As the notes to Assignment #6 reference, in 1998 California’s Anti-Paparazzi Act, Cal. Civ. Code § 1708.8(b), created a new tort called “constructive invasion of privacy.” The Act hasn't been terribly effective, but that doesn't deter Hawaii state senator and apparent hard rock fan J. Kalani English. The Los Angeles Times reported on Saturday that Senator English has introduced a bill to create a new cause of action for constructive invasion of privacy. English drafted the bill after hearing complaints from Aerosmith frontman Steven Tyler, who recently bought a house in Maui. Photographers have taken pictures of Tyler on the beach behind his house, sometimes from boats offshore. One tabloid printed such photos in a feature entitled, “Celebrity Beach Bodies We Never Wanted to See.”
Section 1 of Senate Bill 465 notes that Hawaii has no tort of intrusion, and “[t]herefore, many celebrities are deterred from buying property or vacationing in Hawai‘i because the same paparazzi that harass them on the mainland are more likely to follow them to Hawai‘i.” S.B. 465 is named the “Steven Tyler Act” in official, fawning recognition of Tyler’s “contribution to the arts” and his newfound status as a Hawaii homeowner.
S.B. 465 makes a person liable:
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.
English says he looked at California’s Anti-Paparazzi Act and “copied it almost exactly.” The two laws are similar, but California requires the use of a visual or auditory enhancing device, if the defendant could not have gotten the image or sound without the enhancing devices. The Hawaii bill, on the other hand, says that taking or attempting to take pictures or sound is tortious when done “through any means.” So, the Steven Tyler Act is somewhat broader than California's § 1708.8(b).
Imagine Paparazzo Petey hiding in the caperbushes, taking pictures (without any zoom lens) of Celebrity Celine across the street sitting in her mansion. If Petey and Celine are in California, Celine does not have a colorable claim of constructive invasion of privacy, because Petey did not use a visual or auditory enhancing device. In Hawaii, Petey may have violated the Steven Tyler Act, so long as the "reasonable" elements are satisfied. If Petey does use a sense-enhancing device, the results may be the same whether California or Hawaii law is applied.
Senator English claims confidence in the act’s constitutionality, but S.B. 465 raises important First Amendment concerns. There is a good argument to be made that S.B. 465 is not narrowly tailored to the government interests here: individual privacy and public safety (not to mention encouraging more American Idol judges to move to Hawaii!). Hawaii certainly has good reason to deter aggressive and invasive pictures taken by long-focus lens (the outer limits of California’s law), but almost all private images and sound? I think so; photographers can use alternative means to get pictures of celebrities, namely catching them out in public. S.B. 465 might also be unconstitutionally vague and overbroad. Unlike California's law, S.B. 465 doesn't attempt any definition of terms like "personal or familial activity."
I can see why English would draft this bill. It stands to confer broader liability than the Second Restatement’s tort for intrusion upon seclusion. Even if it doesn’t, it sure makes Hawaii look good for acting in the best interests of its celebrities. Dream On, paparazzi.
I'm not sure how this is different than the common law tort of intrusion upon seclusion, which Hawaii appears to recognize. This statute seems to carve out a smaller category of actionable conduct because it requires a recording while the Restatement version of the tort merely requires a "highly offensive" intrusion into "private affairs or concerns."
ReplyDeletePerhaps the statutory standard is lower because is doesn't require that the conduct is "highly" offensive or perhaps "personal or familial activity" is broader than "private affairs or concerns."
Pari, I'm not sure that Hawaii recognizes that tort. I haven't exhaustively researched the issue, but when preparing my blog post, the very few times I've seen it come up in connection to Hawaii has been in federal court. When the tort is mentioned in the published opinions of Hawaii courts, it's only been in the context of: "The Second Restatement recognizes four torts of privacy, including..." and the like; the courts don't seem to be endorsing the tort.
ReplyDeleteBut you're right that this bill and the Second Restatement's articulation of the common law tort of intrusion upon seclusion (as well as California's law) are not coextensive, and certain classes of activities will create liability under one but not the other. I don't see S.B. 465 and the common law tort as altogether fundamentally different, but there are larger differences I think between S.B. 465 and California's Anti-Paparazzi Act (which also requires a recording or attempt to record). And if nothing else, Steven Tyler's lobbying and the "hounded celebrities" justification make for interesting bits of legislative history. Just goes to show that it's not always dramatic technological change that drives legislative responses to privacy concerns.
Yup. I think you're right, Steve.
ReplyDeleteIt is interesting to think of these types of laws in contrast to what type of regime is in place in European countries. For example, the photographer (whose identity was still unknown as of early January) who took the photos using a zoom lens of Princess Kate topless on vacation would be subject to criminal prosecution, as well as potential liability through civil action. I totally agree that these anti-paparazzi laws seem duplicative to the privacy tort options here in the U.S. and that trying to get this type of law passed is pretty ridiculous.
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