Some years ago in Omniveillance I wrote about California’s attempts to create zones of privacy in public to protect sensitive celebrities from the intrusive paparrazzi (from an Italian word for gnat). A recently enacted anti-paparazzi law, which effectively codified the nebulous tort of constructive invasion of privacy, bears a number of similarities with the tort I proposed in Omniveillance.

Here is the text of the statute:

California Civil Code s. 17808.8(b): “A person is liable for constructive invasion of privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the visual or auditory enhancing device was used.”

Here is the right to your digital identity, as identified in Omniveillance

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.

There are a number of similarities:

1. Both torts are triggered when someone records an image of another with a visual or auditory enhancing device.
2. The California tort is modified to apply not just to the person who takes the photograph, but also to those who “direct, solicit, instigate, induce” the recordings. I accomplished this element through opening up liability to “organizations” (with Google in mind).
3. Both standards rely on a “reasonable expectation of privacy.” This was a notion I directly imported from Katz v. United States and Fourth Amendment jurisprudence.
4. Both standards adopt a standard that the recording should be “offensive to a reasonable person.” Prior descriptions of privacy torts required that the image be “highly offensive to a reasonable person.” I argued that in light of modern sensibilities, this heightened standard was not practical, and a lowered standard fit our cultural mores (and this was *before* Jersey Shore!).
5. The California law identified a “personal or familial activity” as an example of where a reasonable expectation of privacy may exist. Under the (4b) prong of the test, I specifically cited personal and familial activities as an example to determine how deeply a recording delves into private matters.
6. Under both standards, no physical trespass is required. The mere recording is sufficient to trigger liability.
7. Both standards do not permit liability if the recording is newsworthy. This was important for First Amendment purposes. The California statute exempts journalists who seek “to obtain evidence of suspected illegal activity, the suspected violation of any administrative rule or regulation, a suspected fraudulent insurance claim, or any other suspected fraudulent conduct or activity involving a violation of law or pattern of business practices adversely affecting the public health or safety”.

Where the torts diverge is dissemination. My tort extends liability based on the pervasiveness of the distribution. The California tort only extends liability for the first transaction:

Liability is limited to the first point of sale or “the first transaction” and does not apply to the “sale, transmission, publication, broadcast or use of any image or recording of the type” by third parties.

In other words, while a photographer or photo agency may be liable, the same liability does not extend to a celebrity magazine that buys the photo from the agency.

Even pursuing photo agencies (the people who sell much of the work of the Hollywood paparazzi) could prove difficult for a claimant as the statute provides that the photo agency must has “actual knowledge” that the photo in question was taken illegally.

When I wrote Omniveillance, a Professor I worked with criticized the article. He said, who are you [a 3L at the time] to propose a new tort? Are you Richard Epstein or something? Three years later, when the largest state in the Union adopts a tort that shares many of the features as  the tort I proposed, I feel somewhat vindicated. Now I gotta comb through the legislative history and see if I got a cite.

From Informm, some details about the background of the law:

Under Governor Schwarzenegger’s stewardship, the anti-paparazzi statute, section 1708.8 of the California Civil Code, has been strengthened to increase the potential penalties for photographers who endanger their celebrity prey in the pursuit of lucrative photos and videos.

Perhaps of more concern to those who profit from the sale of these photos is a further provision, which penalizes those who pay for, or commission, such ill-gotten photos or videos, and not just those who take them.

The brief history of section 1708.8 provides for an interesting study in the conflict between the studios, producers, actors – and the media industry that provides 24-hour coverage of their carryings on.

…

Fast forward 13 years and, in one of his last acts as governor, Schwarzenegger signed into law a new provision that would imprison those paparazzi who endangered others on the road.

The new law provides that a person who engages in reckless driving with the intent to capture a photo of another person is guilty of a misdemeanor punishable by up to 12 months jail.

The outgoing governor also signed further civil law amendments that created new remedies for invasion of celebrity privacy.

…

In the absence of established case law on the subject, there remains conjecture as to what would constitute an act that was “offensive to a reasonable person” or what would amount to a situation where a celebrity had a “reasonable expectation of privacy.”

…

The Californians, notably, have stopped short of creating what is in effect a bubble of privacy around celebrities, as in Europe, where even public acts by public figures are now off limits in certain countries.

H/T Lyrissa Lidsky