California Anti-Paparazzi Bill: Privacy Law Update

California Governor Jerry Brown recently signed into law Senate Bill 606, which aims to restrict the paparazzi’s ability to photograph celebrities’ children. Specifically, the new legislation outlines penalties photographers could face for taking photos or videos of a child without parental consent, and doing so in a “harassing” manner. That is, the law prohibits behavior that terrorizes the child and serves no legitimate purpose other than financial gain, such as stalking or lying in wait to get a picture. Actresses Halle Berry, Jennifer Garner, and British singer, Adele, advocated for the law, which will take effect in January 2014.

The bill specifies that conduct is in violation of the law when it “would cause a reasonable child to suffer substantial emotional distress, and actually cause the victim to suffer substantial emotional distress.” Penalties for violating the law ranges from 10 days to one year in jail, and the steep fines vary as well. A $10,000 fine for the first violation; $20,000 for the second; and up to $30,000 for a third violation. Additionally, upon violation, parents will be permitted to bring civil actions against violators for damages and legal fees.

Supporters of the bill hold that the legislation protects children from photographers who will go to extremes to get their pictures. On the opposite end, groups like The Motion Picture Association of America, claim that the bill infringes upon our Constitution’s free speech protections. However, proponents of the bill maintain that the First Amendment is not contravened as the bill targets a photographer’s conduct, and not the act of a taking a photograph. Moreover, the bill provides that “the act of transmitting, publishing, or broadcasting a recording of the image or voice of a child does not constitute commission of the offense,” and thus only those behaving aggressively or stalking would be impacted.

If you have questions about privacy law, contact our expert Internet privacy lawyers today at 855-473-8474.

The First Amendment and Privacy Law: An Ongoing Tension

California Senate Bill 606 sits at the intersection of two constitutional values: the First Amendment’s protection of the press and free expression, and the right to privacy recognized under California’s Constitution and common law. The California anti-paparazzi statute is not the first law to navigate this tension, but it represents one of the more aggressive legislative attempts to protect individuals — specifically children — from the harmful consequences of intrusive newsgathering.

The constitutional defense the MPAA raised — that SB 606 infringes freedom of the press — was anticipated and addressed in the bill’s structure. By targeting the photographer’s conduct rather than the act of photography itself, the bill follows the framework established in cases like Galella v. Onassis, 487 F.2d 986 (2d Cir. 1973), in which the court recognized that injunctive relief against a paparazzo’s aggressive conduct was consistent with the First Amendment even though it incidentally restricted newsgathering.

California’s Broader Right of Publicity and Privacy Protections

California has the most developed body of privacy law in the United States. The California Constitution explicitly recognizes privacy as an inalienable right. Cal. Const. Art. I, § 1. Beyond constitutional protection, California’s statutory framework includes:

• Civil Code § 1708.8 — California’s anti-paparazzi statute, enacted in 1998 and amended multiple times including by SB 606 in 2013, which creates a private cause of action against physical and constructive invasions of privacy through use of a visual or auditory enhancing device.
• Civil Code § 3344 — California’s right of publicity statute, which prohibits the unauthorized commercial use of an individual’s name, voice, signature, photograph, or likeness.
• Common law right of publicity — recognized in California courts and applicable to living individuals, providing rights against appropriation of name or likeness without consent.
• Intrusion upon seclusion — a common law privacy tort requiring showing that the defendant intentionally intruded upon the plaintiff’s solitude or seclusion in a manner that would be highly offensive to a reasonable person.

Newsgathering vs. Privacy: The Legal Test

California courts apply a balancing test when evaluating privacy claims against media defendants. The plaintiff’s privacy interest is weighed against the defendant’s interest in newsgathering and free expression. The weight of the newsgathering interest depends on the subject matter: matters of genuine public concern receive greater protection than celebrity gossip or entertainment coverage.

The California Supreme Court’s decision in Shulman v. Group W Productions, Inc., 18 Cal. 4th 200 (1998), established the “newsworthy” defense for privacy intrusion claims: even if the defendant’s conduct was an intrusion on the plaintiff’s seclusion, there is no liability if the content disseminated was newsworthy. However, newsworthiness is not unlimited — the information must bear a rational connection to the subject of legitimate public concern, and the means of obtaining it must not be disproportionate to the newsgathering interest.

For paparazzi photography of celebrities’ children, California law takes the position that children have a stronger claim to privacy protection than their famous parents. The children have not voluntarily entered public life, and their privacy interests are not diminished by their parents’ celebrity. SB 606 reflects this judgment by subjecting to criminal and civil penalties conduct specifically targeted at photographing children in a harassing manner.

Right of Publicity for Minors

California Civil Code § 3344 and California’s common law right of publicity protect minors as well as adults. A parent or guardian can assert a right of publicity claim on behalf of a minor whose image has been commercially used without consent. The term of protection extends for the minor’s lifetime and for 70 years after death under California Civil Code § 3344.1 (which governs deceased personalities).

For businesses that use photographs of children in advertising or marketing materials, the consent requirement is absolute: written consent from the child’s parent or legal guardian is required before any commercial use of the child’s image. This requirement applies regardless of whether the photographs were taken in a public place, and regardless of whether the children appear to have consented themselves.

If you have questions about privacy law or regulatory compliance, contact the attorneys at Revision Legal. Call us at 855-473-8474 or complete our contact form.