Only in California … Now those who commission photographs of celebrities as well as the paparazzi themselves will be liable for hefty invasion of privacy penalties, thanks to The Terminator … Michael Cameron reports
Arnold Schwarzenegger may be gone from public office but he leaves a lasting legacy in the burgeoning annals of California media law, particularly as it applies to celebrities and privacy.
The proliferation of small-time paparazzi in the Golden State has been met with the creation of a new body of law designed to afford celebrities a great level of protection from over-enthusiastic media.
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.
It also exposes a growing east-west divide in US privacy law. Efforts to export the west coast’s celebrity-friendly laws continue to be resisted on the east coast where the news media industry holds sway.
The cause to strengthen the laws in California was a personal one for the departed governor. In 1997, way before public office beckoned, Schwarzenegger was involved in a nasty confrontation with two paparazzi.
He and his wife, Maria Shriver, claimed to have been “trapped” by photographers as they attempted to drive one of their children to school.
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.
The Californian statute provides that:
“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.”
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.”
One view expressed at a recent American Bar Association communications law conference in Palm Springs was that a reasonable person would assess that Jennifer Aniston (pic) would have a reasonable expectation of privacy sunbathing topless in her Malibu backyard – regardless of where the photographer was standing at the time of the photo.
But that expectation of privacy would not extend to Lindsay Lohan “shopping” in private for jewelry in a Los Angeles store.
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.
In the Von Hannover case, Princess Caroline of Monaco prevailed in a privacy action against three German magazines for publishing photos that showed the princess and her family skiing, horse riding, sitting in a cafe and playing tennis – all in public areas.
However, like European privacy law, the Californian law for the first time seeks to punish those who commission the photography of celebrities, as well as the photographers themselves.
Section 1708.8 was amended to extend penalties for privacy intrusion to those engaged in the first point of sale of the photos, as well as photographers themselves.
In the decade since it was first introduced, Section 1708.8 has been gradually expanded to create a civil damages cause of action, directly aimed at paparazzi, through an expansion of Californian trespass law.
A “physical invasion of privacy” now exists where a person “knowingly enters onto the land of another person without permission…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.”
The code also provides for a “constructive invasion of privacy” in situations in which a person uses some kind of “visual or auditory enhancing device” (e.g. telephoto lens camera), even if they don’t physically trespass.
The penalties for violating these provisions include damages as well as the handing over of “any proceeds or consideration” (i.e. profits from selling the photo).
For the first time liability extends to those who “direct, solicit, instigate, induce” the photographer to illegally stalk a celebrity.
These amendments were resisted by Californian media industry groups, who appear to have had some success in tempering the language, at least as it applies to the mainstream magazines, gossip blogs and TV shows who publish or broadcast celebrity photos taken by paparazzi.
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.
In a further concession to the media, the statue 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”.
Given the short history of the statute (its first version was introduced in 1997 in the wake of the death of Princess Diana) there is very little case law.
In 2003 Barbra Streisand filed a $50 million lawsuit in state court against a photographer who took an aerial image of her Malibu estate and posted that photo on a website.
The photographer successfully argued that his aerial photographs did not capture “personal and familial activity”, as required by the statute and the case was dismissed.
No doubt future cases will test the definitions of reasonableness and expectations of privacy.
Section 1708.8 excludes photos taken outside of the state of California. In fact, California stands alone in the lengths it goes to protect the privacy of its celebrities.
In contrast, in New York, the other hunting ground for paparazzi, there is no tort privacy at all.
The only recourse a celebrity has for the use of their image, apart from physical trespass, is where that image has been appropriated for commercial gain.
To be actionable, section 51 of the New York Civil Rights Law requires that the image was used for “advertising purposes or purposes of the trade” without written permission.
By way of example, some of the unfortunates who were filmed in the Borat film attempted, and failed, to make section 51 right of privacy claims.
There is currently before the New York State Senate a bill that would extend “appropriation rights” under section 51 to the heirs of dead celebrities – as is the case in California.
But that bill is expected to fail, as have several attempts in the past.
So it remains highly unlikely, at least in the short term, for the developments in California to lead to nationwide celebrity stalking laws.
Not that people have not been trying for some time.
Consider this quotation, taken from what is considered the leading treatise on privacy by two of America’s greatest judicial minds:
“Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right ‘to be let alone’.
Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops’.
For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons and the evil of the invasion of privacy by the newspapers.”
Those words were written by then law students (later Supreme Court justices) Samuel Warren and Louis Brandeis in the Harvard Law Review of 1890, dealing with the rise of “yellow journalism” at the time.
More than 120 years later not much has changed.
*Michael Cameron is based in New York where he works as in-house counsel for The New York Post, The Daily digital newspaper and the Community Newspaper Group.
The Gazette of Law and Journalism is Australia’s leading online media law journal. It has, since 1986, been covering court cases, legislation and policy issues that affect the media. It has a comprehensive database of materials on defamation, contempt, suppression, protection of sources, freedom of information and privacy.