BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 524|
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THIRD READING
Bill No: AB 524
Author: Bass (D), et al
Amended: 7/23/09 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-2, 7/14/09
AYES: Corbett, Florez, Leno
NOES: Harman, Walters
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 55-14, 6/2/09 - See last page for vote
SUBJECT : Privacy
SOURCE : Author
DIGEST : This bill amends 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 has actual
knowledge that the image, recording, or impression was
unlawfully obtained, and provided compensation,
consideration, or remuneration, monetary or otherwise, for
the use of, or rights to, the unlawfully obtained images or
recordings. This bill provides that a person who violates
the statute, or who directs, solicits, actually induces, or
actually causes another person to violate any of those
provisions would be subject to a civil fine of not less
CONTINUED
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than $5,000 and not more than $50,000.
ANALYSIS :
Existing common law recognizes 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. American Broadcasting Companies , (2004) 32 Media L. Rep.
2442.)
Existing law 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).)
Existing law 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. (Civ. Code Sec. 1708.8
(b).)
Existing law 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).)
Existing law provides that the sale, transmission,
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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).)
Existing law provides that an assault committed with the
intent to capture any type of visual image, sound
recording, or other physical impression is subject to
enhanced statutory penalties and remedies prescribed.
(Civil Code Section 1708.8 (c).)
Existing law provides that a person who violates the
statute for a commercial purpose shall, in addition to any
other damages or remedies provided, be subject to
disgorgement to the plaintiff of any proceeds or other
consideration obtained as a result of the violation of this
section. Existing law defines "commercial purpose" to mean
any act done with the expectation of sale, financial gain,
or other consideration. (Civil Code Section 1708.8 (d),
(k).)
Existing law 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).)
Existing law 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).)
This bill provides that the sale, transmission, broadcast,
or use of any image or recording that was obtained in
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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.
This bill provides that a person who violates the "invasion
of privacy" statute provisions described above, or who
directs, solicits, actually induces, or actually causes
another person to violate any of those provisions would be
subject to a civil fine of not less than $5,000 and not
more than $50,000.
This bill provides that a proceeding to recover the civil
fines may be brought in any court of competent jurisdiction
by a county counsel or city attorney.
The bill specifies that the fines collected shall be
allocated as follows: (1) one-half to the prosecuting
agency; and (2) one-half shall be deposited in the Arts and
Entertainment Fund, which this bill created in the State
Treasury.
This bill makes legislative findings and declarations as to
the problem of photographers, videographers, and audio
recorders harassing, invading the privacy interest, and
physically endangering individuals and their families in
order to capture images and recordings for commercial
purposes. This bill would find and declare 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 8/17/09)
Los Angeles County Sheriff
Screen Actors Guild
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The Paparazzi Reform Initiative
OPPOSITION : (Verified 8/17/09)
American Civil Liberties Union
California Broadcasters Association
California Newspaper Publishers Association
Californians Aware
ARGUMENTS IN SUPPORT : According to the author's office,
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. This bill seeks to deter invasive
paparazzi conduct by attaching liability to publishers who
use paparazzi, thereby removing the financial incentive for
paparazzi to continue pursuing and photographing
celebrities.
ARGUMENTS IN OPPOSITION : Various concerns have been
expressed about the potential consequences should this bill
be enacted. In particular, in their opposition letter to
this bill, the California Newspaper Publishers Association
(CNPA) argues that the enactment of this bill will force
the Legislature to tread "into uncharted First Amendment
territory, where costs of litigation are excruciatingly
expensive." This bill, CNPA says, allows city and district
attorneys to pursue a victim's personal civil action at the
expense of taxpayer dollars. Traditionally, CNPA argues,
there has not been a societal interest in using taxpayer
funds to protect the private property and personal moments
of an individual. To use public resources in such a manner
would be unjustified.
Additionally, in its letter, the CNPA cites to Bartnicki v.
Vopper , which held that "the media is constitutionally
protected from liability even for the publication of
information unlawfully obtained by a third party and then
transmitted to the media where the information concerns a
matter of public concern and the media did not participate
in the unlawful capturing of the information." It is not
possible, argues CPNA, to enact this bill which would
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prosecute such persons, and still be consistent with
Bartnicki v. Vopper .
Another main concern, expressed by the California
Broadcasters Association (CBA), is how far liability will
be extended and its affect on daily broadcast operations.
Specifically, CBA states:
"AB 524 demands that broadcasters decided on the
legality of the photographer's conduct, with few
available facts other than the images themselves. If
the photographer committed a physical trespass or
constructive trespass (telephoto lens), a station
cannot purchase the video - unless the taping was
consensual, not of a personal or family activity, or
captured in an offensive manner. Who do you ask for
clarification? The biased person in the video who
doesn't want it broadcast or the one who wants to trade
it for money?
"CBA also points to instances where a station purchases
a program produced by a third party, and is assured the
program contents were obtained legally. CBA questions
whether and to what extent may the purchasing station
rely on those assurances? Instead of focusing on the
newsworthiness of the content, CBA asserts that news
broadcasters and program directors will be more
concerned with the potential liability that accompanies
its broadcast."
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Arambula, Beall, Blumenfield,
Brownley, Buchanan, Caballero, Charles Calderon, Carter,
Chesbro, Coto, Davis, De La Torre, De Leon, Eng, Evans,
Feuer, Fletcher, Fong, Fuentes, Furutani, Gilmore, Hall,
Hayashi, Hernandez, Hill, Huber, Huffman, Jeffries,
Jones, Krekorian, Lieu, Bonnie Lowenthal, Ma, Mendoza,
Monning, Nava, Niello, Nielsen, John A. Perez, V. Manuel
Perez, Portantino, Price, Ruskin, Salas, Saldana,
Skinner, Solorio, Swanson, Torlakson, Torres, Torrico,
Yamada, Bass
NOES: Anderson, Tom Berryhill, Blakeslee, DeVore,
Emmerson, Fuller, Gaines, Hagman, Knight, Logue, Miller,
Nestande, Audra Strickland, Tran
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NO VOTE RECORDED: Bill Berryhill, Block, Conway, Cook,
Duvall, Galgiani, Garrick, Harkey, Silva, Smyth, Villines
RJG:do 8/19/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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