BILL ANALYSIS
AB 524
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 524 (Bass)
As Amended September 2, 2009
Majority vote
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|ASSEMBLY: |55-14|(June 2, 2009) |SENATE: |25-15|(September 8, |
| | | | | |2009) |
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Original Committee Reference: B. & P.
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 the transmission, publication, broadcast, sale,
offer for sale, or other use of any visual image, sound
recording, or other physical impression that was obtained in
violation of California's existing invasion of privacy
statute, shall not constitute a violation of the statute
unless the person, in the first transaction following the
taking or capture of the image, recording or other impression,
publicly transmitted, published, broadcast, sold or offered
for sale, the image, recording or other impression with actual
knowledge that they were unlawfully obtained, in violation of
the invasion or privacy statute, and provided compensation,
consideration, or remuneration, monetary or otherwise, for the
rights to the unlawfully obtained image, recording, or
impression.
2)Defines "actual knowledge" to mean actual awareness,
understanding, and recognition, obtained prior to the time at
which purchased or acquired the image, recording, or
impression, that the image, recording, or impression was
unlawfully obtained.
3)Specifies that any person that publicly transmits, publishes,
broadcasts, sells or offers for sale, an image, recording, or
impression that was previously publicly transmitted,
published, broadcast, sold or offered by for sale, by another
person, is exempt from liability under this section.
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4)Specifies that the provisions of this bill apply only to
images, recordings, or impression that is captured or taken in
California.
5)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.
The Senate amendments :
1)Clarify that a person who transmits, publishes, broadcasts,
sells, or otherwise uses images, recordings, and impressions
obtained in violation of the invasion of privacy statute does
not violate the statute unless it is the first such
transaction after the unlawful capturing, and that
transmitting, publishing, broadcasting, or selling images,
recordings, or impressions that have already been transmitted,
published, broadcast, or sold is not a violation of the
statute.
2)Define "actual knowledge" for purposes of this bill.
3)Provide that persons who violate the provisions of this bill,
or solicit or induce others to do so, will be subject to a
civil fine of not less than $5,000 and not more than $50,000,
and provides a mechanism for allocating those fines.
EXISTING LAW :
1)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. 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.
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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
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)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.
6)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
or any proceeds or other consideration obtained as a result of
the violation of this section.
7)Provides that a person, who directs, solicits, induces, or
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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.
8)Generally exempts from the statute any lawful activities of
law enforcement personnel or employees of governmental
agencies or other entities engaged any lawful investigation,
surveillance, or monitoring activity.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
to the version approved by the Senate.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
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
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
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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
FN: 0003025