BILL ANALYSIS
AB 2479
Page 1
ASSEMBLY THIRD READING
AB 2479 (Bass)
As Amended June 1, 2010
Majority vote
JUDICIARY 7-1
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|Ayes:|Feuer, Brownley, Evans, | | |
| |Jones, Monning, Nava, | | |
| |Skinner | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Knight | | |
| | | | |
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SUMMARY : 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 damages and remedies
available pursuant to that statute, as specified.
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.
2)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
AB 2479
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offensive to a reasonable person.
3)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.
4)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.
FISCAL EFFECT : None
COMMENTS : The bill 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, Statutes 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.
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 -- 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
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remedies, such as disgorgement of profits and injunctive relief.
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,
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. 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.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0004688