Bill Text: CA AB524 | 2009-2010 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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-Amended.html

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BILL NUMBER: AB 524	AMENDED
	BILL TEXT

	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, as amended, 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 sale, transmission, publication, broadcast, or use of
an image or recording if the person sold, transmitted, published,
broadcast, or used any image or recording of the type described in
the provision above with actual knowledge the images or recordings
were obtained illegally and provided compensation, consideration, or
remuneration, monetary or otherwise, for the use of, or rights to,
the unlawfully obtained images or recordings. 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
 bring a civil action in the name of the people whenever that
attorney has reasonable cause to believe that a violation of these
provisions has occurred   recover those civil fines, as
specified  . The bill would specify the allocation of the fines
collected pursuant to the foregoing provision, including  1/3
  1/2  to the prosecuting agency  and
  1/3   to the victim or the victim'
s designated recipient  . The bill would also establish the
Arts and Entertainment Fund in the State Treasury for the deposit of
 1/3   1/2  of the fines, for expenditure
by the California Arts Council, upon appropriation by the
Legislature, as specified.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


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, instigates, induces, or
otherwise 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) Sale, transmission, publication, broadcast, or use of any
image or recording of the type, or under the circumstances, described
in this section shall not itself constitute a violation of this
section, unless the person sold, transmitted, published, broadcast,
or used any image or recording of the type described in this section
with actual knowledge the images or recordings were obtained
illegally and provided compensation, consideration, or remuneration,
monetary or otherwise, for the use of, or rights to, the unlawfully
obtained images or recordings. 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, the suspected
violation of any administrative rule or regulation, a suspected
fraudulent insurance claim, or any other suspected fraudulent conduct
or activity involving a violation of law or pattern of business
practices adversely affecting the public 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
  "Personal and familial activity"  does not
include illegal or otherwise criminal activity as delineated in
subdivision (f). 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 county counsel or city attorney may bring a civil action
in the name of the people to obtain any or all appropriate relief,
whenever the county counsel or city attorney has reasonable cause to
believe that a violation of this section has occurred.  

   (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-third   One-half  shall be
allocated to the prosecuting agency.
   (B)  One-third   One-half  shall be
deposited in the Arts and Entertainment Fund, which is hereby created
in the State Treasury. 
   (C) One-third shall be allocated to the victim or the victim's
designated recipient. The designated recipient may be the prosecuting
agency, the Arts and Entertainment Fund, or a nonprofit, tax-exempt
charitable organization qualified under Section 501(c)(3) of the
Internal Revenue Code. 
   (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.