)
it involved a matter of obvious public concern; (2) the radio
program had played no role in obtaining the information and had
done nothing to encourage the obtaining of the information; and
(3) the radio station had itself obtained the information
lawfully. In addition, the Court rejected the government's
claim in support of applying the statute that the government had
an interest in deterring illegal activity. The Court found the
deterrence argument to be weak, concluding that "it would be
quite remarkable to hold that speech by a law-abiding possessor
of information can be suppressed in order to deter conduct by a
non-law-abiding third party."
In short, the holdings and dicta in Shulman, Turnbull, and
Bartnicki -- although each self-consciously limited to the
facts before them - appear to make two key points that appear
quite relevant to any constitutional analysis of this bill as it
proposes to amend existing law: (1) That unlawful actions do not
implicate the First Amendment since they are not forms of speech
or expression; (2) that publication of even unlawfully obtained
information implicates the First Amendment; but (3) that laws
that prohibit the disclosure of unlawfully obtained information,
where the one disclosing knows or has reason to know that it was
unlawfully obtained , are not necessarily facially
unconstitutional, but may be found to be unconstitutional as
applied, especially where the information is of a matter of
genuine public concern.
Conclusion : The analysis does not purport to suggest that the
above case summaries address nearly all of the relevant issues
surrounding the constitutionally important and competing claims
of privacy rights and the First Amendment inherently triggered
by this important legislation. However these cases - which
appear to be the most relevant - at least begin to set out the
parameters within which this bill might be evaluated purely from
a constitutional vantage point. In considering the strong
public policy arguments in support of the measure, the Committee
may wish to discuss with the author her views as to whether it
might make sense as the bill moves through the Legislature to
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evaluate the potential merits of narrowing the bill a bit to
more surgically target its penalties on those persons or
entities that actually pay money or some other form of
consideration for the ill-begotten images and recordings covered
by the measure. In exploring this possible narrowing, it may be
concluded that the bill should make crystal clear that a media
outlet shall continue to be permitted to publish or broadcast
images, perhaps captured by a citizen, that are truly
newsworthy, and not produced solely or primarily with the
expectation of financial gain.
ARGUMENTS IN SUPPORT : In support, the PAPARAZZI Reform
Initiative writes:
Having worked for two decades in and around the
entertainment industry (spending five of those years
in security), I have unfortunately gotten to see
behind the scenes regarding how the paparazzi work and
I have many levels of disagreement and concern
regarding how they behave.
First and foremost, it utterly stuns me that no one
else has been killed - paparazzo, pedestrian or
celebrity. With high speed car chases shooting through
the streets of Los Angeles with no regard for street
lights or other laws, it is only a matter of time
before disaster strikes again.
But on another level, a more basic human level, no
individual deserves to be treated the way the
paparazzi treat most of their "subjects". Like packs
of wolves, they literally hunt their victims,
surrounding them in vehicles or on foot, following
them and taking photos hoping to get something they
can sell. Whether the celebrity wants it or not,
whether child involved or no, the paparazzi persist.
With cameras flashing and video running, they endanger
pedestrians, drivers, the celebrity and even
themselves.
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One night not long ago I took my camera and turned
into a paparazzo for a few hours to get my own photos
of them. I became part of the pack waiting for a big
celebrity to walk out of a restaurant and when the
moment arrived, as body guards and assistants whisked
the celebrity to the waiting SUV, a veteran paparazzo
got the perfect shot of her. He came over and
displayed the photo on his camera and as the SUV
pulled away said, "God forbid this is the last photo
of her?you never know, she could die in an accident
tonight." It is this mentality that will ultimately
cause another death which will make headlines around
the world.
REGISTERED SUPPORT / OPPOSITION :
Support
PAPARAZZI Reform Initiative
Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334