BILL ANALYSIS
AB 2479
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 2479 (Bass)
As Amended August 20, 2010
Majority vote
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|ASSEMBLY: |56-16|(June 3, 2010) |SENATE: |21-13|(August 27, |
| | | | | |2010) |
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|COMMITTEE VOTE: |7-3 |(August 30, 2010) |RECOMMENDATION: | concur |
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Original Committee Reference: JUD.
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.
AB 2479
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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.
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
treble 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.
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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 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
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
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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.
Senate amendments: Existing law, under the Vehicle Code, prohibits
interfering with the driver of another vehicle in such a manner
that affects the driver's control of the vehicle or following
another vehicle too closely. In addition, existing law provides
that a person, who 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 committing these 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.
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.
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Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0006862