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Hawaii follows in California’s footsteps in proposing new anti-paparazzi law

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Photo by Pacific Coast News Steven Tyler, seen here in Maui, wants to be able to sue photographers for taking…

Photo by Pacific Coast News

Steven Tyler, seen here in Maui, wants to be able to sue photographers for taking unwanted pictures.

Steven Tyler is certainly not camera shy. The aging Aerosmith frontman and former “American Idol” judge memorably stripped to his underwear on the set of that talent show before plopping into a pool of water.

About a year ago, a British newspaper published unflattering photos of the 64-year-old Tyler walking the beaches of Maui not far from his recently purchased home in nothing but camouflage Speedos and some beaded jewelry while holding a pair of snorkeling flippers.

But not all photo ops are created equal, apparently.

Tyler is the force behind the new anti-paparazzi bill being pushed in the Hawaii Legislature. State senators plan to model the bill — Senate Bill 465, dubbed “the Steven Tyler Act” — on similar legislation enacted in California. The proposed privacy law would give celebrities the right to sue photographers for taking unwanted photographs.

The proposed anti-paparazzi law is the latest legislation seeking to limit how, when and where photographers snap images of celebrities. Many of those laws have been centered in California, where in 1999 the state first passed an invasion of privacy statute directed specifically at paparazzi activity. The new Hawaii bill comes in the wake of several high-profile confrontations involving musicians Justin Bieber and Chris Brown and just as a California appellate court prepares to evaluate the constitutionality of a recently written photography law in the state’s vehicle code.

Earlier this month, a state Senate judiciary committee approved an amended version of the Hawaii bill.

As written, the proposed legislation gives celebrities broad leeway to seek both monetary damages and injunctions against publication. State senators have promised to reign in the bill’s broad reach, which has evoked objections from both local and national media organizations, the Motion Picture Association of America and Hawaiian Attorney General David Louie.

“We think this is a terrible piece of legislation,” said Frank Bridgewater, a vice president and editor of the Honolulu Star-Advertiser, the state’s largest paper by circulation. “The biggest problem we see is that it’s way too vague and broad. If Steven Tyler comes to a courthouse after a hearing, can we not take a picture of him for a legitimate news reason?”

Both local and national publications have written editorials calling on state politicians to rethink their support of the bill.

Lee Imada, managing editor of The Maui News, said that while reports of paparazzi pursuing notable island-goers do occasionally occur, such incidents are not as commonplace as in California.

“Historically, the residents of Maui have left celebrities alone,” Imada wrote in an e-mail interview. “In fact, they are treated as regular folk. . . . Some celebrities have even sent their children to the public school in Hana (on the eastern edge of Maui) and been active members of the community.”

However, in a more egregious example, Imada noted that overzealous photographers were responsible for forcing Sarah Palin and her family to move out of a local hotel a few years back.

Star-struck legislators?

Despite criticism of the bill, nearly two-thirds of the state’s senators have signed onto the legislation. The original six-page draft was sponsored by state Sen. J. Kalani English of Maui and largely written by Tyler’s attorney, Dina LaPolt.

The first paragraph of the bill makes clear its aim is protecting the privacy of celebrities: “Although their celebrity status may justify a lower expectation of privacy, the legislature finds that sometimes the paparazzi go too far to disturb the peace and tranquility afforded celebrities who escape to Hawai’i for a quiet life.

“The purpose of this Act is to encourage celebrities to visit and reside in our State by creating a civil cause of action for the constructive invasion of privacy.”

The proposed legislation gives celebrities the right to sue to collect general, special and punitive damages from photographers who take either visual or sound recordings “in a manner that is offensive to a reasonable person” or while the subjects are “engaging in personal or familial activity with a reasonable expectation of privacy.”

An element of the bill which is drawing vocal objections is a provision that allows the subjects of unwanted photographs to ask the court for “equitable relief, including but not limited to an injunction and restraining order against further violation of this section.”

Hawaii media law attorney Jeffrey Portnoy says many of the privacy protections sought by Tyler are already afforded by present state law. Further, the vague wording of the new legislation could have unintended consequences for tourists, for instance, hoping to snap a quick photo of a celebrity taking the family out onto one of the state’s public beaches.

“As drafted, this bill applies equally to a tourist as it does to a paparazzi,” Portnoy said. “And it could significantly impede the right of journalists to do their jobs. This is nothing to me but a celebrity suck-up bill. Just read the preamble. It’s a joke.”

Celebrities lending their names

Yet despite the criticisms of the bill, the state Senate Committee on Judiciary and Labor took a major first step on Feb. 8 in passing the anti-paparazzi bill, setting up a vote before the full Senate.

More than a dozen celebrities, including Britney Spears, Neil Diamond and Avril Lavigne submitted written testimony with identical language supporting the bill. And in a packed committee hearing, Tyler — joined by Fleetwood Mac drummer Mick Fleetwood — explained to state senators that the motivation for the bill came in part because his children no longer want to go out in public with him because of the constant threat of photographers.

“This Christmas was the first time I got them all together in my house,” Tyler told committee members. “It meant so much to me and they don’t want to go out. I had enough of it.”

Yet despite the seemingly broad support by state legislators, both local and national media organizations also voiced their concerns over what they are calling a vague and ill-conceived measure.

The proposed bill “imposes civil penalties of alarming breadth and burdens substantially more speech than is necessary to advance a compelling government interest,” wrote Mickey Osterreicher, general counsel of the National Press Photographers Association in a letter opposing the bill that was also joined by 14 media organizations including the Reporters Committee for Freedom of the Press, the Society of Professional Journalists and the American Society of News Editors. “While we recognize the right of privacy, we oppose a broadening of those protections by abridging the clearly established tenets of First Amendment jurisprudence.”

Joining the media coalition was the Motion Picture Association of America, which argued that the bill violated both the First Amendment of the U.S. Constitution and the state’s own constitution, and would hurt the ability of the trade group’s membership to produce news and entertainment programming. The trade group also noted the lack of any exception in the privacy bill to monitoring police activities.

“We are concerned that, if this bill is enacted, legitimate investigations and law enforcement activities will be jeopardized,” according to the MPAA statement.

California law to be a model

Prior to passing the draft legislation, state senate committee members voted to limit the broad scope of the proposed legislation by limiting the activities protected by the new bill to those taking place on property owned or leased by the photo subject.

The committee also agreed to scrap any reference to fines, include exceptions in the bill for law enforcement, better define terms such as “personal and familial activities” and rewrite most of the bill with language similar to California’s anti-paparazzi legislation.

In 1999, California enacted an invasion of privacy statute directed specifically at paparazzi activity. The anti-paparazzi statute, Cal. Civ. Code Section 1708.8, has a broader reach in the activity that it targets than other state’s privacy laws.

The statute prohibits trespass onto another’s property “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” where it would be “offensive to a reasonable person.” The California standard is stricter than the traditional standard in privacy law, which protects individuals from actions that are “highly offensive to a reasonable person.”

The law also creates the right to sue for “constructive invasion of privacy,” or for engaging in the same activity described above under the statute, but without physically trespassing. Constructive invasion of privacy occurs when a defendant uses technology to capture images or sounds that would not have been otherwise accessible to them without trespassing.

Also under the statute, photographers can be held liable for committing an assault or false imprisonment for surrounding a celebrity and preventing them from moving while trying to capture images or recordings.

In addition, any “person who directs, solicits, actually induces, or actually causes another person” to engage in the activity prohibited by the paparazzi statute can also be held liable. The paparazzi statute imposes stiff penalties on violators — for example, after the court calculates a monetary award for the harm caused by the infringing activity, the court may then impose a judgment of up to three times that amount on a violator of the statute.

California’s vehicle code was also recently amended to include penalties for anyone who interferes with the driver of a vehicle, follows too closely or drives recklessly “with the intent to capture any type of visual image, sound recording or other physical impressions of another person for a commercial purpose.” California Vehicle Code Section 40008 allows longer jail sentences of up to six months, and steeper fines of up to $2,500, for reckless driving.

Recent developments in California anti-paparazzi laws

Hawaii’s state legislature did not discuss whether it would specifically incorporate California’s vehicle code amendments into its new anti-paparazzi legislation.

However, the constitutionality of that legislation is central to two recent California state court decisions. Following a 2012 car chase involving pop singer Justin Bieber and a paparazzo, a Los Angeles prosecutor invoked the statute for the first time against photographer Paul Raef.

Authorities accused Raef of pursuing Bieber in a high-speed chase to snap his photos. The trial judge ruled that the 2010 law was overly broad and violated the First Amendment.

In January, a three-judge California appellate court panel asked Superior Court Judge Thomas Rubinson to reconsider his decision to dismiss two charges against Raef under California’s anti-paparazzi law.

The appellate court panel indicated in a Jan. 28 filing that the California law was constitutional. Judge Rubinson, however, declined to reconsider his ruling dismissing the charges, according to media reports, which will likely trigger a review before the full appeals court.

The California court rulings come in the wake of two high-profile incidents involving paparazzi. In February, singer Chris Brown totaled his Porsche after attempting to evade paparazzi in two vehicles that were chasing him.

Bieber has been particularly vocal in urging lawmakers and police to crack down on overzealous celebrity photographers. Last July, Bieber was also involved in a high-speed chase involving paparazzi that ended after a California Highway Patrol officer stopped Bieber and cited him for speeding. And in January, photographer Chris Guerra was killed in traffic after taking pictures of Bieber’s Ferrari. 

Nevertheless, media advocacy organizations hope the legislation in Hawaii is significantly pared back or dropped altogether.

“The First Amendment has permitted restrictions on a few historic categories of speech, including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct,” Osterreicher, the National Press Photographer’s Association attorney, wrote in the letter.

“Visual images, sound recordings, or other physical impressions of another person who is out in public where there is no reasonable expectation of privacy should not be added to that list.”