BILL ANALYSIS �
AB 1356
Page 1
Date of Hearing: January 14, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 1356 (Bloom) - As Amended: January 6, 2014
As Proposed to be Amended
SUBJECT : Stalking: Place Under Surveillance
KEY ISSUE : Should the existing statutory tort of "stalking" be
expanded to include a pattern of conduct intended to place
another person "under surveillance," so long as all of the other
essential elements of the tort remain in place?
SYNOPSIS
This bill is one of two before the Committee which seek to
protect persons from the sometimes aggressive behavior of the
paparazzi. Several similar bills have come before this
Committee in recent years, most of which have tried in one way
or another to draw a line between the inappropriate behavior of
the most aggressive paparazzi, on the one hand, and reasonable
and legitimate newsgathering efforts, on the other. This bill
reflects a modest and seemingly measured attempt to modify the
existing civil "stalking" statute to include certain forms of
"surveillance" that are sometimes used by the paparazzi.
Specifically, existing law defines "stalking" as a pattern of
conduct that is intended to "follow, alarm, or harass" another
person. This bill would add to that list any forms of conduct
that are intended to place another person "under surveillance,"
which in turn is defined as remaining outside of another
person's home, school, or workplace with no legitimate purpose.
In order to prevail under the existing anti-stalking statute, a
plaintiff 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 retain these same elements, with
some minor revisions that are discussed in the analysis. The
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bill is sponsored by the Paparazzi Reform Initiative. It is
opposed by the California Newspapers Association and the
National Press Photographers Association, who claim that the
bill will have a chilling effect on legitimate newsgathering.
The following summary and analysis reflect amendments that the
author will take in this Committee.
SUMMARY : Amends the existing statute that creates the civil
tort of "stalking" to include within the definition of
"stalking" a pattern of conduct that is intended to place
another person under "surveillance," as defined. 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 that such
surveillance would only create liability if the plaintiff
could also prove that (a) the conduct placed the plaintiff in
reasonable fear for his or her safety, or the safety of an
immediate family member, or, alternatively, caused the
plaintiff substantial emotional distress; (b) as part of the
conduct the defendant made a credible threat, as defined, to
the plaintiff or a member of his or her immediate family; and
(c) 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 of the plaintiff's school, place of employment,
vehicle, residence, other than the residence of the defendant,
or other place occupied by the plaintiff. Specifies that
"place under surveillance" does not include any lawful
activity of licensed private or public investigators or law
enforcement personnel who, within the course of their
employment, are attempting to obtain evidence of suspected
illegal activity or other misconduct, as described. Specifies
also that "place under surveillance" does not include any
newsgathering conduct temporally connected to a newsworthy
event.
3)Defines "follows" to mean to move in relative proximity to a
person as that person moves from place to place or to remain
in relative proximity to a person who is stationary or whose
movements are confined to a small area but does not include
following the plaintiff within the residence of the defendant.
Specifies that "place under surveillance" does not include
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any lawful activity of licensed private or public
investigators or law enforcement personnel who, within the
course of their employment, are attempting to obtain evidence
of suspected illegal activity or other misconduct, as
described. Specifies also that "place under surveillance"
does not include any newsgathering conduct temporally
connected to a newsworthy event.
EXISTING LAW :
1)Makes a person liable for the tort of stalking when the
plaintiff proves all of the following elements: (a) the
defendant engaged in a pattern of conduct with the intent to
follow, alarm, or harass the plaintiff; (b) as a result of
that conduct, the plaintiff reasonably feared for his or her
safety, or the safety of an immediate family member; (c) 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 that 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" to mean a verbal or written threat,
including an electronic communication, or a 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)Defines "pattern of conduct" to mean conduct composed of a
series of acts over a period of time, however, short,
evidencing a continuity of purpose. Specifies that
constitutionally protected activity is not included within the
meaning of "pattern of conduct." (Civil Code Section 1708.7
(b)(1).)
4)Permits a person who has suffered harassment to obtain a
temporary restraining order or injunction, as specified,
against the person who engaged in the harassment. Defines the
course of conduct that constitutes harassment to include
following or stalking an individual. (Code of Civil Procedure
Section 527.6.)
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FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : This bill is one of two before the Committee today
that seek to protect celebrities from the sometimes aggressive
behavior of the paparazzi. Several similar bills have come
before this Committee in recent years, most of which have tried
in one way or another to draw a line between the inappropriate
behavior of the most aggressive paparazzi, on the one hand, and
reasonable and legitimate newsgathering efforts, on the other.
These bills have sought to balance the reasonable privacy
interests of celebrities and their families against the public's
seemingly insatiable desire for images of their favorite stars.
To say the least, finding the proper place to draw that line
legislatively has been challenging.
This bill - like many previous bills - is sponsored by the
Paparazzi Reform Initiative. Past efforts to address the
paparazzi problem have typically attempted to expand existing
statutes that create civil liability - for invasion of privacy,
stalking, harassment, or some other actionable conduct - to
expressly include efforts to capture a person's image or voice
in an offensive, harassing, threatening, or dangerous manner.
This bill takes a somewhat different approach, as it does not
expressly mention attempts to capture a visual image or sound
recording. Instead, this bill reflects a modest and seemingly
measured attempt to modify the existing civil "stalking"
statute, so as to extend liability to forms of "surveillance"
sometimes used by the paparazzi.
Specific Changes to Existing Law: Bill Does Not Make
"Surveillance" an Independent Basis of Liability . Existing law
defines "stalking" as a pattern of conduct that is intended to
"follow, alarm, or harass" another person. This bill would add
to that list forms of conduct that are intended to place another
person "under surveillance," which in turn is defined as
remaining outside of another person's home, school, or workplace
with no legitimate purpose. In order to prevail under the
existing anti-stalking statute, a plaintiff must prove all the
following elements: (1) 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) the
defendant made a credible threat with the intent to place the
plaintiff (or family member) in such fear. In addition,
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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.
While this bill expands what constitutes "stalking" to include
placing a person under surveillance, it nonetheless retains
essentially the same elements necessary to establish liability.
The most significant difference in the elements is that, whereas
existing law requires, as one element, that the pattern of
conduct placed the plaintiff in fear of his or her safety (or
the safety of an immediate family member), this bill would,
alternatively, meet this one element if the plaintiff suffered
"substantial emotional distress" as a result of the pattern of
conduct. However, this expansion is not as great as it may
seem. While a plaintiff under this bill could substitute
"substantial emotional distress" for "fear for his or her
safety," the plaintiff would still need to meet all of the other
required elements of the tort to establish liability. It would
not be enough that the surveillance caused substantial emotional
distress. It would also require, for example, that the
defendant made a "credible threat" that placed the plaintiff in
fear for his or her safety AND the plaintiff must still have, on
at least one occasion, "clearly and definitively," but
unsuccessfully, demanded that the defendant cease the activity.
Because there has been some confusion on this point in the past,
it should be stressed that the bill does not make placing a
person under surveillance, and nothing more, an independent
basis for civil liability. The surveillance must still meet all
of the other elements of stalking, as set forth in the statute.
Adding "surveillance" simply makes it clear that stalking does
not literally require "following" a person, if that term, as
commonly understood, means staying in close proximity to another
person as that person moves from place to place. According to
many reports, the paparazzi often wait outside of a home,
school, or workplace waiting for celebrities to come and go.
This stationary waiting might not involve "following" the
plaintiff, but it might nevertheless be a source of substantial
emotional distress if hordes of paparazzi are constantly camped
outside of the plaintiff's home.
ARGUMENTS IN SUPPORT : According the Paparazzi Reform Initiative
(PRI), this bill amends California's civil stalking law "to
provide much needed protections for those who are placed in
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serious emotional distress by unauthorized and overt
surveillance." PRI contends that the existing statute is
inadequate on a number of grounds, but especially the
requirement that the stalking victim must be placed in fear of
physical harm. However, PRI believes that stalking victims
should also be protected from the kinds of psychological harm
that can be caused by persistent and overt surveillance - even
though such surveillance might not literally entail following a
person or rise to the level of a physical threat. PRI believes,
therefore, that this bill "reflects a growing trend among a
majority of the United State to recognize substantial emotional
distress as a valid harm against which stalking laws should
protect, and unauthorized surveillance as an activity from which
individuals should be shielded."
ARGUMENTS IN OPPOSITION : The California Newspaper Publishers
Association (CNPA) opposes this bill because it
unconstitutionally expands the definition of "stalking" and
thereby increases liability for legitimate newsgathering
activity. CNPA contends that many of the newsgathering
activities that this bill will affect occur "in public places
where a person normally has no reasonable expectation of
privacy." CNPA believes that the language in the bill is
"overly broad, vague, and infringes upon legitimate forms of
protected speech." As for the recent amendments carving out an
exception for "any newsgathering conduct temporarily connected
to a newsworthy event," CNPA claims that "it is entirely unclear
what this phrase means or why it is included in the definition."
[ Staff note : It was apparently included in the definition to
address previously expressed concerns that the bill would hamper
the efforts of legitimate newsgatherers.]
CNPA's larger objection, however, is that this bill is yet
another attempt to expand upon the anti-paparazzi law that was
passed thirteen years ago in an effort to subjected
photographers to liability for "constructive" trespass if they
infringed upon someone's reasonable expectations of privacy in
an offensive manner. CNPA opposed the original legislation as a
violation of the First Amendment, and it continues to oppose
efforts to expand it.
Finally, CNPA notes that while this bill will have a chilling
effect on free speech, it "will not deter the extreme and often
dangerous conduct in which an increasingly large contingent of
paparazzi engages." CNPA claims that it is not aware of any
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plaintiff who has successfully sued the paparazzi under the laws
already in place. CNPA fears that the bill, if enacted, will
merely make it more difficult for responsible newsgatherers to
figure out "how to do their job . . . in a manner that avoids
legal exposure," while "the societal ill the law intends to
correct - out of control paparazzi - continues unabated."
The National Press Photographers Association (NPPA) opposes this
bill for many of the same reasons offered by the CNPA. NPPA
believes that expanding the stalking statute in the manner
proposed "blatantly impairs constitutionally protected press and
speech activity," and it far exceeds the police powers of the
state. Finally NPPA argues, citing the U.S. Supreme Court
decision in Branzburg v. Hayes (1972), that freedom of the press
includes not only the right to publish the news, but by
extension requires protecting the means of "seeking out the
news."
PROPOSED AUTHOR AMENDMENTS : The author wishes to take the
following amendments in this Committee. These amendments are
already reflected in the bill summary and analysis.
Amendment #1
- On page 4 line 20 replace "temporarily" with
"temporally."
[This amendment is intended to correct a typographical error as
well as to clarify that newsgathering for a newsworthy event
must be connected in time with the happening of that event; that
is, one cannot continue to gather news at a particular place
just because a newsworthy event had once occurred there.]
Amendment #2
- On page 3 line 36 after "defendant" insert:
For purposes of the liability created by subdivision (a),
"follows "does not include any lawful activity of private
investigators licensed pursuant to Article 3 (commencing with
Section 7520) of Chapter 11.3 of Division 3 of the Business and
Professions Code, or 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
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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. For purposes of the
liability created by subdivision (a), "follows" also does not
include any newsgathering conduct temporally connected to a
newsworthy event.
REGISTERED SUPPORT / OPPOSITION :
Support
Paparazzi Reform Initiative (sponsor)
Opposition
California Newspaper Publishers Association
National Press Photographers Association
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334