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?

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 prohibits.

Similarly, the statute gives no guidance on what is meant by "offensive to a reasonable person," although that term has been used in connection with traditional privacy intrusion torts. For example, in public disclosure of private facts cases a plaintiff must show (1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.⁷ Courts have stated that the existence of "offensiveness" depends on "the degree of intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder's motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded."⁸ It seems likely that a similar definition will be used for the anti-paparazzi law.

The most significant change made by the "physical invasion of privacy" provision of the anti-paparazzi law is the availability of stiffer sanctions for a trespass if the purpose of the trespass is to photograph or videotape someone. The remedies for "physical invasion of privacy" include general damages, special damages, treble damages (i.e., three times the general and special damages), punitive damages, disgorgement of profits, and equitable relief, including injunctions and restraining orders.⁹ Trebled damages and disgorgement of profits have not been awarded for simple trespass, and punitive damages are very rare in such cases.

The second "new" tort created by the anti-paparazzi statute, for "constructive invasion of privacy" represents a potentially significant shift in California law. The "constructive invasion" provision goes beyond physical invasion by providing for liability even without actual entry onto the property of another. Thus, under certain circumstances, a photographer arguably may be held liable under the statute for taking pictures of another, even if the photographer has every right to be at the place where he or she takes the picture. "Constructive invasion of privacy" occurs when (1) a person "attempts to capture ... any type of visual image, sound recording, or other physical impression" of another person engaging in a "personal or familial activity"; (2) the attempt is made "in a manner that is offensive to a reasonable person"; (3) the person photographed, videotaped, or recorded "had a reasonable expectation of privacy"; and (4) "a visual or auditory enhancing device" is used.¹⁰ As long as the "image, sound recording, or other physical impression could not have been achieved without a trespass unless the visual or auditory enhancing device was used," it does not matter that there was no physical trespass. Damages for "constructive invasion of privacy" are the same as for "physical invasion of privacy."

A key element to the "constructive invasion" provision is that the person photographed or recorded must have had a "reasonable expectation of privacy," a phrase familiar to the analysis of whether police searches are constitutional under the Fourth Amendment. If the principles developed under Fourth Amendment analysis are applied to the anti-paparazzi law, photojournalists should have some guidance and protection. Courts have held that "[s]o long as that which is viewed or heard is perceptible to the naked eye or unaided ear, the person seen or heard has no reasonable expectation of privacy in what occurs."¹¹ Thus, courts have held that there is no reasonable expectation of privacy in "open fields" outside the curtilage of a home;¹² in a yard enclosed by a chain link fence;¹³ or in a condominium-complex garage that was open to the public, used for access to the units, and contained no warning signs prohibiting entry.¹⁴ On the other hand, courts have held that there was a reasonable expectation of privacy in an enclosed backyard patio¹⁵ or behind a six foot fence surrounding a backyard, even though activities inside the backyard could be seen through knotholes and gaps in the fence.¹⁶

The anti-paparazzi law does have an important exception for investigations of suspected illegal or fraudulent activity.¹⁷ The exception applies both to law enforcement personnel and "employees of governmental agencies or other entities, public or private," who, in the course and scope of their employment and supported by an "articulable suspicion," attempt to photograph, videotape, or record another person as part of an investigation of illegal activity or other fraudulent activity "involving a violation of law or pattern of business practices adversely affecting the public health or safety." This exception should provide some protection to mainstream news media engaged in investigative reporting.

Moreover, it appears that broadcasters and publishers are immune from liability for merely using images that were captured in violation of the statute. The law states that "[s]ale, transmission, publication, broadcast, or use of any image ... shall not in itself constitute a violation" of the law. However, a person who directs or otherwise causes another person to commit a "physical" or "constructive" invasion of privacy, regardless of whether there is an employer-employee relationship, may be liable for general, special, and punitive damages.¹⁸ Thus, a media organization may not be penalized for publishing an image it obtains from someone else who violated the anti-paparazzi law, as long as the violation was not directed or caused by the publisher.

Constitutional Challenge?

The anti-paparazzi law raises significant constitutional issues. The first problem underlying the law is that it was designed and intended to be a restriction on the media. While the media may have no special protection from the general laws¹⁹-such as laws prohibiting trespass, stalking, false imprisonment, or assault and battery-the United States Supreme Court has made clear that the government may not enact laws that are directed at protected First Amendment activities without a compelling governmental interest. Newsgathering is protected by the First Amendment.²⁰ It is hard to imagine any compelling government interest that would justify singling out the media for liability under this law.

Second, the law is subject to challenge on the ground that it is vague and overly broad. The vagueness doctrine requires that law be written clearly enough to give citizens a reasonable chance to know what the law prohibits so that they may behave lawfully.²¹ The overbreadth doctrine prohibits laws that are so sweeping that, along with its allowable proscriptions, it also restricts constitutionally protected rights of free speech, press, or assembly.²² As discussed above, California's anti-paparazzi law broadly defines "personal or familial activity" to include anything that the target of a news report wants to keep private, including "interactions with the plaintiff's family or significant others, or other aspects of plaintiff's private affairs or concerns." Because these terms and others are not defined, journalists will be left to guess whether they are photographing a "private concern" or a newsworthy event that is protected by the First Amendment.

Only time will tell whether the anti-paparazzi law will withstand constitutional scrutiny. In the meantime, substantial litigation should be expected to sort out the hornet's nest of potential legal issues. The most likely immediate effect, unfortunately, will be a chilling of legitimate newsgathering activities as photojournalists ponder what they can and cannot do under the law.