By Justin Silverman

Looking to terminate intrusive paparazzi tactics, California Gov. Arnold Schwarzenegger amended a privacy law this week to allow claims against media outlets if they pay for any photo or video of celebrities with, among other things, their families spending quality time they consider to be private.

The amendment (.pdf) is to a 1998 law that in itself raises First Amendment questions. The original law created a new invasion of privacy standard that held a person liable if he or she attempted to record the plaintiff engaging in “personal or familial activity” under circumstances in which that plaintiff had a reasonable expectation of privacy. Personal or familial activity includes 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.”

The law as it was sounded broad: There’s no cut-out for news of greater importance than celebrity minutiae. And this reasonable expectation of privacy? No clarification there, which has me worried given some celebrities unreasonable expectations. Consider Jennifer Aniston in 1999 who argued that privacy included her open backyard even though neighbors need only look out their windows to see her sunbathing topless. Granted, the photographer in Aniston’s case trespassed onto the neighbor’s property, but under this law, trespass was not required. That means a nosy neighbor could have been liable as well. Don’t get me wrong, I’m all about seeing topless photos of Jennifer Aniston, but that’s not why I’m criticizing this law. I’m most concerned with what happens when it’s a celebrity engaged in activity that is truly newsworthy. I don’t like the court making judgments on what is and is not news.

The law, California Civil Code §1708.8, now goes a step further and singles out the media outlets that pay paparazzi for those photos and recordings. Here is the relevant text:

(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 not 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.

So, the law before this amendment prohibited the paparazzi photographer from taking a shot of a celebrity while with his or her family and while that celebrity had the reasonable expectation of privacy. It didn’t matter whether that photographer physically trespassed or not; just zooming in with a camera made it illegal. Now, intending to remove the financial incentive to invading a celebrity’s privacy, the amendment bars any media outlet from paying that photographer for the material. A nosy neighbor couldn’t take a photo of Aniston topless without liability and now a magazine can’t pay that neighbor for the photo without risking a claim. The result? No more topless photos of Jennifer Aniston. That seems to be the general spirit of the legislation.

But what would happen if Aniston and all her former Friends gathered for a night of partying. Does this fall under the familial definition? Is this a private affair? They’re loud, rowdy. Neighbors are complaining. A group of cameramen are able to record the entire incident from the sidewalk because Matthew Perry left the estate gate open. Is there an expectation of privacy? If the answer is yes to both questions, the cameramen are liable for constructive invasion of privacy under the law and media outlets are now liable if they pay for the recordings. But the cameramen aren’t sure if they’ve violated the law and the editors they pitch their material to aren’t sure either. So in fear of a lawsuit, the editors turn down the opportunity to inform the world of this wild reunion. Worse yet, had there occurred news of even higher importance, it too might fall under this law and the editors may still balk.

Some press advocates concede the difficulty in prosecuting under the law. As the title of this post implies, the law may provide less of a tumor on the First Amendment than a headache for those relying on its protection. Still, it casts into question the principle that the press can publish illegally obtained information provided by third parties that is of public concern. Maybe the line to be drawn is the exchange of money for that information. The government’s interest in reducing crime and stopping media organizations from paying those who commit crimes — regardless of whether you think it should be a crime to begin with — seems to be a compelling interest.

The law as it’s written though makes it difficult to know just where the current lines are drawn. In fear of crossing them, the press may play conservatively when handed a photo of a celebrity and that’s exactly what Schwarzenegger, a real-life Mr. Freeze wants: A chilling effect.

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