DEFENDING CLAIMS UNDER CIVIL CODE § 1708.8(f)(1)© 2010 Karen A. Henry, Esq.

Text of the Statute

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.

When Does A Transmission, Publication, Broadcast, Sale, Offer For Sale, Or Other Use Violate The Section 1708.8(f)(1)?

When it’s the first transaction after the image, sound recording, and/or physical impression was unlawfully obtained; and

When the image, sound recording, and/or physical impression is transmitted, published, broadcast, sold/offered for sale, or otherwise used with actual knowledge that it was taken or captured in violation of the statute; and

When the publisher pays for the unlawfully obtained image, sound recording, or other physical impression.

Can Section 1708.8(f)(1) Withstand A First Amendment Challenge As Applied To A Celebrity?

GENERAL PROPOSITION:

State officials generally may not constitutionally punish publication of lawfully obtained, truthful information about a matter of public concern. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 527 (2001); The Florida Star v. B.J.F., 491 U.S. 524, 533 (1989); Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 102 (1979); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975).

Bartnicki v. Vopper

Facts: An unknown person intercepted and recorded the cellular

telephone conversation between the president of a local teachers’ union and the union’s “chief negotiator” about the timing of a proposed strike, difficulties created by public comment on the negotiations, and the need for a dramatic response to the school board’s intransigence;

At one point during the conversation, the president of the local union said: “If they’re not gonna move for three percent, we’re gonna have to go to their, their homes… To blow off their front porches, we’ll have to do some work on some of those guys.”

Bartnicki Contd.

The parties settled the labor dispute, and in connection with news reports about the settlement, a radio commentator who had been critical of the union in the past played a tape of the intercepted conversation on his public affairs talk show.

Another station also broadcast the tape, and the local newspapers published it contents.

The president of the local union and the chief negotiator sued the radio commentator and other media representatives for violating the proscriptions on wiretapping set forth in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, (18 U.S.C. § 2511), and an identical Pennsylvania statute, (18 Pa. C.S. § 5725(a)).

Bartnicki Contd.

Section 2511(1) defined five offenses punishable by a fine of not more than $10,000, by imprisonment for not more than five years, or by both, including: Any person who “willfully discloses, or endeavors to

disclose, to any other person the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subsection.”

Congress enlarged Title III’s coverage to apply to electronic as well as oral and wire communications.

Bartnicki Contd.

Parties filed cross-motions for summary judgment. Respondents argued, among other things, that even if

they had violated the statute by disclosing the intercepted conversation, those disclosures were protected by the First Amendment.

District court rejected this defense because the statute was a content-neutral law of general applicability that contained no indicia of prior restraint or the chilling of free speech.

Bartnicki Contd.

District court granted a motion for an interlocutory appeal,and certified two questions of law:1. Whether imposition of liability on the media defendants

under the wiretapping statutes solely for broadcasting the newsworthy tape on the radio/public affairs program, when the tape was illegally intercepted and recorded by unknown persons who were not agents of the defendants, violates the First Amendment; and

2. Whether imposition of liability solely for providing the anonymously intercepted and recorded tape to the media defendants violates the First Amendment.

Bartnicki Contd.

The Third Circuit found that the federal and Pennsylvania wiretapping statutes were content-neutral and subject to intermediate scrutiny.

Applying that standard, the majority of the Third Circuit panel held that the statutes were invalid because they deterred significantly more speech than necessary to protect the privacy interests at stake.

The dissent concluded that the prohibition against disclosures was necessary in order to remove the incentive for illegal interceptions and to preclude compounding the harm caused by such interceptions through wider dissemination. (The dissent was in line with a similar case decided by D.C. Circuit.)

Bartnicki Contd. The Court made the following assumptions in analyzing the

constitutional question: The interception was intentional, and thus unlawful; Respondents’ had a reason to know that the interception

was unlawful; Respondents played no part in the illegal interception; Respondents obtained the tapes lawfully; and The subject matter of the conversation was a matter of

public concern. The Court thus concluded that the media defendants’

disclosures violated the federal and state statutes and addressed the sole issue of whether application of the statutes under the specific set of facts of the case violated the First Amendment.

Bartnicki Contd. While the Court agreed that the statutes were content-neutral

laws of general applicability, it found that the naked prohibition against disclosures is fairly characterized as a regulation of pure speech.

Relying on Smith v. Daily Mail Publ’g Co., the Court noted that, as a general matter, state action to punish the publication of truthful information seldom can satisfy constitutional standards. Therefore, where a newspaper has lawfully obtained truthful information about a matter of public significance, state officials cannot constitutionally punish publication of that information, absent a need of the highest order.

Bartnicki Contd.

The Court then evaluated whether the two interests identified by the government justified restrictions on speech.

Bartnicki Contd.

First Interest: Removing an incentive for parties to intercept private conversations.

Court rejected this purported justification because it did not find that punishing disclosures of lawfully obtained information concerning matters of public interest was an acceptable means of serving that interest.

Bartnicki Contd.

Second Interest: Minimizing the harm to persons whose conversations have been illegally intercepted. While the Court found that this was a

considerably stronger interest, it concluded that such privacy interests had to yield when the consequence would be to sanction the publication of truthful information that was a matter of public concern.

Section 1708.8(f)(1) Is Strikingly Similar To Section 2511(1)(c), And Is Likely Unconstitutional As Applied To Celebrity Plaintiffs

Section 2511(1)(c):Makes it unlawful intentionally to disclose the contents of an unlawfully intercepted communication if the person disclosing it knew or had reason to know that the information had been illegally intercepted.

Section 1708.8(f)(1):Makes it unlawful intentionally to disclose images/sound recordings/physical impressions unlawfully taken/captured if the person disclosing it knew that the image/sound recording/physical impression had been illegally obtained and they paid for it.

The Stated Interests Also Are Strikingly Similar

Interests Re Section 2511(1)(c):

1. Removing the incentive for parties to intercept private conversations; and

2. Minimizing the harm to persons whose conversations have been illegally intercepted.

Interests Re Section 1708.8(f)(1):

1. Cutting off the financial incentives to capture images/sound recordings/physical impressions in a manner that violates the statute; and

2. Strengthening the privacy rights of all Californians.

Given These Similarities, U.S. Supreme Court’s Rationale In Bartnicki Would Seem To Inform The First Amendment Analysis Here

Applying The Bartnicki Court’s Analysis To Section 1708.8(f)(1) In Three Easy Steps

STEP ONE:

Section 1708.8(f)(1) cannot punish publication of lawfully obtained, truthful information about a matter of public concern, absent a need of the highest order.

STEP TWO:The first interest identified by the California Legislature – cutting off the financial incentive to capture images in violation of the statute – is not a “need of the highest order.” As the Bartnicki Court explained, “it would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law abiding third party.” 532 U.S. at 530.

STEP THREEWhile the interest in strengthening the privacy rights of all Californians is stronger than the interest in removing financial incentives, it still does not trump the First Amendment because, as the Court concluded in Bartnicki, “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” 532 U.S. at 535.

Matters of Public Interest

Is the public interested in personal and familial information about celebrities?

Other Barriers To Successfully Proving Liability And Obtaining Damages Under Section 1708.8(f)(1)

Anti-SLAPP Statute Attorneys’ fees and costs

Evidentiary Matters “Actual Knowledge” and “Clear and Convincing”; “First Transaction”; Proving date image was created; California’s Shield Law;

Contact InformationKaren A. Henry, Esq.

Davis Wright Tremaine LLP

865 S. Figueroa Street, Suite 2400

Los Angeles, California 90012

Telephone: (213) 633-6800

Email: karenhenry@dwt.com