The New Tax on Invasion of Celebrities' Privacy

FREE PRESS — AB 524 (Bass), the new amendment to California's Paparazzi Law that takes effect as of January 1, will not stop and will probably not even slow the most invasive and aggressive photographic pursuit of Hollywood celebrities. But it does effectively create a tax on the sale of the photos, split between local and state governments, without ever using the t-word.

Previous elements of the Paparazzi Law provide that a person is liable in a civil suit for damages for "constructive invasion of privacy" when he or she "attempts to capture, in a manner that is offensive to a reasonable person, or knowingly trespasses or commits assault 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 under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device . . ." For example, use of a telephoto lens to photograph a family bathing in their backyard hot tub from a vantage point off the property might qualify. The defendant is liable for up to three times the amount of general and special damages, and may be liable for punitive damages. But the later sale, transmission, publication, broadcast, or use of any such image or recording has not previously constituted a violation of this provision.

This bill removes that limitation if a person sold, transmitted, published, broadcast, or used any image or recording of the type described in the provision above with "actual knowledge" that the images or recordings had been obtained in violation of this law and provided compensation, consideration, or remuneration for the rights to the unlawfully obtained image, recording, or other physical impression captured or taken in California. A person who violates these knowing purchase and use provisions or who directs, solicits, induces, or causes another person to violate those provisions would be subject to a civil fine of from $5,000 to $50,000.

The bill authorizes a county counsel or a city attorney to sue for those civil fines, keeping half of any fines recovered and forwarding the other half to the state treasury for use by the California Arts Council.

Comment: Nothing in the final version of the bill changes Californians Aware's skepticism, expressed to the author when it was first introduced.

Californians
Aware opposes AB 524, which as amended yesterday would tempt—with cash
bounties—a few city attorneys and county counsel to get into the
business of regulating what may or may not be authentic news gathering,
and in doing so, probing into journalistic communications in a manner
precluded by the California Constitution.

For a variety of
reasons, it is unlikely that government enforcement of the desires of
celebrities for privacy would be any more effective than the current
private action remedies. Since the paparazzi law was first enacted more
than 10 years ago there does not appear to be a single case of its
successful use by an offended plaintiff in recovering damages from
either intrusive photo, audio or video stalkers or those who assign or
reward them—despite the law’s provisions for recovery of general
damages, special damages, treble damages, punitive damages and
disgorgement of profits from sales.  Not even the assault cause of
action added in recent years—described by then Los Angeles Police Chief
William Bratton at the time as unnecessary—has made a difference.

Against
this background, AB 524 turns to local government lawyers, with no
experience in litigating issues of constitutionally protected
information-gathering but with clients repeatedly under scrutiny and
criticism by newspapers, broadcasters and public affairs bloggers, to
pursue the complaints of a tiny handful of entertainment
personalities.  In case those complaints are not, in the context of the
resource famine facing cities and counties at present, sufficiently
pressing to warrant enforcement attention, the bill offers them and the
offended individuals a split-the-bounty incentive matched with a state
arts fund share.

Once embarked on a civil action, a government
prosecutor would inevitably need to prove the scienter element of the
violation in proposed subdivision (f), in order to show that the
editor, publisher or broadcaster of the offending material—the one with
the substantial profits—had acquired it “with actual knowledge the
images or recordings were obtained illegally,” and would subpoena him
or her or the paparazzo involved, or both, for testimony, or for
records illuminating that issue. Indeed the prosecutor might be tempted
to subpoena these persons not only for scienter evidence but
for evidence of facts showing that a violation had occurred in the
first place—for example discussions of where the journalist was
positioned, or what technology he or she was using, or when the
protected images or sounds were captured.

A subpoena of this
kind would collide directly with subdivision (b) of Section 2 of
Article I of the California Constitution, which states in pertinent
part that an information gatherer, editor or publisher employed or
otherwise “connected with” a periodical publication (interpreted by the
Court of Appeal as including a specialized news website)

In
short, AB 524 would leave the paparazzi statute no more realistically
enforceable than it has proved to be over the past 11 years. But it
would transfer the costs of failed litigation to the taxpayer.  And
litigation for whom?  The legal interests of tabloid-bait celebrities
are almost certain to be exposed to much greater injury in the areas of
business or matrimonial relations than in unwanted publicity.  Is the
vindication of those legal interests to be shifted to the public purse
as well?

One blogger reports that author Bass, the Los Angeles Democrat who was then Assembly  Speaker, got the idea for the bill from an actress upset that a photo of her topless had been published, and who settled a lawsuit against the photographer for $550,000.  That kind of lawsuit could have succeeded on common law grounds, with no "paparazzi law" required.

Even with the knowing use penalty effective this week, and even assuming both the offending paparazzo and the person who bought his illegally obtained product were each fined the maximum $50,000, that amount would hardly put a dent in a market where celebrity photos can be worth a million dollars or more.  The new provision thus creates a tax on the invasion of privacy, but does little to stop it. 

Media lawyers have long recognized that the original California paparazzi legislation added nothing substantive to the privacy protection well-settled under common law tort actions, but on the other hand embodied the kind of constitutional defects typical of the worst attempts at regulation of the press: absence of a compelling governmental interest, vagueness, and overbreadth.  The new legislation does nothing to address these faults; it simply attempts to see that if they are overcome and a successful case is ever made for the unlawfulness of trafficking in such ill-gotten images, the government can get a taste.