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: 9/2/09 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.
Senate Floor Amendments of 9/2/09 set parameters for
liability for invasion of privacy for individuals that
publish, transmit, or broadcast illegally obtained images.
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. (Civil Code Section
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))
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Existing law provides that 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))
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))
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This bill provides that the transmission, publication,
broadcast, sale, offer for sale, or other use of any visual
image, sound recording, or other physical impression that
was taken or captured in violation of specified provisions
of law shall not constitute a violation unless the person,
in the first transaction following the taking or capture of
the visual image, sound recording, or other physical
impression, publicly transmitted, published, broadcast,
sold or offered for sale, the visual image, sound
recording, or other physical impression with actual
knowledge that it was taken or captured in violation of any
law, and provides compensation, consideration, or
remuneration, monetary or otherwise, for the rights to the
unlawfully obtained visual image, sound recording, or other
physical impression.
This bill defines "actual knowledge" as actual awareness,
understanding, and recognition, obtained prior to the time
at which the person purchased or acquired the visual image,
sound recording, or other physical impression, that the
visual image, sound recording, or other physical impression
was taken or captured in violation of existing law. The
plaintiff is required to establish actual knowledge by
clear and convincing evidence.
This bill provides that any person that publicly transmits,
publishes, broad-casts, sells or offers for sale, in any
form, medium, format or work, a visual image, sound
recording, or other physical impression that was previously
publicly transmitted, published, broadcast, sold or offered
for sale, by another person, is exempt from liability under
the provisions of this bill.
This bill provides that if a person's first public
transmission, publication, broadcast, or sale or offer for
sale, of a visual image, sound recording, or other physical
impression that was taken or captured in violation of
existing law, does not constitute a violation of this bill,
that person's subsequent public transmission, publication,
broadcast, sale or offer for sale, in any form, medium,
format or work, of the visual image, sound recording, or
other physical impression, does not constitute a violation
of this bill.
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This bill provides that these provisions apply only to a
visual image, sound recording, or other physical impression
that is captured or taken in California in violation of
existing law after January 1, 2010, and shall not apply to
any visual image, sound recording, or other physical
impression taken or captured outside of California.
This bill provides that nothing in these provisions shall
be construed to impair or limit a special motion to strike
pursuant to Section 425.16, 425.17, or 425.18 of the Code
of Civil Procedure.
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.
This 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 creates 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 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 9/3/09)
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City of Los Angeles
Los Angeles County Sheriff
Screen Actors Guild
The Paparazzi Reform Initiative
OPPOSITION : (Verified 9/3/09)
American Civil Liberties Union
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
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in the unlawful capturing of the information." It is not
possible, argues CPNA, to enact this bill which would
prosecute such persons, and still be consistent with
Bartnicki v. Vopper .
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
NO VOTE RECORDED: Bill Berryhill, Block, Conway, Cook,
Duvall, Galgiani, Garrick, Harkey, Silva, Smyth, Villines
RJG:do 9/3/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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