Another Tweak to the Feckless Paparazzi Law

FREE PRESS -- Assembly Speaker Karen Bass (D-Los Angeles) has again amended her anti-paparazzi bill and appears ready to move it to the governor during the last week of the 2009 legislative session, which ends September 11, reports the California Newspaper Publishers Association (CNPA), which opposes the bill. AB 524 rewrites the decade-old celebrity-hounding law to make it easier for victims of privacy-intrusive images—or prosecutors—to sue the publishers as well as the photographers.

AB 524 would make newspaper publishers and other media liable in tort under the existing anti-paparazzi law if they sell, transmit, publish or use an image with the knowledge the image was obtained illegally and they paid for the image.  Previous amendments to AB 524 would also give district and city attorneys the ability to sue on behalf of celebrity victims. 

Following CNPA’s letter opposing these amendments, Bass filed limiting amendments that allow public lawyers to only pursue the civil fines established by the law—not the treble and punitive damages in the law – and only against the person who captured the illegal image, not the publisher.  

The anti-paparazzi law, enacted despite CNPA’s staunch objections in 1998, creates liability for photographers who trespass, either physically or “constructively,” with the intent to invade someone’s privacy in order to capture an image of the plaintiff engaged in a personal or familial activity in a manner that is offensive to a reasonable person. 

The latest amendments to AB 524 were taken this week at the request of the motion picture industry and broadcast networks.  In exchange for the amendments, the California Broadcasters Association and the Motion Pictures Association of America have pledged their neutrality.  The amendments make several changes, including:

• requiring publisher knowledge that an image was obtained illegally to be proven by clear and convincing evidence;
• allowing liability only for the "first " sale or publication of an illegal image after the sale or transaction following the capture of the image;
• limiting publisher liability only for images captured within California;
• defining "actual knowledge" to mean "actual awareness, understanding, and recognition ...";
• applying the new publisher liability to images captured after January 1, 2010, therby creating a safe harbor for already obtained images;
• stating that nothing in the subdivision impairs or limits the filing of a special motion to strike under the Anti-SLAPP law.

Staff's take on the amendments is that the CBA and MPAA have succeeded in making the proposed new tort against publication of an illegal image nearly impossible to prove and has made the coninued pursuit of AB 524 a futile act that won't make a bit of difference in deterring the paparazzi or the publication of unauthorized celebrity images.  AB 524 could be approved by the Senate as early as Tuesday and returned to the Assembly for a vote of concurrence with Senate amendments before the end of the week.

On June 30 Californians Aware sent Bass the following letter, which was ignored:

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 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)

shall not be adjudged in contempt by a judicial, legislative, or administrative body, or any other body having the power to issue subpoenas, for refusing to disclose . . . any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

A companion provision, subdivision (g) of Section 1524 of the Penal Code, forbids the issuance of a warrant to search any location for any such information.

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?

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