We recently discussed the English law of harassment in relation to the media.   We have also considered the “positive obligation” to protect Article 8 privacy rights as developed by the Court of Human Rights and on the “new law of privacy” in domestic law.

The following words echo many of the recent statements of the Court of Human Rights and English Courts about privacy:

“The right to privacy and respect for private lives of individuals and their families must be balanced against the right of the media to gather and report the news. The right of a free press to report details of an individual’s private life must be weighed against the rights of the individual to enjoy liberty and privacy.”

But these a not words of European judges – they in fact derive from the Californian State Assembly Bill No. 524 which was approved by Governor Arnold Schwarzenegger on 11 October, 2009 and came into force on 1st January 2010 – a measure designed to  limit the activities of the so-called “stalkerazzi”.

According to the Los Angeles Times, California Assembly Speaker Karen Bass (D-Los Angeles) introduced the bill after Jenifer Aniston organized a group of celebrities and entertainment security experts to describe the seriousness of the problem to her. Not only was this bill pushed by the Screen Actors Guild (SAG), it was also supported by the City of Los Angeles and the LA County Sheriff’s Department..

It is worth setting out in sections 1 and 2 of the Bill.

“SECTION 1. The Legislature finds and declares all of the following:

(a) Individuals and their families have been harassed and endangered by being persistently followed or chased in a manner that puts them in reasonable fear of bodily injury, and in danger of serious bodily injury or even death, by photographers, videographers, and audio recorders attempting to capture images or other reproductions of their private lives for commercial purposes.

(b) The legitimate privacy interests of individuals and their families have been violated by photographers, videographers, and audio recorders who physically trespass in order to capture images or other reproductions of their private lives for commercial purposes, or who do so constructively through intrusive modern visual or auditory enhancement devices, such as powerful telephoto lenses and hyperbolic microphones that enable invasion of private areas that would otherwise be impossible without trespassing.

(c) Such harassment and trespass threaten not only professional public persons and their families, but also private persons and families for whom personal tragedies or circumstances beyond their control create media interest.

(d) There is no right, under the United States Constitution or the California Constitution, to persistently follow or chase another in a manner that creates a reasonable fear of bodily injury, to trespass, or to constructively trespass through the use of intrusive visual or auditory enhancement devices.

(e) The right to privacy and respect for private lives of individuals and their families must be balanced against the right of the media to gather and report the news. The right of a free press to report details of an individual’s private life must be weighed against the rights of the individual to enjoy liberty and privacy.

SEC. 2. Section 1708.8 of the Civil Code is amended to read:

1708.8. (a) A person is liable for physical invasion of privacy when the defendant knowingly enters onto the land of another person without permission or otherwise committed a trespass in order to physically invade the privacy of the plaintiff 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.

(b) 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.

(c) An assault committed with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff is subject to subdivisions (d), (e), and (h).

(d) A person who commits any act described in subdivision (a), (b), or (c) is liable for up to three times the amount of any general and special damages that are proximately caused by the violation of this section. This person may also be liable for punitive damages, subject to proof according to Section 3294. If the plaintiff proves that the invasion of privacy was committed for a commercial purpose, the defendant shall also be subject to disgorgement to the plaintiff of any proceeds or other consideration obtained as a result of the violation of this section. A person who comes within the description of this subdivision is also subject to a civil fine of not less than five thousand dollars ($5,000) and not more than fifty thousand dollars ($50,000).

(e) A person who directs, solicits, actually induces, or actually causes another person, regardless of whether there is an employer-employee relationship, to violate any provision of subdivision (a), (b), or (c) is liable for any general, special, and consequential damages resulting from each said violation. In addition, the person that directs, solicits, actually induces, or actually causes another person, regardless of whether there is an mployer-employee relationship, to violate this section shall be liable for punitive damages to the extent that an employer would be subject to punitive damages pursuant to subdivision (b) of Section 3294. A person who comes within the description of this subdivision is also subject to a civil fine of not less than five thousand dollars ($5,000) and not more than fifty thousand dollars ($50,000).

(f) (1) The transmission, publication, broadcast, sale, offer for sale, or other use of any visual image, sound recording, or other physical impression that was taken or captured in violation of subdivision (a), (b), or (c) shall t constitute a violation of this section unless the person, in the first transaction following the taking or capture of the visual image, sound recording, or other physical impression, publicly transmitted, published, broadcast, sold or offered for sale, the visual image, sound recording, or other physical impression with actual knowledge that it was taken or captured in violation of subdivision (a), (b), or (c), and provide compensation, consideration, or remuneration, monetary or otherwise, for the rights to the unlawfully obtained visual image, sound recording, or other physical impression.

(2) For the purposes of paragraph (1), “actual knowledge” means actual awareness, understanding, and recognition, obtained prior to the time at which the person purchased or acquired the visual image, sound recording, or other physical impression, that the visual image, sound recording, or other physical impression was taken or captured in violation of subdivision.”

The full text is here . There have been a number of US articles concerning the new Law, and an interesting blog at Concurring Opinion.

The Bill covers not only harassment, which in England is covered by the Protection Of Harassment Act 1997, but also right of privacy which in the UK is covered the claim for the misuse of private information as reformulated by the Court of Appeal in Murray v Big Pictures [2008] EWCA Civ 446.

Whilst there are differences,  the similarities with the England law is remarkable especially since Bill 524 derives from the USA where the “free speech” rights of the First Amendment are usually a “trump card”.    There have, predictably, already been suggestions that the new law is unconstitutional.

Ironically, if a similar statute were to be introduced in a Council of Europe Member State the European Court of Human Rights might well find the the Californian legislation’s provision for “triple damages” and substantial civil fines were disproportionate and hence a violation of Article 10.