Redefining Privacy In California? The "Anti-Paparazzi" Legislation

Co-written by Randall Boese

The death of Princess Diana in 1997 resulted in widespread calls 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, California has enacted the nation's first "anti-paparazzi" law, which creates tort liability for "physical" and "constructive" invasions of privacy through photographing, videotaping, or recording a person engaging in a "personal or familial activity."1

Notwithstanding the "anti-paparazzi" nomenclature, the legislation broadly applies to all members of the media and has potentially far-reaching implications for mainstream photojournalists. In addition, the poorly drafted language in California's statute opens a Pandora's box of issues that may take years to sort out.

The "New" Privacy Torts?

California's 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 person-not just a celebrity-could sue a photojournalist or other member of the media for entering his or her private property without permission.2 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.3 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."4

In light of this previously-existing law, the statute's 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 (1) a person has knowingly entered the land of another without permission; (2) 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 (3) the invasion was made "in a manner that is offensive to a reasonable person."5 Because the physical intrusion onto another person's private property already constitutes trespass, 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 person's personal life, "interactions" with the person's family or significant others, and "other aspects" of the person's private affairs or concerns.6 It is unclear 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? The courts will have to sort out these questions and many others regarding the scope of what the statute...