Government,
Intellectual Property
Jan. 22, 2014
SB 606: Attempt to address childish behavior of paparazzi
In September, the Legislature passed Senate Bill 606, amending Section 11414 of the California Penal Code.
Andrew J. Thomas
Partner, Jenner & Block LLP
Phone: (213) 239-5100
Email: ajthomas@jenner.com
Harvard Univ Law School; Cambridge MA
Andrew represents content owners in copyright, trademark and First Amendment matters. CONTENT MATTERS is a monthly column devoted to matters of interest to those who create content of all kinds (entertainment, news, software, advertising, etc.) and bring that content to market. Our hope is to shed light on key issues facing the creative content community. If you have questions, comments or topic ideas, let us know. Because content matters.
In September, the Legislature passed Senate Bill 606, amending Section 11414 of the California Penal Code. Under the existing rule, a person who "intentionally harasses the child or ward of any other person because of that person's employment, is guilty of a misdemeanor." "Harasses" is defined as "knowing and willful conduct directed at a specific child that seriously alarms, annoys, torments, or terrorizes the child, and that serves no legitimate purpose" where the conduct is "such as would cause a reasonable child to suffer substantial emotional distress, and actually cause[s] the victim to suffer substantial emotional distress."
SB 606 modifies the existing criminal harassment law in three important ways: (1) it clarifies that the term "harasses" includes "conduct occurring during the course of any actual or attempted recording of the child's or ward's image or voice, or both, without the express consent of the parent or legal guardian of the child or ward, by following the child's or ward's activities or by lying in wait"; (2) it enhances the punishment for the offense; and (3) it provides a derivative civil cause of action against the harasser. While the existing harassment law is designed to protect the children of persons engaged in high-profile or controversial occupations from violence or retaliation by members of the public, the photography-specific modifications to the law reveal an undisguised hostility towards paparazzi, and they raise significant First Amendment questions by singling out for special punishment the newsgathering activities of photojournalists. The bill's supporters maintain that the new language concerning attempts to record a child's image or voice merely specifies one of the ways that harassment might occur. Taking a photograph of a child without parental consent - even if by following the child or lying in wait - still does not constitute harassment per se. Instead, the photographer's behavior must amount to conduct that "seriously alarms, annoys, torments, or terrorizes the child" and be such that would cause a reasonable child to suffer substantial emotional distress and actually cause the child to suffer such emotional distress. The statute's proscription is limited to harassing conduct that is intentional, knowing, and willful and directed at a specific child. If a photographer's conduct meets all of these elements, it would constitute an offense, whether under the existing or amended law. The fact that "harassing" conduct by a photographer results in an offense under either the existing or amended law, however, begs the question of why the Legislature undertook the effort to revise the law in the first place. Emphasizing that attempts to capture a child's image or voice might result in criminal liability serves an explicit warning to paparazzi that will likely chill even benign attempts to photograph a celebrity who is out in public with his or her child. Moreover, the law's extensive reliance on so many vague terms - such as "alarms," "annoy" and "substantial emotional distress" - is likely to have the effect of deterring other photographers and visual journalists from engaging in legitimate journalistic activities out of fear of getting swept into the broad reach of the law. Without further clarification of the law's pivotal terms, such as "no legitimate purpose," "annoy," "reasonable child" and "substantial emotional distress," SB 606's classification of photography as a form of harassment will likely have the unfortunate effect of causing photographers to censor themselves in exercising their First Amendment rights to take photographs of public figures in public places.Submit your own column for publication to Diana Bosetti
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