The Hawaii anti-paparazzi bill eponymously named after its chief supporter is back after getting an extreme makeover, and it just took another step toward becoming law in Hawaii.  The Senate Judiciary Committee has recommended passage of a revised version of the Steven Tyler Act (SB426, S.D. 1).  The revised bill is a big improvement from the original version.  It goes a long way toward remedying the problems discussed in my previous post on the Act, and now it looks much more like the California statute after which it was patterned.  But despite the revisions, the Act remains quirky in some ways, and it still doesn’t answer the question of why we need a brand-new privacy law.

Here are the highlights of the revised bill.  The revised bill:

• creates an actual tort for constructive invasion of privacy, not just one in the name.  The original bill tried to create a constructive invasion of privacy tort, but the parameters of the tort were not well-defined.
• defines certain concepts that are key to liability under the Act, like “personal and familial activity.”
• makes it very difficult to impose liability on those publicizing or selling images or sound recordings that were captured in violation of the Act.
• carves out exceptions to liability, including one for law enforcement activities.
• creates a fairly novel process for raising a defense against invasion of privacy claims in court based on the First Amendment or its counterpart in the Hawaii State Constitution.

Now, let’s look at some of the features of the revised bill in greater detail.

Constructive Right of Privacy

The revised bill creates two types of invasion of privacy, one physical in nature and the other constructive.  Both require an intrusion into land owned or leased by the plaintiff.  This is an important revision because it gets rid of the “taking pictures at the beach” scenario (i.e., why should a celebrity complain about invasion of privacy if her picture is taken on a public beach?)

An intrusion, however, does not necessarily require a physical trespass onto the plaintiff’s property.  Spying and eavesdropping could constitute intrusion, but does not necessarily involve a physical trespass.  The tort of constructive invasion of privacy accounts for this distinction, stating that non-physical intrusions will be treated as invasions of privacy.  The use of “visual or auditory enhancing devices” to probe into the plaintiff’s private affairs, regardless of whether it involves a physical trespass, counts as an invasion of privacy.  That’s how constructive invasion of privacy works.

The original bill bungled the concept of constructive invasion of privacy by not tying liability to the use of visual or auditory enhancing devices.  The revised bill fixes that problem.

“Personal and Familial Activity”

The original bill left out definitions of key concepts.  A notable one was “personal and familial activity,” which is what the plaintiff must have been engaged in when the defendant captured images or recordings of him or her.  The original bill did not define the term.  The revised bill adopts the definition used in the California anti-paparazzi law.

Having a definition rather than none is a step in the right definition, but the definition is still too vague.  The revised bill defines “personal and familial activity” as “intimate details of the plaintiff’s personal life, interactions with the plaintiff’s family or significant others, or other aspects of the plaintiff’s private affairs or concerns.”  What range of activities does “the plaintiff’s private affairs or concerns” include?  The revised bill doesn’t say.

Liability of Sellers of Images and Recordings

One criticism of the Act was that it punishes sellers of images or recordings of celebrities.  The Act imposes liability on those who sold images or recordings that were captured in violation of the Act if they had “actual knowledge” of the violation and received compensation for the rights to the images or recordings.  One problem of the original bill is that “actual knowledge” was not defined, so the level of intent needed to trigger liability wasn’t clear.  The revised bill remedies that problem by defining “actual knowledge.”  The definition requires “actual awareness, understanding, and recognition” that the image or recording was taken or captured in violation of the Act.  That’s difficult to prove.

But the revised bill goes one step further in limiting publisher and seller liability.  The plaintiff has the burden of establishing actual knowledge by “clear and convincing evidence.”  This is the highest standard of proof in a civil matter (just below the “beyond a reasonable doubt” standard in criminal cases).

The plaintiff’s burden to prove the liability of publishers and sellers is reminiscent of the “actual malice” standard applicable in libel cases brought by a public official or public figure.  In other words, the revised bill makes it very, very difficult to prove publisher and seller liability.

The revised bill also makes clear that there is no derivative liability for publicizing or selling an image or recording if it had been previously publicized or sold before without violating the Act.

Exceptions to Liability

The revised bill creates exceptions to liability, most notably for activities relating to law enforcement and investigation into illegal conduct.  The revised bill also clarifies that the Act does not preclude suits for other legal or equitable relief under other theories, including the Hawai‘i anti-SLAPP law or a claim for publication of private facts.

First Amendment Defense

Perhaps the most interesting feature of the revised bill is an expedited process for handling defenses based on the First Amendment or its Hawaii counterpart, i.e., Hawaii Constitution, Article I, Section 4 (the revised bill does not cite specifically to Section 4, which is the section that parallels the First Amendment, so the expedited process apparently applies to a defense based on any portion of Article I is raised).  The basic idea is to give first priority to resolving questions of the constitutionality of enforcing the Act in a particular situation.

Here’s how the expedited process works.  If the defendant files a motion to dismiss a claim for violation of the Act based on First Amendment/Article I grounds, the case basically comes to a halt until the motion is decided.  The court cannot look outside the allegations in the pleadings to decide the motion, and all discovery is suspended until the motion is decided.  The court must hold a hearing and rule on the motion on an expedited basis.  If the court denies the motion, the defendant may immediately appeal the denial.

The revised bill also flips the burden of proof.  When the defendant files a motion to dismiss based on a First Amendment/Article I defense, the plaintiff has the burden to prove that, more likely than not, the plaintiff’s “claim is [not] barred by a defense based on the First Amendment of the United States Constitution or article I of the Hawaii State Constitution” (note that the quoted language in the revised bill omits the word “not”; that’s probably a typo).  If the defendant wins the motion, it can recover damages, attorneys’ fees, costs, punitive damages, and other sanctions against the plaintiff and even the attorneys and law firm representing the plaintiff.

Thoughts on the Revised Bill

The revised bill is much better than the original version.  I’m still not convinced, though, that the solution to the problem of overzealous paparazzi is a new law.  Hawaii already recognizes the privacy tort of inclusion into seclusion, and that seems to cover the type of intrusion addressed in the concept of “constructive invasion of privacy.”  The tort of intrusion into seclusion does not require a physical invasion into the plaintiff’s personal space.  The use of visual or auditory enhancing equipment to remotely gain access to the plaintiff’s private affairs would seem already covered under existing law.  Creating a new law to deal with the issue would add little new benefits while potentially creating more problems.

Take the expedited process for dealing with First Amendment issues, for example.  According to a Standing Committee Report, the expedited process was created in response to constitutional concerns about the Act.  As a lawyer who represents media defendants, I welcome extra procedural protections for airing out First Amendment issues.  But I do think the expedited process is somewhat sloppy.  The process gives too much incentive to a defendant to respond initially to a Tyler Act claim with First Amendment defenses, even unmeritorious ones.  The defendant has nothing to lose and everything to gain by using such a tactic.  By filing a motion to dismiss on First Amendment grounds, the defendant can freeze discovery in the case, shift the burden of proof to the plaintiff, and potentially reap the benefit of recovering fees, costs, and damages from the plaintiff, his or her attorney, and even the attorneys’ law firm!  There are few circumstances in which a defendant should not raise a First Amendment defense.  And on the flip side, true victims of constructive invasion of privacy might think twice before suing under Tyler Act due to the risks involved.  Which again begs the question: Do we really need the Tyler Act?