BILL ANALYSIS
AB 2479
Page 1
Date of Hearing: August 30, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 2479 (Bass) - As Amended: August 20, 2010
FOR CONCURRENCE
SUBJECT : invasion of privacy: false imprisonment: reckless
driving
KEY ISSUES :
1)Should a person who commits "false imprisonment" with the
intent to capture a visual image, sound recording, or other
physical impression of another person be liable for the full
range of CIVIL damages available under the civil invasion
privacy statute?
2)Should a person who engages in reckless driving while
attempting to capture a visual image, sound recording, or
other physical impression of another person be subject to
heightened penalties?
SYNOPSIS
According to the author, this bill is a response to the
intrusive and sometimes recklessly dangerous conduct of
paparazzi when they are attempting to capture photographs, sound
recordings, or other physical impressions of celebrities for
commercial gain. The bill seeks to deter this behavior in two
ways: first, by making "false imprisonment," which includes
surrounding another person or persons without leaving any means
of escape, subject to the heightened civil damages available
under the invasion of privacy statute; second, by subjecting
persons who engage in reckless driving while attempting to
capture an image or recording of another person to heightened
fines and penalties. According to the author, these heightened
civil and criminal penalties are aimed as the especially
virulent paparazzi who chase celebrities along public streets
and highways and sometimes even surround stars and their
families so that they have no possible means of escape. The
bill is supported by the Paparazzi Reform Initiative and opposed
by the California Newspaper Publishers Association, which claims
that the bill will have unintended consequences for mainstream
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media and that it unfairly singles out journalists for
heightened penalties.
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. Provides
further that a person who engages in reckless driving while
attempting to capture a visual image or other impression of
another person will be subject to heightened penalties.
Specifically this bill provides that:
1)A person who commits the tort of "false imprisonment" is
liable for the same general, special, and punitive damages as
is a person who commits the tort of physical or constructive
invasion of privacy.
2)Any person who engages in specified forms of reckless driving,
including interfering with another driver and following
another vehicle too closely, while attempting to capture any
type of visual image, sound recording, or other physical
impression of another person for a commercial purpose is
guilty of a misdemeanor punished by imprisonment of not more
than six months and by a fine of not more than $2,500.
Provides that a person who engages in such acts in a manner
that endangers a child or children shall be punished by
imprisonment of not more than one year and by a fine of not
more than $5,000.
The Senate amendments add the heightened penalties for reckless
driving with intent to capture the visual image, sound
recording, or other physical impression of another person.
EXISTING LAW :
1)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.
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2)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.
3)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
damages as is a person who commits a physical or constructive
invasion of privacy. These damages include treble the amount
of any general or special damages and punitive damages.
4)Provides that a person who engages in reckless driving shall
be punished by imprisonment in a county jail for not less than
five days or more than 90 days or by a fine of not less than
$145 or more than $1,000, or by both fine and imprisonment.
FISCAL EFFECT : Unknown
AS PASSED BY THE ASSEMBLY , this bill contained the provision
relating to false imprisonment.
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 AB 524 (Bass), Chapter 499, Statutes of 2009, this bill is
primarily an effort to curb the often aggressive tactics used by
paparazzi when attempting to capture images and recordings of
celebrities and their families.
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
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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 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, including
treble general and special damages, punitive damages, and other
forms of relief.
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 a bit 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, punitive
damages, and other forms or relief provided for in the invasion
of privacy statute.
Senate amendments : Existing law, under the Vehicle Code,
prohibits interfering with the driver of another vehicle in a
manner that affects the driver's control of the vehicle or
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following another vehicle too closely. In addition, existing
law provides that a person that engages in reckless driving -
defined as willful and wanton disregard for the safety of others
- shall be subject to a fine of between $145 and $1,000, or
imprisonment in a county jail for a period from five to 90 days,
or some combination of a fine and imprisonment. As amended in
the Senate this bill would make such violations a misdemeanor,
subject to heightened fines and periods of imprisonment, if the
person commits the violations while attempting to capture a
visual image, sound recording, or other physical impression of
another person. Specifically, a person who commits such a
violation would be subject to imprisonment in county jail for
not more than six months and a fine of not more than $2,500. A
person who commits this violation in a manner that endangers a
child or children is subject to imprisonment of not more than
one year and a fine of not more than $5,000.
ARGUMENTS IN SUPPORT : According to the author, this bill is
intended to curb the reckless and dangerous lengths that
paparazzi will sometimes go in order to capture the image of
celebrities. Of particular concern is the practice of
surrounding a celebrity or the celebrity's vehicle in a manner
that does not permit an avenue of escape. In addition,
paparazzi have allegedly engaged in dangerous and high-speed
chases on the public highways in their efforts to capture
photographs. The author contends that this kind of behavior is
especially a problem in Los Angeles, with its high concentration
of stars and celebrities.
ARGUMENTS IN OPPOSITION : The California Newspaper Publishers
Association (CNPA) opposes this bill. First, CNPA notes that
even though this bill is intended to target the most egregious
acts of the paparazzi, "it will [nonetheless] create the
potential for extreme criminal penalties for members of the
mainstream press in transit to any number of emergency scenes or
any scene in which news is happening." Although mainstream news
teams traveling as quickly as possible to breaking news events
may not be seeking to capture an image of "another person" for a
"commercial purpose" in the manner that gives rise to this bill,
it is nonetheless possible that such activity could be construed
to include a legitimate news gathering team. Whether or not the
author intends to cover this kind of activity, the language in
this bill will have a "chilling effect." Second, CNPA contends
that this bill unfairly singles out journalists. CNPA believes
that an employee of a newspaper, like any other citizen, should
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be punished for reckless driving, but journalists should not be
subject to extreme penalties and liabilities just because they
are attempting to capture an image.
REGISTERED SUPPORT / OPPOSITION :
Support
Paparazzi Reform Initiative
Opposition
California Newspaper Publishers Association
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334