BILL ANALYSIS
AB 524
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ASSEMBLY THIRD READING
AB 524 (Bass)
As Amended May 19, 2009
Majority vote
JUDICIARY 8-2
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|Ayes:|Feuer, Brownley, Evans, | | |
| |Jones, Krekorian, Lieu, | | |
| |Monning, Nielsen | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Tran, Knight | | |
| | | | |
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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. 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 and provided compensation,
consideration, or remuneration, monetary or otherwise, for the
use of, or rights to, the unlawfully obtained images or
recordings.
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.
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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. 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. (Turnbull v.
ABC, 2004 U.S. Dist. LEXIS 24351.)
2)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.
3)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.
4)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.
5)For purposes of the above provisions, defines "personal or
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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.
6)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.
7)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.
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
a violation of the statute, is liable for any general,
special, and consequential damages resulting from each
violation.
9)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.
FISCAL EFFECT : None
COMMENTS : This 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 behavior. Existing
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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 would
amend 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 and provided compensation,
consideration, or remuneration, monetary or otherwise, for the
use of, or rights to, the unlawfully obtained images or
recordings.
As such, this measure touches the core of one of the most
complex areas of 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. A key
constitutional issue raised by this bill is whether the state
can, consistent with the First Amendment, prohibit the
publication of material that has been unlawfully obtained.
Although existing state and federal case law is not conclusive
on this point, it does suggest the three following conclusions:
1) that unlawful actions by themselves 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.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
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