An extreme example: The California anti-paparazzi laws

August 1, 2012

In 1999 California passed into law an invasion of privacy statute directed specifically at paparazzi activity. The anti-paparazzi statute, Cal. Civ. Code § 1708.8, has a broader reach in the activity that it targets than other state’s privacy laws — and tape-recording activities can create risks under this statute.

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, one provision makes committing an assault or false imprisonment to obtain the same images or recordings, described by the statute, also subject to the statute’s penalties — to target the behavior of paparazzi when they surround a celebrity and prevent them from moving.

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.

In 2002, R. Shaun Carter, who was filmed in the emergency room at a hospital in San Diego where he was being treated, sued the New York Times Co. and Discovery Communications Inc. under the anti-paparazzi law. The California state court said that the two companies could not use California’s anti-SLAPP statute as a defense against Carter’s claim.

Carter argued that although he had signed a consent form with the New York Times reporter who videotaped him, he had been deliberately misled by the reporter. The reporter had been dressed like hospital staff, and Carter argued that he had been deceived into thinking that the video was for hospital training purposes (Carter v. Superior Court).

In another case in 2004, the owners of casting workshops in the Hollywood community sued ABC News for broadcasting an expose of their workshop practices. (Turnbull v. ABC)

ABC secretly recorded and broadcast one of the workshop sessions by sending a reporter undercover, and the workshop sued ABC under the the anti-paparazzi statute. The court found that charges could be brought against ABC under the statute, because ABC might have trespassed when they recorded the workshop without permission, and ABC’s activity was offensive to a reasonable person — though a jury later ruled in favor of ABC.

In addition, California Vehicle Code § 40008 allows longer jail sentences of up to 6 months, and steeper fines of up to $2,500, for reckless driving “with the intent to capture any type of visual image, sound recording, or other physical impression of another person for a commercial purpose.” Following a 2012 car chase involving Justin Bieber and a paparazzo, a Los Angeles prosecutor invoked the statute for the first time against the paparazzo, according to news reports.