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
restaurants 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, arent 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
familys 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 doesnt he leave us
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
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 nations 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 Californias
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 Pandoras box of
issues that will take years to sort out.
Californias "New" Privacy Tort?
Californias 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 personnot just
celebritiescould 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 statutes 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 persons 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 persons personal life,
"interactions" with the persons family or significant others, and
"other aspects" of the persons 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
intruders 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 Californias
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 Californias "constructive invasion of
Rep. Conyers federal bill contains two important limitations on liability from
the medias 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 liabilityin 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.
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 fanswho contemporaneously engaged in the same
exact conductwould 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
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, Californias 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 plaintiffs
family or significant others, or other aspects of plaintiffs 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.
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 hornets 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.
1. See Galella v. Onassis, 353 F. Supp. 196 (S.D.N.Y. 1972), affd in
part, revd in part, 487 F. 2d 986 (2d Cir. 1973).
2. In early 1999, a Paris judge concluded that Princess Dianas 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. Bonos. 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
4. Californias 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,
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
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 Commr of Revenue, 460 U.S. 575
(1983) (holding that differential treatment for the press is presumptively
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).