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American Bar Association

American Bar Association
Forum on Communications Law

Redefining Privacy? Anti-Paparazzi Legislation and Freedom of the Press

by Randall Boese

Randall Boese is an associate with Davis Wright Tremaine LLP, Los Angeles, California. He thanks Kelli L. Sager, also of the Los Angeles office of Davis Wright Tremaine LLP, who co-authored an earlier version of this article.

From 1969 to 1972, Jacqueline Kennedy Onassis was hounded by a photographer named Ronald Galella. He hid behind a coat rack at a restaurant and secretly photographed her dining with friends, the sound of his shutter muffled because he paid the restaurant’s staff to turn up the house music. He popped out from behind bushes in Central Park to photograph her and her son riding bicycles, causing John Jr. to swerve violently and almost crash. He chased her to her car, jumping around from side to side, snapping close-up photographs, and saying, "Glad to see me back, aren’t you, Jackie?" He and an accomplice, who was dressed in a Santa Claus costume, followed her from her apartment to a club to a theater, the whole time leaping around her taking pictures and saying, "Come on, Jackie, be nice to Santa." He followed the children to school events and tennis lessons, knocking over trash cans and snapping photographs in their faces. After being ejected from a school play, he bribed a student to photograph John Jr.’s performance from the inside.

Unrelenting, Galella bumped the children into doors and walls, blocked the family’s passage, blinded them with flashbulbs, used telephoto lenses to spy on them, disrupted a funeral, trailed Jackie through the city hour after hour, chased her by automobile, and generally snooped around every aspect of their lives. At one point he yelled, "How do you like the great paparazzi being back again?," after which little Caroline asked, "Why does he always follow us? Why doesn’t he leave us alone?"

Jackie Onassis did not have an anti-paparazzi law to protect her privacy back then. Instead, she sought and obtained an injunction against Galella under theories of harassment, intentional infliction of emotional distress, assault and battery, commercial exploitation of her personality, and invasion of privacy.1 Finding that Galella had "insinuated himself into the very fabric of Mrs. Onassis’ life," the court enjoined him from coming within fifty yards of Jackie Onassis and within seventy-five yards of her children.

Jackie Onassis is only one of many celebrities and news subjects who have used "traditional" legal protections in response to claims of abuse by the media. For example, two photographers recently were convicted of false imprisonment, receiving fines and jail times, for following and blocking a car driven by Arnold Schwarzeneggar in which his wife and at least one of his children were passengers. A freelance journalist who taped a phone call from Nicole Kidman to her husband, actor Tom Cruise, and then sold it to a tabloid newspaper recently pleaded guilty to a federal wire tapping charge and was sentenced to six months in a halfway house, fined, and ordered to do community service. Another family recently obtained an injunction against an "Inside Edition" crew that had been accused of harassing them by following family members and showing up outside their property.

Nevertheless, these "traditional" protections seemed inadequate, or, more accurately, were ignored, after the death of Princess Diana in 1997.2 Targeting their anger at aggressive press coverage, a chorus of anti-media proponents called for legislation to restrain the so-called paparazzi. As a result of heavy lobbying by a coalition of celebrities, the Screen Actors Guild, and victims’ rights groups, four separate anti-paparazzi bills were introduced into Congress in 1998.3 Although the federal bills died in Congress, the nation’s first anti-paparazzi law went into effect in California on January 1, 1999, creating tort liability for "physical" and "constructive" invasions of privacy through photographing, videotaping, or recording a person engaging in a "personal or familial activity."4 One of the federal anti-paparazzi bills already has been reintroduced into the 106th Congress, and other states are considering similar legislation.

Notwithstanding the "anti-paparazzi" nomenclature, both California’s anti-paparazzi law and the proposed federal legislation broadly apply to all members of the media and have potentially far-reaching implications for mainstream photojournalists. Moreover, the poorly drafted language in both of the laws opens a Pandora’s box of issues that will take years to sort out.

California’s "New" Privacy Tort?

California’s anti-paparazzi law purports to create two new privacy torts: "physical invasion of privacy" and "constructive invasion of privacy." But in many ways the new law is duplicative of existing California law. Much of the conduct that appears to be prohibited by the anti-paparazzi law already was prohibited by existing California law. For example, California has long recognized trespass as a tort. Thus, even before the anti-paparazzi statute was passed, any person—not just celebrities—could sue a photojournalist or other member of the media for entering his or her private property without permission.5 Similarly, existing California law already recognized the tort of intrusion. Privacy is an "inalienable right" under the California constitution, and courts already allowed lawsuits to proceed under various theories for invasion of that right.6 Other existing protections against claimed "abuses" by the media include statutory and common law prohibitions against assault, battery, false imprisonment, stalking, and surreptitious audio or video recording of "confidential communications."

In light of these previously existing laws, the statute’s first "new" tort, for "physical invasion of privacy," does not appear on its face to broaden prohibited conduct. Under the statute, a person may sue for "physical invasion of privacy" when three elements are met: first, a person has knowingly entered the land of another without permission; second, the entry was made with the "intent to capture any type of visual image, sound recording, or other physical impression" of another person engaging in a "personal or familial activity"; and third, the invasion was made "in a manner that is offensive to a reasonable person."7 Because the physical intrusion onto another person’s private property already was covered by trespass law, this part of the statute arguably does not encompass conduct that otherwise would have been permissible.

The limitations of the statute, however, are unclear. For example, "personal or familial activity" is broadly defined by the statute to include, "but is not limited to," the "intimate details" of the person’s personal life, "interactions" with the person’s family or significant others, and "other aspects" of the person’s private affairs or concerns.8 It is difficult to understand what conduct is or is not included under this definition. Does "interaction with significant others" include sexual harassment of a staff member? Or the conduct of a public official who uses illegal drugs or physically or verbally abuses a spouse or child? Needless to say, the courts will have to sort out these questions and many others regarding the scope of what the statute prohibits.

Similarly, the statute gives no guidance on what is meant by "offensive to a reasonable person," but at least that term has been used in connection with traditional intrusion torts. For example, in public disclosure of private facts cases, a plaintiff must show (1) public disclosure (2) of a private fact (3) that would be offensive and objectionable to the reasonable person and (4) that is not of legitimate public concern.9 Courts have stated that in determining the existence of "offensiveness," courts should consider "the degree of intrusion, the context, conduct, and circumstances surrounding the intrusion as well as the intruder’s motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded."10 It seems likely that a similar definition will be used for the anti-paparazzi law.

The most significant change made by the "physical invasion of privacy" provision of the anti-paparazzi law is the stiffer civil penalties for a trespass if the purpose of the trespass is to photograph or videotape someone. The penalties for "physical invasion of privacy" include general damages, special damages, treble damages (i.e., three times the general and special damages), punitive damages, disgorgement of profits, and equitable relief, including injunctions and restraining orders.11 Trebled damages and disgorgement of profits have not been awarded for simple trespass, and punitive damages are rare in such cases.

The second "new" tort created by the anti-paparazzi statute, for "constructive invasion of privacy," does represent a potentially significant shift in California law. The "constructive invasion" provision goes beyond physical invasion by providing for liability even if there was no actual entry onto the property of another. Thus, under certain circumstances, a photographer arguably may be held liable under the statute for taking pictures of another, even if he or she has every right to be at the place where he or she takes the picture. "Constructive invasion of privacy" has the following elements: first, a person "attempts to capture . . . any type of visual image, sound recording, or other physical impression" of another person engaging in a "personal or familial activity"; second, the attempt was made "in a manner that is offensive to a reasonable person"; third, the person photographed, videotaped, or recorded "had a reasonable expectation of privacy"; and fourth, "a visual or auditory enhancing device" was used.12 As long as the "image, sound recording, or other physical impression could not have been achieved without a trespass unless the visual or auditory enhancing device was used," it does not matter that there was no physical trespass. Damages for "constructive invasion of privacy" are the same as for "physical invasion of privacy."

A key element to the "constructive invasion" provision is that the person photographed or recorded must have had a "reasonable expectation of privacy," a phrase familiar to the analysis of whether police searches are constitutional under the Fourth Amendment. If the principles developed under Fourth Amendment analysis are applied to the anti-paparazzi law, photojournalists should have some guidance and protection. Courts have held that "[s]o long as that which is viewed or heard is perceptible to the naked eye or unaided ear, the person seen or heard has no reasonable expectation of privacy in what occurs."13 Thus, courts have held that there is no reasonable expectation of privacy in "open fields" outside the curtilage of a home;14 in a yard enclosed by a chain link fence;15 or in a condominium-complex garage that was open to the public, used for access to the units, and contained no warning signs prohibiting entry.16 On the other hand, courts have held that there was a reasonable expectation of privacy in an enclosed backyard patio17 and behind a six-foot fence surrounding a backyard, even though activities inside the backyard could be seen through knotholes and gaps in the fence.18

The anti-paparazzi law does have an important exception for investigations of suspected illegal or fraudulent activity.19 The exception applies to both law enforcement personnel and employees of governmental agencies "or other entities, public or private," who, in the course and scope of their employment and supported by an "articulable suspicion," attempt to photograph, videotape, or record another person as part of an investigation of illegal activity or other fraudulent activity "involving a violation of law or pattern of business practices adversely affecting the public health or safety." If this exception is given its plain meaning, it should provide some protection to mainstream news media engaged in investigative reporting of illegal or fraudulent activity.

Moreover, it appears that broadcasters and publishers are immune from liability for merely using images or recordings that were captured in violation of the statute. The law specifically states that "[s]ale, transmission, publication, broadcast, or use of any image or recording . . . shall not in itself constitute a violation" of the law.20 However, a person who directs or otherwise causes another person to commit a "physical" or "constructive" invasion of privacy, regardless of whether an employer-employee relationship exists, may be liable for compensatory and punitive damages.21 Thus, a media organization may not be penalized for publishing an image that it obtains from someone else who violated California’s anti-paparazzi law, as long as the violation was not directed or caused by the publisher.

Proposed Federal Anti-Paparazzi Legislation

In early 1999, Rep. John Conyers (D-Mich.) reintroduced his version of the federal anti-paparazzi statute. Euphemistically entitled the "Personal Privacy Protection Act," the federal anti-paparazzi legislation would impose criminal and civil penalties for "reckless endangerment" and civil penalties for "tortious invasion of privacy."22

The first provision, called "reckless endangerment," would impose both criminal and civil penalties on photojournalists who "persistently follow" their subjects in order to get footage for sale. Specifically, liability arises against any person who (1) for commercial purposes, (2) persistently follows or chases a person, (3) in a manner that causes that person to have a reasonable fear of bodily injury, (4) in order to capture by a visual or auditory recording instrument any type of visual image, sound recording, or other physical impression of that person.23 If death or serious bodily injury results from such conduct, the photographer may be fined and/or imprisoned for up to thirty years. Additionally, the photographer can be sued for compensatory damages, punitive damages, and injunctive relief.

The second provision, called "tortious invasion of privacy," would create a civil cause of action against those who use visual or audio enhancement devices, such as telephoto lenses or high- powered microphones.24 Specifically, liability may arise against one who (1) for commercial purposes, (2) engages in a "tortious invasion of the privacy" of another person, (3) in order to capture by visual or auditory recording instrument any type of visual image, sound recording, or other physical impression of that person. "Tortious invasion of privacy" is specifically defined as the "capture of any type of visual image, sound recording, or other physical impression of a personal or familial activity through an auditory enhancement device," if (a) the subject has a reasonable expectation of privacy with respect to that activity and (b) the image, recording, or impression could not have been captured without a trespass if not produced by the use of the enhancement device.25 Unlike the California statute, the terms "personal" or "familial" activity are not defined in the federal bill, leaving one to wonder how such vague and broad terms should be construed. Violators of the "tortious invasion of privacy" provision may be liable in a civil action for compensatory damages, punitive damages, and injunctive relief. Otherwise, however, the "tortious invasion of privacy" provision is very similar to California’s "constructive invasion of privacy."

Rep. Conyer’s federal bill contains two important limitations on liability from the media’s point of view. First, only a person physically present and engaging in or assisting in the violation is subject to criminal or civil liability under the proposed law. According to the terms of the bill, there is no vicarious liability—in other words, one may not be held liable because an agent, employee, or independent contractor violated the law. Similarly, the bill expressly provides that one cannot be held liable for soliciting, buying, using, or selling images or recordings initially captured in violation of the law. Thus, the law is targeted at the photographer or reporter, not the organization for whom that person works.

Constitutional Challenges?

The anti-paparazzi laws raise significant constitutional issues. The first problem with the laws is that they were designed as and intended to be restrictions on the media. The proposed federal law, for example, singles out people who videotape or record an event for "commercial purposes"26 as opposed to the aggressive fan who engages in the same conduct for personal reasons. It is easy to imagine a situation where a group of photographers, consisting of some members of the press and some obsessed fans, "persistently follow" a celebrity to the point where the celebrity has a reasonable fear of bodily injury. Under the federal bill, if death or serious bodily injury results from the chase, the members of the press would face up to thirty years in federal prison while the obsessed fans—who contemporaneously engaged in the same exact conduct—would face no liability whatsoever under the law.

Although the media may have no special protection from the general laws,27 such as laws prohibiting trespass, stalking, false imprisonment, or assault and battery, the U.S. Supreme Court has made clear that the government may not enact laws that are directed at protected First Amendment activities without a compelling governmental interest. Because newsgathering is protected by the First Amendment,28 only a compelling governmental interest will save the anti-paparazzi. Given the long-standing "traditional" legal means of protecting personal privacy, such as those successfully invoked by Jackie Onassis in 1973, it is hard to imagine any compelling government interest that would justify singling out the media for differential treatment.

Second, the law is subject to challenge on the grounds that it is vague and overly broad. The vagueness doctrine requires that a law be written clearly enough to give citizens a reasonable chance to know what the law prohibits so that they may behave lawfully.29 The anti-paparazzi laws fail miserably in this regard. For example, the proposed federal law does not define the key phrase "persistently follows," leaving a photojournalist with no way to know whether the line has been crossed from legally following a subject to illegally "persistently following" the subject. Does "persistently" refer to the distance that a photographer follows his or her subject? Does it refer to the length of time the photographer follows the subject? Does it refer to the number of days per week or month that the photographer follows the subject? Does it refer to some combination of the above? And how are those charged with enforcing the law to know when following becomes "persistent"? Simply put, there is no way for photojournalists or those enforcing the law to know what conduct is prohibited, leaving the law unconstitutionally vague. The same vagueness problems apply to the California law.

The anti-paparazzi laws also are overly broad. The overbreadth doctrine prohibits laws that are so sweeping that, along with their allowable proscriptions, they also restrict constitutionally protected rights of free speech, press, or assembly.30 As discussed above, for example, California’s anti-paparazzi law broadly defines "personal or familial activity" to include anything that the target of a news report wants to keep private, including "interactions with the plaintiff’s family or significant others, or other aspects of plaintiff’s private affairs or concerns."31 Because these terms and others are not defined, journalists will be left to guess whether they are photographing a "private concern" or a newsworthy event that is protected by the First Amendment.

Conclusion

The anti-paparazzi laws appear to be the result of an emotional reaction to a tragic event. They ignore the fact that existing laws have long protected against "abuses" by the media, leaving the new legislation unnecessary and likely unconstitutional. Nevertheless, only time will tell whether the anti-paparazzi laws withstand constitutional scrutiny. In the meantime, substantial litigation should be expected to sort out the hornet’s nest of potential legal issues. The most likely immediate effect, unfortunately, will be a chilling of legitimate newsgathering activities as photojournalists ponder what they can and cannot do under the laws.

Endnotes

1. See Galella v. Onassis, 353 F. Supp. 196 (S.D.N.Y. 1972), aff’d in part, rev’d in part, 487 F. 2d 986 (2d Cir. 1973).
2. In early 1999, a Paris judge concluded that Princess Diana’s driver was primarily responsible for the accident that killed her, and that the paparazzi would not be charged with causing her death. See John-Thor Dahlburg, Diana Crash Probe Closed; Blame Likely to Fall on Driver, L.A. Times, Jan. 30, 1999, at A4.
3. The first, authored by the late Rep. Sonny Bono, would have created civil and criminal penalties for "persistently physically following or chasing a victim" where the victim has a "reasonable expectation of privacy." Rep. Elton Gallegly, another California Republican, introduced a bill very similar to Rep. Bono’s. Senators Dianne Feinstein (D-Cal.) and Orrin Hatch (R-Utah) introduced a bill in the Senate that sought to impose civil and criminal penalties for "persistently physically following or chasing a person in a manner that causes the person to have a reasonable fear of bodily injury." Not only did the Feinstein-Hatch bill seek to impose up to twenty-year prison sentences where the harassment resulted in serious bodily injury or death, it sought to federalize trespass laws to protect against high-powered lenses, microphones, or helicopters. Finally, Rep. John Conyers (D-Mich.) introduced a bill that mirrored the Feinstein-Hatch bill in many ways. Rep. Conyers’ bill has been reintroduced into the 106th Congress.
4. California’s anti-paparazzi law is codified at Cal. Civ. Code 1708.8.
5. See, e.g., Miller v. National Broadcasting Co., 187 Cal. App. 3d 1463, 1480-81 (1986).
6. Id. at 1492; see also Shulman v. Group W. Productions, Inc., 18 Cal. 4th 200, 236 (1998); Dietemann v. Time, Inc., 449 F. 2d 245, 249 (1971).
7. See Cal. Civ. Code 1708.8(a).
8. See Cal. Civ. Code 1708.8(k).
9. See Diaz v. Oakland Tribune, 139 Cal. App. 3d 118, 126 (1983).
10. Miller, 187 Cal. App. 3d at 1483; see also Shulman, 18 Cal. 4th at 235-36.
11. See Cal. Civ. Code 1708.8(c).
12. See Cal. Civ. Code 1708.8(b).
13. People v. Arno, 90 Cal. App. 3d 505, 511 (1979).
14. See, e.g., Soli v. Superior Court, 103 Cal. App. 3d 72, 79 (1980); Oliver v. United States, 466 U.S. 170 (1984).
15. See People v. Mendoza, 122 Cal. App. 3d Supp. 12, 14 (1981).
16. See People v. Galan, 163 Cal. App. 3d 786, 793 (1985).
17. See People v. Arroyo, 120 Cal. App. 3d Supp. 27, 34 (1981).
18. See People v. Lovelace, 116 Cal. App. 3d 541, 549 (1981). Another court has held that there was a reasonable expectation of privacy inside a building, even if a defect in Venetian blinds allowed one to peek inside. See Jacobs v. Superior Court, 36 Cal. App. 3d 489, 498 (1973).
19. See Cal. Civ. Code 1708.8(f).
20. See Cal. Civ. Code 1708.8(e).
21. See Cal. Civ. Code 1708.8(c).
22. H.R. 97, 106th Cong. (1999).
23. H.R. 97 1(A).
24. H.R. 97 1(B).
25. H.R. 97 1(C)(2).
26. "For commercial purposes" means "with the expectation of sale, financial gain, or other consideration." H.R. 97 1(C)(1).
27. See Cohen v. Cowles Media Co., 501 U.S. 663 (1991).
28. See, e.g., Branzburg v. Hayes, 408 U.S. 665, 681-82 (1972); see also Minneapolis Star & Tribute Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575 (1983) (holding that differential treatment for the press is presumptively unconstitutional).
29. See, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972).
30. See, e.g., Houston v. Hill, 482 U.S. 451, 458 (1987).
31. See Cal. Civ. Code 1708.8(k).

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