BILL ANALYSIS
AB 2479
Page 1
Date of Hearing: May 4, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 2479 (Bass) - As Amended: April 28, 2010
As Proposed to be Amended
SUBJECT : Stalking: Surveillance
KEY ISSUES :
1)Should the definition of "stalking" under California's civil
anti-stalking statute be expanded to include placing a person
"under surveillance?"
2)Should California's civil "invasion of privacy" statute be
amended to include "false imprisonment" committed with the
intent to capture a person's voice or visual image?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
Existing law makes a person liable for the civil tort of
"stalking" if the person engages in a pattern of conduct that is
intended to follow, alarm, or harass another person. In order
to prevail, a plaintiff that brings an action under the stalking
statute must prove all the following elements: (1) that the
defendant engaged in a pattern of conduct that constituted
stalking; (2) that as a result of that conduct the plaintiff
reasonably feared for his or her safety, or for the safety of an
immediate family member; and (3) that the defendant made a
credible threat with the intent to place the plaintiff in such
fear. In addition, existing law requires that the plaintiff
must have, on at least one occasion, clearly demanded that the
defendant cease the conduct and the defendant nevertheless
persisted. This bill would expand the definition of "stalking"
to include conduct that is intended to "place [a person] under
surveillance," which is defined as remaining outside of another
person's home, school, or workplace with no apparent lawful
purpose. This bill also seeks to amend the state's civil
"invasion of privacy" statute by including "false imprisonment"
that is committed in order to obtain a visual image or other
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impression of the person. According to the author, this bill
seeks to abate aggressive behavior by paparazzi that go to any
length to capture the sounds and images of celebrities and their
families. The author contends that the existing anti-stalking
and invasion of privacy statutes do not clearly cover the kinds
of "surveillance" in which paparazzi often engage. The Motion
Picture Association of America opposes this bill on the grounds
that it is unnecessary and will interfere with numerous
legitimate surveillance activities related to news gathering,
piracy investigation, and certain entertainment programs. The
Committee has suggested amendments that the author has agreed to
accept; the bill summary below reflects the bill as proposed to
be amended.
SUMMARY : Expands the existing statute that makes a person
liable in tort for stalking to include conduct that places a
person under "surveillance" and amends the existing invasion of
privacy statute to include "false imprisonment," as specified.
Specifically, this bill :
1)Expands liability for the tort of stalking by adding "place
under surveillance" to the list of intentional patterns of
conduct that constitute "stalking." Provides, consistent with
what is required under the existing statute, that such
surveillance would only create liability if the plaintiff
could also prove that the conduct (a) placed the plaintiff in
reasonable fear for his or her safety, or the safety of an
immediate family member; (b) was done with the intent of
placing the plaintiff in such fear; and (c) that the plaintiff
clearly demanded that the defendant cease the conduct and the
defendant persisted in the conduct.
2)Defines "place under surveillance" to mean remaining present
outside the plaintiff's school, school, place of employment,
vehicle, residence, other than the residence of the defendant,
or other place occupied by the plaintiff. Provides however
that "place under surveillance" does not include various
actions by law enforcement and private investigators, as
specified.
3)Provides that a person who commits "false imprisonment" with
the intent to capture any type of visual image, sound
recording, or other physical impression of a plaintiff is
subject to liability under the civil invasion of privacy
statute and, as such, liable for up to three times the amount
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of any general or special damages that are proximately caused
by the conduct.
EXISTING LAW :
1)Makes a person liable for the tort of stalking when the
plaintiff proves all of the following elements of the tort:
(a) that the defendant engaged in a pattern of conduct with
the intent to follow, alarm, or harass the plaintiff; (b)
that, as a result of that conduct, the plaintiff reasonably
feared for his or her safety, or the safety of an immediate
family member; (c) that the defendant made a credible threat
with the intent of placing the plaintiff in such fear, OR the
defendant's conduct was in violation of a restraining order
prohibiting the conduct. Provides further the plaintiff must
have made a clear demand that the defendant cease the conduct
and the defendant nonetheless persisted. (Civil Code Section
1708.7.)
2)Defines "credible threat," for purposes of the above, to mean
a verbal or written threat, including an electronic
communication, or threat implied by a pattern of conduct, or a
combination thereof, made with the intent and apparent ability
to carry out the threat so as to cause the person who is the
target of the threat to reasonably fear for his or her safety
or the safety of his or her immediate family. (Civil Code
Section 1708.7 (b)(2).)
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. (Civil Code Section 1708.8
(a).)
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
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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).)
5)Provides that a person who commits an assault with the intent
to capture any type of visual image, sound recording, or other
physical impression of the plaintiff is subject to the same
treble damages as is a person who commits a physical or
constructive invasion of privacy. (Civil Code Section 1708.8
(c)-(f).)
COMMENTS : This author-sponsored bill seeks to strengthen
California's civil anti-stalking statute by expanding the
definition of stalking to include placing a person "under
surveillance." The bill also amends California's civil invasion
of privacy statute to impose liability for false imprisonment
when committed with the intent to capture a visual image, sound
recording, or other physical impression of the plaintiff. As
with the author's AB 524 (Chapter 499, Stats. of 2009), this
bill is primarily an effort to curb the often aggressive tactics
used by paparazzi to capture images and recordings of
celebrities and their families in order to satiate a public that
clamors for the intimate details of the lives of Hollywood
stars.
Adding "Place Under Surveillance" to the Existing Civil
Anti-Stalking Statute. According to the author, this bill will
strengthen the civil anti-stalking statute so as to prevent
paparazzi from loitering outside of a celebrity's home or place
of work, or even outside of the schools of the celebrity's
children. Existing law (Civil Code Section 1708.7) provides
that a person is liable for the tort of stalking if that person
engages in certain patterns of conduct that intentionally put
another person in fear of his or her safety, or the safety of
his or her immediate family. The problem with existing law,
according to the author, is that the covered patterns of conduct
only include one who "follows, alarms, or harasses" another
person for no legitimate purpose. However, the author contends
that persistently loitering outside of a person's home, school,
or workplace is -- and under the law should be -- enough to
create a "reasonable fear for one's safety," or the safety of
one's immediate family, that the anti-stalking statute was
intended to prevent. Therefore, this bill would add the words
"place under surveillance" to the existing list of patterned
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conduct - follow, alarm, and harass - that constitutes
"stalking" for purposes of the civil anti-stalking statute.
Of course, the mere loitering outside of a person's home,
school, or workplace would not, by itself, create liability
under the statute. As is true with existing law, in order to
prevail a plaintiff must not only prove that the defendant
engaged in the pattern of conduct; the plaintiff must also prove
that the conduct had the effect of putting the plaintiff in
reasonable fear AND generally that the defendant acted with the
intent to place the plaintiff in fear. (This "intent" element
can also be met if the defendant's conduct was in violation of a
restraining order.) In addition, the plaintiff must also show
that, on at least one occasion, he or she demanded that the
defendant cease the pattern of conduct and the defendant
persisted.
Adding "False Imprisonment" to the Invasion of Privacy Statute .
Under the common law, there are four distinct categories of the
tort of "invasion of privacy:" (1) intrusion upon a plaintiff's
seclusion or solitude; (2) public disclosure of private facts;
(3) publicity that places the plaintiff in a "false light;" and,
(4) appropriation of a plaintiff's likeness or image for the
defendant's advantage. Generally, the tort of intrusion
requires intrusion into a private place in a manner that would
be highly offensive to a reasonable person. (Turnbull v. ABC,
2004 U.S. Dist. LEXIS 24351.) California has attempted to
codify a combination of categories (2) and (4) - intrusion and
appropriation -- in Civil Code Section 1708.8, generally known
as the "invasion of privacy" statute. A person committing the
torts of intrusion and appropriation are generally subject to
treble damages and other remedies, such as disgorgement of
profits and injunctive relief. (Civil Code Section 1708.8
(d)-(f).) However, the statute also specifies that a person who
commits an "assault" while attempting to capture a visual image,
sound recording, or other physical impression of the plaintiff
is subject to the same damages as one who commits an invasion of
privacy. This bill would provide that "false imprisonment,"
along with assault, would similarly be subject to the same
damages as one who commits physical or constructive invasion of
privacy.
The bill does not define "false imprisonment," but presumably it
would have the same meaning that it has at common law: that is,
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the intentional infliction of "confinement," with confinement
defined as restricting a person to a confined physical space
without any path of escape. Generally, the plaintiff must be
aware that he or she is confined. (See Prosser, On Torts.)
This provision is apparently targeted at the practice of
paparazzi encircling or otherwise confining celebrities to the
point that they are denied an avenue of escape. False
imprisonment is not generally considered a form of "invasion of
privacy," though, like invasion of privacy, it is an intentional
tort that is actionable in its own right. Incorporating these
independent torts into the codification of the "invasion of
privacy" tort conflates what are in fact distinct torts, which
makes its placement in this statute potentially confusing.
However, the rationale for adding "false imprisonment" to the
invasion of privacy statute is apparently the same as the
justification for adding "assault" to this same statute in 2005:
so that the plaintiff bringing a civil action for assault or
false imprisonment will be entitled to the treble damages
provided for in the invasion of privacy statute. (See Assembly
Judiciary Committee, Analysis of AB 381, September 8, 2005.)
Bill in Print Would Change Application of the Statute to
Existing Forms of Stalking, Not Just "Surveillance ." While the
goal of this bill is clear and admirable, the bill as currently
in print regrettably appears to contain a number of structural
ambiguities. The bill therefore would be simpler and more
straight-forward if it simply added "place under surveillance"
to the list of patterns of conduct that constitute "stalking,"
(as the author has now agreed to amend it as proposed to be
amended.) Instead, the author, apparently in an effort to
address the concerns of the Motion Picture Association of
America (MPAA), added to the current in-print version of the
measure a number of qualifying provisions and definitional
changes that appear to create redundancy and inadvertent
confusion. Moreover, some of the definitional changes were made
in order to address "surveillance," but were done is such a way
that they would also modify the other patterns of conduct that
now constitute stalking, namely following, alarming, and
harassing.
Other qualifications in the current in-print version of the
measure seem contrary to the author's stated objectives. For
example, the April 28 version of the bill includes a provision
stating that the provisions of the anti-stalking statute would
not impair or limit the production of a number of works,
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including audiovisual works, news or radio programs, magazines,
or "similar work." This provision would seem to exempt some of
the very paparazzi activity that the author seeks to make
actionable. Obviously the paparazzi could claim exemption on
the ground that they were producing an "audiovisual work," or
gathering "news," or taking a picture for a magazine or some
"similar work." The exemption, in short, appeared to
inadvertently swallow the purpose of the bill, and this is cured
in the bill as now proposed to be amended.
PROPOSED COMMITTEE AMENDMENTS : In order to begin to address the
current structural problems with the bill in print, and to
ensure that the bill meets the author's objectives, the
Committee has recommended, and the author has agreed, to amend
the bill in Committee so as to add "place under surveillance"
but without changing parts of the surrounding statute. In
addition, the bill as proposed to be amended, would add a
definition of "place under surveillance" that would appear to
addresses some, but not all, of the concerns raised by the MPAA.
And it would do this without modifying the existing statute as
a whole. A mock-up of the existing statute with these proposed
amendments appears at the end of this analysis; however, in
brief, the Committee recommends deleting all the existing
changes that the bill makes to the existing statute (save one)
and making only the following two changes to existing Civil Code
Section 1708.7:
Amend section 1708.7 (a) (1) of the Civil Code to read:
1708.7. (a) A person is liable for the tort of stalking
when the plaintiff proves all of the following elements of
the tort:
(1) The defendant engaged in a pattern of conduct the
intent of which was to follow, alarm, place under
surveillance or harass the plaintiff. In order to
establish this element, the plaintiff shall be required to
support his or her allegations with independent
corroborating evidence.
In addition to adding "place under surveillance" to the list of
conduct that constitutes stalking, the Committee would also
propose adding the following definition:
(5) "Place under surveillance" means remaining present outside
the plaintiff's school, place of employment, vehicle, residence,
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other than the residence of the defendant, or other place
occupied by the plaintiff. For purposes of the liability
created by subdivision (a), "place under surveillance" does not
include any lawful activity of law enforcement personnel or
employees of agencies, either public or private, who, in the
course and scope of their employment , encourage or attempt to
engage in any conduct or activity to obtain evidence of
suspected illegal activity or other misconduct, suspected
violation of any administrative rule or regulation, suspected
fraudulent conduct, or any suspected activity involving a
violation of law or business practice or conduct of a public
official that adversely affects public welfare, health, or
safety.
This proposed definition appears to respond, at least in part,
to the concerns raised by the MPAA letter of opposition (which
is discussed in more detail below). The language that describes
what is not included within the meaning of "place under
surveillance" is taken from language suggested by the MPAA to
exempt this kind of law enforcement or private investigative
activity from the anti-stalking statute as a whole. However,
incorporating this language into the definition of "place under
surveillance" would appear to appropriately ensure that the
restriction only applies to the new conduct that is being added,
not to the statute as a whole. This definition would appear to
ensure that the bill does not interfere with or limit the
actions of law enforcement, government agency investigators, or
private licensed investigators in the scope of their employment.
Engaging in "Surveillance" Does Not By Itself Create Liability .
Both the introduced and April 28 version of this bill defined
"place under surveillance" in a manner that required an "intent
to engage in a pattern of conduct that places the plaintiff in
reasonable fear of for his or her safety or that of an immediate
family member." The problem with this definition would appear
to that it confuses the definition of the conduct with the
elements of the tort. That is, the statute already provides
that there is no liability for the tort of stalking unless the
plaintiff can prove that the conduct (1) caused the plaintiff to
reasonably fear for his or her safety or the safety of an
immediate family member, AND (2) that the conduct was done with
the intent of creating such fear. The definition therefore
risks unintended confusion.
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The unintended confusion between the definition of the conduct
and the elements of the tort is also evident in the MPAA letter
of opposition, which raises the prospect that a plaintiff might
bring an action in tort merely because someone is parked outside
of their home, school, or workplace. But recall that mere
conduct does not create liability. Liability requires the
conduct plus all of the other elements of the tort. Under the
rather stringent required elements in the statute, the plaintiff
would have to show not only that the defendant engaged in the
conduct, but that all of the following were also true: (1) the
conduct caused the plaintiff to reasonably fear for his or her
safety or the safety of an immediate family member; (2) the
defendant made a "credible threat" with the "intent" to place
the plaintiff in reasonable fear of his or her safety or the
safety of an immediate family member; (3) that on at least one
occasion the plaintiff clearly and definitively demanded that
the defendant cease and abate his or her pattern of conduct; and
(4) that the defendant persisted in his or her pattern conduct
even after the demand to stop. The definition of the conduct,
in short, does not establish liability. It requires the conduct
as defined, and all of the other necessary elements of the tort.
The above described amendments as proposed to be amended would
appear not to address all of the concerns of the measure's
opponents. Moreover, the opposition's concern that adding
"surveillance" to the anti-stalking statute will require making
other changes to the statute in order to properly take account
of this addition appears to be well-founded. Therefore, the
Committee may wish to recommend that the author continue to work
on this important bill with all of stakeholders to consider
other changes that may be warranted as the bill moves forward.
ARGUMENTS IN SUPPORT : The author contends that adding a
surveillance provision to the existing anti-stalking law will
"prevent aggressive paparazzi from stalking celebrities by
loitering outside celebrities' homes, schools, their children's
schools, car, churches, medical facilities, restaurants, etc.,
for an opportunity to take non-consensual photos. The mere act
of placing someone under surveillance is enough to create fear
for one's safety . . . or the safety of an immediate family
member." In addition, the author seeks to make paparazzi more
accountable by extending the enhanced penalties in the invasion
of privacy statute to any "false imprisonment" committed in an
effort to acquire a photo of a person against their wishes.
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The Paparazzi Reform Initiative (PRI) supports, in particular,
the provision of this bill that will extend the damages provided
in the invasion of privacy statute - especially disgorgement of
profits - to photographers who commit "false imprisonment" by
encircling celebrities to such an extent that they have no
possibility of escape.
ARGUMENTS IN OPPOSITION : The Motion Picture Association of
America (MPAA) opposes this bill, at least as it understands the
amendments that will be taken in Committee. First, MPAA claims
that this bill will impede legitimate investigation and law
enforcement activities, in particular efforts by MPAA member
companies to investigate piracy. MPAA claims that under this
bill, some the activity of MPAA members would be actionable.
MPAA also argues that this measure will interfere with news
gathering activities in a way that violates the First Amendment.
MPAA claims that if this bill became law, the subjects of news
stories could file a claim for stalking against the journalist
or broadcaster who engaged in surveillance in pursuit of the
story. MPAA also claims that this bill will interfere with the
development of certain "reality" programming that secretly film
and surprise people, similar to the old "Candid Camera" show.
Finally, MPAA claims that existing privacy laws, including last
years AB 524, provide adequate protections, and that this bill
is simply unnecessary.
Response to MPAA concerns and proposed amendments . The MPAA
recommends two amendments. First, they seek an amendment that
would exempt lawful investigative activity, whether by private
or public entities, from any provisions of the anti-stalking
statute. It is not clear whether the definition of "place under
surveillance" as proposed in this analysis will meet that
concern. Their proposal would exempt such activity from any
tort action for stalking, not just those based on surveillance.
The proposed definition suggested by the Committee in this
analysis would restrict the exemption to claims based on
surveillance, but not, for example, on harassing conduct.
Second, MPAA seeks an exemption for persons engaged in
developing or producing audiovisual works, motion pictures,
television programming, news programs, magazines, or "similar
work." As noted above, this broad definition would appear to
include some of the very paparazzi activity that the author
seeks to prevent.
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Finally, MPAA worries that persons engaging in lawful
investigations, news gathering, or production activities who
must engage in forms of "surveillance" will inadvertently be
potentially liable under the bill, due to the definition of
"surveillance." However, as explained above, it is important to
reiterate that none of these activities by themselves would
appear to create liability. Merely engaging in acts of
surveillance is not actionable. In addition to showing the
investigators engaged in surveillance, the plaintiff would also
need to allege that (1) the activity caused the plaintiff to
reasonably fear for his or her safety or the safety of an
immediate family member; (2) that the person engaging in the
activity acted with the intent to cause such fear; and (3) that
the plaintiff made at least one clear demand that the
investigator stop the activity and the defendant persisted in
the activity. None of the activities mentioned by MPAA would
appear to create liability -- unless it was accompanied by all
of the other elements of the tort.
Prior Related Legislation . AB 524 (Chapter 499, Stats. of 2009)
amended the "invasion of privacy" statute (Civil Code Section
1708.8) 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. Previously, the statute
had only applied to the person who wrongfully obtained the
image, recording, or physical impression, but not necessarily
the entity that sold or published the image, recording, or
impression.
REGISTERED SUPPORT / OPPOSITION :
Support
Paparazzi Reform Initiative
Opposition
Motion Picture Association of America
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334