I have previously written about Hawaii’s efforts to protect privacy in public through the Steven Tyler Act. See here, here, here, and Op-Ed with Ilya Shapiro.

The revised bill has some improvements, specifically that it clarifies only when a person is on private property, but it still leaves no protections for newsworthy material gathered pursuant to the protections of the First Amendment

The revised bill now distinguishes between “physical invasion of privacy” and “construction invasion of privacy.” For the former to apply, there must be an actual trespass onto private property.

(a) A person is liable for physical invasion of privacy when the defendant knowingly enters onto land owned or leased by the plaintiff without permission in order to physically invade the privacy of the plaintiff with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity and the physical invasion occurs in a manner that is offensive to a reasonable person.

Since trespassing is already a tort and crime, it would seem that the sole import of this sentence is to trigger really high compensatory and punitive damages for recordings made during the trespass.

The more important section concerns the “constructive invasion of privacy.”

(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 on land owned or leased by the plaintiff and 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.

This section is a vast improvement of the earlier version of this bill, which provdied:

(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.

There several significant changes that address some of the concerns Ilya and I raised in our Op-Ed.

First, the tort is limited by geography. The person being recorded must be on “engaging in a personal or familial activity on land owned or leased by the plaintiff.” Thus, though the tort would apply in a public place (say Steven Tyler was chilling in his backyard), it would not apply on a public beach. Specifically, this tort would cover the Paparazzo standing across the street from Steven Tyler’s backyard with a telephoto lens. The tort would be committed whether or not there is a physical trespass.

Second, the tort creates a higher burden of proof to incur liability, requiring “actual knowledge” that the recording was made in violation of the statute.

The transmission, publication, broadcast, sale, offer for sale, or other use of any visual image, sound recording, or other physical impression that was taken or captured in violation of subsection (a), (b), or (c), unless the person, in the first transaction following the taking or capture of the visual image, sound recording, or other physical impression, publicly transmitted, published, broadcast, sold or offered for sale, the visual image, sound recording, or other physical impression with actual knowledge that it was taken or captured in violation of subsection (a), (b), or (c), and provide compensation, consideration, or remuneration, monetary or otherwise, for the rights to the unlawfully obtained visual image, sound recording, or other physical impression; provided that “actual knowledge” means actual awareness, understanding, and recognition, obtained prior to the time at which the person purchased or acquired the visual image, sound recording, or other physical impression, that the visual image, sound recording, or other physical impression was taken or captured in violation of subsection (a), (b), or (c). The plaintiff shall establish actual knowledge by clear and convincing evidence;

Third, a person who rebroadcasts a photograph taken in violation of this staute is not liable.=:

Any person who publicly transmits, publishes, broadcasts, sells or offers for sale, in any form, medium, format, or work, a visual image, sound recording, or other physical impression that was previously publicly transmitted, published, broadcast, sold or offered for sale, by another person

This provision, though quite nebulous, would seem to eliminate liability for people who retweet a paparazi photograph, though the langauge “previously publicly transmitted, published, broadcast, sold or offered for sale, by another person” is wide-open.

Fourth, the tort creates a carve-out for law enforcement activity.

Impair or limit any otherwise lawful activities of law enforcement personnel or employees of governmental agencies or other entities, either public or private who, in the course and scope of their employment, and supported by an articulable suspicion, attempt to capture any type of visual image, sound recording, or other physical impression of a person during an investigation, surveillance, or monitoring of any conduct to obtain evidence of suspected illegal activity or other misconduct, the suspected violation of any administrative rule, a suspected fraudulent conduct, or any activity involving a violation of law or business practices or conduct of public officials adversely affecting the public welfare, health, or safety.

No surprise, the police can still record a suspect. But don’t record the police!? Whatever you do.

Last, but most importantly, the tort offers no protection for newsworthy matters. In fact, the statute adds this curious provision about the First Amendment.

(h) Notwithstanding any law to the contrary, include rules of court, upon the filing of any motion to dispose of a claim in a judicial proceeding on the grounds that the claim is barred by a defense based on the First Amendment of the United State Constitution or article I of the Hawaii State Constitution:

(1) The motion shall be treated as a motion for judgment on the pleadings, matters outside the pleadings shall be excluded by the court, and the court shall expedite the hearing of the motion;

(2) The moving party shall have a right:

(A) To an immediate appeal from a court order denying the motion; and

(B) To file an application for a writ of mandamus if the court fails to rule on the motion in an expedited fashion;

(3) Discovery shall be suspended, pending decision on the motion and appeals;

(4) The responding party shall:

(A) Without leave of court, have seven days to amend its pleadings to be pled with specificity, and shall include such supporting particulars as are peculiarly within the supporting pleader’s knowledge; and

(B) Have the burden of proof and persuasion on the motion;

(5) The court shall make its determination based upon the allegations contained in the pleadings;

(6) The court shall grant the motion and dismiss the judicial claim, unless the responding party has demonstrated that more likely than not, the respondent’s claim is barred by a defense based on the First Amendment of the United States Constitution or article I of the Hawaii State Constitution;

Um, I’m pretty sure that such a lawsuit would be filed in federal court, rendering this statute not too important. But, the fact that the legislature added this bit about the First Amendment, without actually addressing how this law may be facially unconstitutional is troubling.

I will keep you updated.