Feb 8, 2013

Posted in Hawaii Privacy, Omniveillance

The Constitutionality of the “Steven Tyler Invasion of Privacy Act: Constructive Invasion of Privacy” and an Alternative

Yesterday I blogged about a pending bill in Hawaii, championed by Steven Tyler and other celebrities, that would limit the ability of people to photograph celebrities.

Here is the bill, which was introduced on January 18, 2013. There are some serious constitutional problems here, not the least of which is that it has no exception for newsworthy materials, and allows courts to restrain the publications of photographs that have already been published. I seriously hope cooler heads prevail here.

Here is the crux of the bill.

“1663- Constructive invasion of privacy; civil cause of action.

(a) This section shall be known and may be cited as the “Steven Tvler Act”.

(b) A person is liable for a civil action of constructive invasion of privacy if the person captures or intends to capture, in a manner that is offensive to a reasonable person, through any means a visual image, sound recording, or other physical impression of another person while that person is engaging in a personal or familial activity with a reasonable expectation of privacy.

I have written in the past about privacy to public, and am generally sympathetic to laws that give private citizens a cause of action against invasions of privacy. However, I think this statute goes to far in several important respects.

First, it offers no exceptions for newsworthy content. It simply assumes that if a person is “engaging in a personal or familial activity with a reasonable expectation of privacy,” any photograph would be illegal. I can imagine the President, or other dignitary  vacationing in Hawaii, would indeed be quite newsworthy. Newspapers covering matters of public affairs (that may be personal or familial) could be snared by this staute.

 

Second, the statute is quite vague. It offers no guidance of what “personal or familiar activity” means. Would a photograph of the President walking with the First Lady in Hawaii be subject to this statute? If so, most of the White House photo team would be breaking the law with each click of the shutter, as there is no newsworthiness exception. (I’m not sure what the President’s “Reasonable expectation of privacy” would even be).

Third, the statute gives courts the authority to not only stop the initial publication of such a photograph, but allows for issuing restraining orders for future, subsequent reproductions of the same photograph.

In any action pursuant to this section, the court additionally may grant equitable relief, including but not limited to an injunction and restraining order against further violation of this section.

Even after the photograph is released, and is in the public domain, courts would still have power to limit future publications. This is prior restraint, with nary a compelling government interest at stake (sorry Steven Tyler, if the publication of the Pentagon Papers does not warrant prior restraint, then photographs of you on the beach certainly don’t).

Fourth, the penalties are severe, and included compensatory damages, treble punitive damages, and disgorgement of profits!

(d) A person who commits constructive invasion of privacy shall be liable for the following damages proximately caused by a violation of this section: –

( 1 ) General damages ; –

(2) Special damages; and –

(3) Punitive damages up to three times the amount of general and special damages combined.

(e) If the constructive invasion of privacy is committed for a commercial purpose, the person shall also be subject to disgorgement to the plaintiff of any proceeds or other consideration obtained as a result of the violation of this

Such penalties on a vague statute would chill speech. I can’t imagine any photographer would risk violating this statute.

Fifth, this standard applies not only to the person who takes the photograph, but also to everyone who uses the photographs in any capacity, and who  knows this statute was violated.

(g) Any person who transmits, publishes, broadcasts, sells, offers for sale, uses any visual image, sound recording or other physical impression, or who subsequently retransmits, reDublishes, rebroadcasts, resells, reoffers to sell, or reuses any visual image, sound recording, or other physical impression in any form, medium, format, or work of the same visual image, sound recording, or other physical impression that was taken or captured in violation of this section shall constitute a violation of this section if:

(1)  The Person had actual knowledge that the visual image. sound recording, or other physical impression was taken or captured in violation of this section; and

(2)  The person received compensation, consideration, or remuneration, monetary or otherwise, for the rights to the unlawfully obtained visual image, sound recording, or other physical impression,

This, I think runs into serious constitutional problems. Anyone who publishes these photographs, knowing that they were taken in violation of this law, can be held liable just the same as the person who took the photograph. Now the statute requires “actual knowledge”–but in truth, this would not be hard to satisfied. Any photograph of a celebrity taken in Hawaii that is in some sort of private state would be good evidence of a violation of this statute, subject only to the “offensive” standard. Any blogger who posts photos from a paparazzo will likely know that this statute was probably violated. Even if a given photograph would plausibly not violate the statute, treble punitive damages on top of disgorgement would serve as a serious deterrent to publishing these photographs.

This is not a hard standard to satisfy here.

In my 2009 article, Omniveillance, I introduced a privacy tort that would provide for a right of privacy in public against unwanted photography. It addresses many of the concerns Hawaii seeks to address, while respect the First Amendment.

The right to your digital identity is violated when an individual or organization records and reproduces an image of another without consent using a visual or auditory enhancing device while (1) the party recorded possessed a reasonable expectation of privacy to not be recorded; (2) the matter recorded would be offensive to a reasonable person; (3) the recording is intentionally widely transferred or disseminated through any electronic medium to any electronic format; and (4) the recording is not newsworthy, where a newsworthy recording (4a) has social value, (4b) minimally intrudes into ostensibly private affairs, and (4c) the party that is recorded voluntarily acceded to the position of public notoriety.

Both the Tyler Bill, and my tort provide for constructive invasions of privacy in public based on a reasonable expectation of privacy (the traditional Restatement standard requires that the recording must be “highly offensive”) and the person possesses a reasonable expectation of privacy (both provide for familial or private affairs).

My proposed tort, however includes a strong exception for newsworthy material, which considers the social value of the recording, whether private affairs are at issue. The Hawaii statute also does not consider the extent to which the recording is disseminated–so a camera phone pic will be treated the same as a paparazzo photo blasted on the cover of the National Enquirer, or the homepage of TMZ.

I am curious to see where this law goes.

In the findings, the bill actually explains why it is being named after Steven Tyler–he bought a house in Maui. Is that all it takes?!

However, a few celebrities are not discouraged from visiting or residing in our beautiful State. For example, Steven Tyler, the lead singer of Aerosmith for over forty years, former “American Idol” judge, and world-renowned celebrity has recently purchased a home on Maui. He will now be sharing his time between Boston, Los Angeles, and his new home on Maui. In honor of Steven Tyler’s contribution to the arts in Hawai’i and throughout the world, this Act shall be known as the Steven Tyler Act

Indeed, in perhaps a first for public choice brazenness, Steven Tyler admitted that his manager wrote the bill and asked a Senator to introduce it! Can you say capture?

Tyler says he had his manager draft the bill and requested that Sen. Kalani English introduce it on his behalf.

I may write something to the Hawaii Senate offering a contrary opinion to this bill, which is blatantly unconstitutional on many grounds.

H/T ThePrez98

Update: Malia Zimmerman, a journalist in Hawaii, wrote this report, and shared a link to testimony provided in support of this bill. What, with letters from the likes of B-listers like Tommy Lee, Kat von D, Mick Fleetwood, Margaret Cho, the entire Osbourne family (Jack, Kelly, Ozzy, and Sharon!), and a few A-listers like Britney Spears, Neil Diamond, and Avril Lavgine, who can oppose this law! There is one memo from the Motion Picture Association fo America opposing this law.

Here is a video of the testimony:

Malia tells me that this bill has legs, will likely clear committee next week, and will go straight through the House to the Governor.

It seems Hawaii has no problem enacting an unconstitutional piece of legislation.

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