Download Section 1708.8(f)(1) - Davis Wright Tremaine

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 THREE
While 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 Information
Karen A. Henry, Esq.
Davis Wright Tremaine LLP
865 S. Figueroa Street, Suite 2400
Los Angeles, California 90012
Telephone: (213) 633-6800
Email: [email protected]