Bill Text: CA AB524 | 2009-2010 | Regular Session | Chaptered
Bill Title: Privacy.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Passed) 2009-10-11 - Chaptered by Secretary of State - Chapter 449, Statutes of 2009. [AB524 Detail]
Download: California-2009-AB524-Chaptered.html
BILL NUMBER: AB 524 CHAPTERED
BILL TEXT
CHAPTER 449
FILED WITH SECRETARY OF STATE OCTOBER 11, 2009
APPROVED BY GOVERNOR OCTOBER 11, 2009
PASSED THE SENATE SEPTEMBER 8, 2009
PASSED THE ASSEMBLY SEPTEMBER 10, 2009
AMENDED IN SENATE SEPTEMBER 2, 2009
AMENDED IN SENATE JULY 23, 2009
AMENDED IN SENATE JUNE 29, 2009
AMENDED IN ASSEMBLY MAY 19, 2009
AMENDED IN ASSEMBLY APRIL 29, 2009
INTRODUCED BY Assembly Member Bass
(Principal coauthor: Assembly Member Davis)
FEBRUARY 25, 2009
An act to amend Section 1708.8 of the Civil Code, relating to
privacy.
LEGISLATIVE COUNSEL'S DIGEST
AB 524, Bass. Privacy.
Existing law provides that a person is liable for constructive
invasion of privacy when the defendant attempts to capture, in a
manner that is offensive to a reasonable person, or knowingly
trespasses or commits assault with the intent to capture, as
specified, any type of visual image, sound recording, or other
physical impression of the plaintiff 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, as specified. The person who commits the
act is liable for up to 3 times the amount of general and special
damages, and may be liable for punitive damages. However, the sale,
transmission, publication, broadcast, or use of any image or
recording of the type, or under the circumstances, described does not
itself constitute a violation of that provision.
This bill would create an exception to the latter provision
regarding the first sale, offer for sale, transmission, publication,
broadcast, or other use of any visual image, sound recording, or
other physical impression, if the person sold, transmitted,
published, broadcast, or used any image or recording of the type
described in the provision above with actual knowledge, as defined,
that the images or recordings were obtained in violation of specified
provisions and provided compensation, consideration, or
remuneration, monetary or otherwise, for the rights to the unlawfully
obtained visual image, sound recording, or other physical
impression. The bill would specify that those provisions apply only
to a visual image, sound recording, or other physical impression that
is captured or taken in California after January 1, 2010. The bill
would also make technical changes.
The bill would provide that a person who violates the provisions
described above, or who directs, solicits, actually induces, or
actually causes another person to violate any of those provisions
would be subject to a civil fine of not less than $5,000 and not more
than $50,000.
The bill would authorize a county counsel or a city attorney to
recover those civil fines, as specified. The bill would specify the
allocation of the fines collected pursuant to the foregoing
provision, including 1/2 to the prosecuting agency. The bill would
also establish the Arts and Entertainment Fund in the State Treasury
for the deposit of 1/2 of the fines, for expenditure by the
California Arts Council, upon appropriation by the Legislature, as
specified.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) Individuals and their families have been harassed and
endangered by being persistently followed or chased in a manner that
puts them in reasonable fear of bodily injury, and in danger of
serious bodily injury or even death, by photographers, videographers,
and audio recorders attempting to capture images or other
reproductions of their private lives for commercial purposes.
(b) The legitimate privacy interests of individuals and their
families have been violated by photographers, videographers, and
audio recorders who physically trespass in order to capture images or
other reproductions of their private lives for commercial purposes,
or who do so constructively through intrusive modern visual or
auditory enhancement devices, such as powerful telephoto lenses and
hyperbolic microphones that enable invasion of private areas that
would otherwise be impossible without trespassing.
(c) Such harassment and trespass threaten not only professional
public persons and their families, but also private persons and
families for whom personal tragedies or circumstances beyond their
control create media interest.
(d) There is no right, under the United States Constitution or the
California Constitution, to persistently follow or chase another in
a manner that creates a reasonable fear of bodily injury, to
trespass, or to constructively trespass through the use of intrusive
visual or auditory enhancement devices.
(e) The right to privacy and respect for private lives of
individuals and their families must be balanced against the right of
the media to gather and report the news. The right of a free press to
report details of an individual's private life must be weighed
against the rights of the individual to enjoy liberty and privacy.
SEC. 2. Section 1708.8 of the Civil Code is amended to read:
1708.8. (a) A person is liable for physical invasion of privacy
when the defendant knowingly enters onto the land of another person
without permission or otherwise committed a trespass in order to
physically invade the privacy of the plaintiff with the intent to
capture any type of visual image, sound recording, or other physical
impression of the plaintiff engaging in a personal or familial
activity and the physical invasion occurs in a manner that is
offensive to a reasonable person.
(b) A person is liable for constructive invasion of privacy when
the defendant attempts to capture, in a manner that is offensive to a
reasonable person, any type of visual image, sound recording, or
other physical impression of the plaintiff 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 is a physical
trespass, if this image, sound recording, or other physical
impression could not have been achieved without a trespass unless the
visual or auditory enhancing device was used.
(c) An assault committed with the intent to capture any type of
visual image, sound recording, or other physical impression of the
plaintiff is subject to subdivisions (d), (e), and (h).
(d) A person who commits any act described in subdivision (a),
(b), or (c) is liable for up to three times the amount of any general
and special damages that are proximately caused by the violation of
this section. This person may also be liable for punitive damages,
subject to proof according to Section 3294. If the plaintiff proves
that the invasion of privacy was committed for a commercial purpose,
the defendant shall also be subject to disgorgement to the plaintiff
of any proceeds or other consideration obtained as a result of the
violation of this section. A person who comes within the description
of this subdivision is also subject to a civil fine of not less than
five thousand dollars ($5,000) and not more than fifty thousand
dollars ($50,000).
(e) A person who directs, solicits, actually induces, or actually
causes another person, regardless of whether there is an
employer-employee relationship, to violate any provision of
subdivision (a), (b), or (c) is liable for any general, special, and
consequential damages resulting from each said violation. In
addition, the person that directs, solicits, actually induces, or
actually causes another person, regardless of whether there is an
employer-employee relationship, to violate this section shall be
liable for punitive damages to the extent that an employer would be
subject to punitive damages pursuant to subdivision (b) of Section
3294. A person who comes within the description of this subdivision
is also subject to a civil fine of not less than five thousand
dollars ($5,000) and not more than fifty thousand dollars ($50,000).
(f) (1) The transmission, publication, broadcast, sale, offer for
sale, or other use of any visual image, sound recording, or other
physical impression that was taken or captured in violation of
subdivision (a), (b), or (c) shall not constitute a violation of this
section unless the person, in the first transaction following the
taking or capture of the visual image, sound recording, or other
physical impression, publicly transmitted, published, broadcast, sold
or offered for sale, the visual image, sound recording, or other
physical impression with actual knowledge that it was taken or
captured in violation of subdivision (a), (b), or (c), and provide
compensation, consideration, or remuneration, monetary or otherwise,
for the rights to the unlawfully obtained visual image, sound
recording, or other physical impression.
(2) For the purposes of paragraph (1), "actual knowledge" means
actual awareness, understanding, and recognition, obtained prior to
the time at which the person purchased or acquired the visual image,
sound recording, or other physical impression, that the visual image,
sound recording, or other physical impression was taken or captured
in violation of subdivision (a), (b), or (c). The plaintiff shall
establish actual knowledge by clear and convincing evidence.
(3) Any person that publicly transmits, publishes, broadcasts,
sells or offers for sale, in any form, medium, format or work, a
visual image, sound recording, or other physical impression that was
previously publicly transmitted, published, broadcast, sold or
offered for sale, by another person, is exempt from liability under
this section.
(4) If a person's first public transmission, publication,
broadcast, or sale or offer for sale, of a visual image, sound
recording, or other physical impression that was taken or captured in
violation of subdivision (a), (b), or (c), does not constitute a
violation of this section, that person's subsequent public
transmission, publication, broadcast, sale or offer for sale, in any
form, medium, format or work, of the visual image, sound recording,
or other physical impression, does not constitute a violation of this
section.
(5) This section applies only to a visual image, sound recording,
or other physical impression that is captured or taken in California
in violation of subdivision (a), (b), or (c) after January 1, 2010,
and shall not apply to any visual image, sound recording, or other
physical impression taken or captured outside of California.
(6) Nothing in this subdivision shall be construed to impair or
limit a special motion to strike pursuant to Section 425.16, 425.17,
or 425.18 of the Code of Civil Procedure.
(7) This section shall not be construed to limit all other rights
or remedies of the plaintiff in law or equity, including, but not
limited to, the publication of private facts.
(g) This section shall not be construed to impair or limit any
otherwise lawful activities of law enforcement personnel or employees
of governmental agencies or other entities, either public or private
who, in the course and scope of their employment, and supported by
an articulable suspicion, attempt to capture any type of visual
image, sound recording, or other physical impression of a person
during an investigation, surveillance, or monitoring of any conduct
to obtain evidence of suspected illegal activity or other misconduct,
the suspected violation of any administrative rule or regulation, a
suspected fraudulent conduct, or any activity involving a violation
of law or business practices or conduct of public officials adversely
affecting the public welfare, health or safety.
(h) In any action pursuant to this section, the court may grant
equitable relief, including, but not limited to, an injunction and
restraining order against further violations of subdivision (a), (b),
or (c).
(i) The rights and remedies provided in this section are
cumulative and in addition to any other rights and remedies provided
by law.
(j) It is not a defense to a violation of this section that no
image, recording, or physical impression was captured or sold.
(k) For the purposes of this section, "for a commercial purpose"
means any act done with the expectation of a sale, financial gain, or
other consideration. A visual image, sound recording, or other
physical impression shall not be found to have been, or intended to
have been captured for a commercial purpose unless it is intended to
be, or was in fact, sold, published, or transmitted.
(l) For the purposes of this section, "personal and familial
activity" includes, but is not limited to, intimate details of the
plaintiff's personal life, interactions with the plaintiff's family
or significant others, or other aspects of the plaintiff's private
affairs or concerns. "Personal and familial activity" does not
include illegal or otherwise criminal activity as delineated in
subdivision (g). However, "personal and familial activity" shall
include the activities of victims of crime in circumstances under
which subdivision (a), (b), or (c) would apply.
(m) (1) A proceeding to recover the civil fines specified in
subdivision (d) or (e) may be brought in any court of competent
jurisdiction by a county counsel or city attorney.
(2) Fines collected pursuant to this subdivision shall be
allocated, as follows:
(A) One-half shall be allocated to the prosecuting agency.
(B) One-half shall be deposited in the Arts and Entertainment
Fund, which is hereby created in the State Treasury.
(3) Funds in the Arts and Entertainment Fund created pursuant to
paragraph (2) may be expended by the California Arts Council, upon
appropriation by the Legislature, to issue grants pursuant to the
Dixon-Zenovich-Maddy California Arts Act of 1975 (Chapter 9
(commencing with Section 8750) of Division 1 of Title 2 of the
Government Code).
(4) The rights and remedies provided in this subdivision are
cumulative and in addition to any other rights and remedies provided
by law.
(n) The provisions of this section are severable. If any provision
of this section or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.
