Code Details

Civil Code – CIV
DIVISION 3. OBLIGATIONS [1427 – 3273.69] ( Heading of Division 3 amended by Stats. 1988, Ch. 160, Sec. 14. )
PART 3. OBLIGATIONS IMPOSED BY LAW [1708 – 1725] ( Part 3 enacted 1872. )

Exact Statute Text

(a) A person is liable for physical invasion of privacy when the person knowingly enters onto the land or into the airspace above the land of another person without permission or otherwise commits a trespass in order to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a private, personal, or familial activity and the invasion occurs in a manner that is offensive to a reasonable person.

(b) A person is liable for constructive invasion of privacy when the person attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a private, personal, or familial activity, through the use of any device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the device was used.

(c) An assault or false imprisonment committed with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff is subject to subdivisions (d), (e), and (h).

(d) A person who commits any act described in subdivision (a), (b), or (c) is liable for up to three times the amount of any general and special damages that are proximately caused by the violation of this section. This person may also be liable for punitive damages, subject to proof according to Section 3294. If the plaintiff proves that the invasion of privacy was committed for a commercial purpose, the person shall also be subject to disgorgement to the plaintiff of any proceeds or other consideration obtained as a result of the violation of this section. A person who comes within the description of this subdivision is also subject to a civil fine of not less than five thousand dollars ($5,000) and not more than fifty thousand dollars ($50,000).

(e) A person who directs, solicits, actually induces, or actually causes another person, regardless of whether there is an employer-employee relationship, to violate any provision of subdivision (a), (b), or (c) is liable for any general, special, and consequential damages resulting from each said violation. In addition, the person that directs, solicits, actually induces, or actually causes another person, regardless of whether there is an employer-employee relationship, to violate this section shall be liable for punitive damages to the extent that an employer would be subject to punitive damages pursuant to subdivision (b) of Section 3294. A person who comes within the description of this subdivision is also subject to a civil fine of not less than five thousand dollars ($5,000) and not more than fifty thousand dollars ($50,000).

(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 provided compensation, consideration, or remuneration, monetary or otherwise, for the rights to the unlawfully obtained visual image, sound recording, or other physical impression.

(2) For the purposes of paragraph (1), “actual knowledge” means actual awareness, understanding, and recognition, obtained prior to the time at which the person purchased or acquired the visual image, sound recording, or other physical impression, that the visual image, sound recording, or other physical impression was taken or captured in violation of subdivision (a), (b), or (c). The plaintiff shall establish actual knowledge by clear and convincing evidence.

(3) Any person that publicly transmits, publishes, broadcasts, sells, or offers for sale, in any form, medium, format, or work, a visual image, sound recording, or other physical impression that was previously publicly transmitted, published, broadcast, sold, or offered for sale by another person, is exempt from liability under this section.

(4) If a person’s first public transmission, publication, broadcast, or sale or offer for sale of a visual image, sound recording, or other physical impression that was taken or captured in violation of subdivision (a), (b), or (c) does not constitute a violation of this section, that person’s subsequent public transmission, publication, broadcast, sale, or offer for sale, in any form, medium, format, or work, of the visual image, sound recording, or other physical impression, does not constitute a violation of this section.

(5) This section applies only to a visual image, sound recording, or other physical impression that is captured or taken in California in violation of subdivision (a), (b), or (c) after January 1, 2010, and shall not apply to any visual image, sound recording, or other physical impression taken or captured outside of California.

(6) Nothing in this subdivision shall be construed to impair or limit a special motion to strike pursuant to Section 425.16, 425.17, or 425.18 of the Code of Civil Procedure.

(7) This section shall not be construed to limit all other rights or remedies of the plaintiff in law or equity, including, but not limited to, the publication of private facts.

(g) This section shall not be construed to impair or limit any otherwise lawful activities of law enforcement personnel or employees of governmental agencies or other entities, either public or private, who, in the course and scope of their employment, and supported by an articulable suspicion, attempt to capture any type of visual image, sound recording, or other physical impression of a person during an investigation, surveillance, or monitoring of any conduct to obtain evidence of suspected illegal activity or other misconduct, the suspected violation of any administrative rule or regulation, a suspected fraudulent conduct, or any activity involving a violation of law or business practices or conduct of public officials adversely affecting the public welfare, health, or safety.

(h) In any action pursuant to this section, the court may grant equitable relief, including, but not limited to, an injunction and restraining order against further violations of subdivision (a), (b), or (c).

(i) The rights and remedies provided in this section are cumulative and in addition to any other rights and remedies provided by law.

(j) It is not a defense to a violation of this section that no image, recording, or physical impression was captured or sold.

(k) For the purposes of this section, “for a commercial purpose” means any act done with the expectation of a sale, financial gain, or other consideration. A visual image, sound recording, or other physical impression shall not be found to have been, or intended to have been, captured for a commercial purpose unless it is intended to be, or was in fact, sold, published, or transmitted.

(l) (1) For the purposes of this section, “private, personal, and familial activity” includes, but is not limited to:

(A) Intimate details of the plaintiff’s personal life under circumstances in which the plaintiff has a reasonable expectation of privacy.

(B) Interaction with the plaintiff’s family or significant others under circumstances in which the plaintiff has a reasonable expectation of privacy.

(C) If and only after the person has been convicted of violating Section 626.8 of the Penal Code, any activity that occurs when minors are present at any location set forth in subdivision (a) of Section 626.8 of the Penal Code.

(D) Any activity that occurs on a residential property under circumstances in which the plaintiff has a reasonable expectation of privacy.

(E) Other aspects of the plaintiff’s private affairs or concerns under circumstances in which the plaintiff has a reasonable expectation of privacy.

(2) “Private, personal, and familial activity” does not include illegal or otherwise criminal activity as delineated in subdivision (g). However, “private, personal, and familial activity” shall include the activities of victims of crime in circumstances under which subdivision (a), (b), or (c) would apply.

(m) (1) A proceeding to recover the civil fines specified in subdivision (d) or (e) may be brought in any court of competent jurisdiction by a county counsel or city attorney.

(2) Fines collected pursuant to this subdivision shall be allocated, as follows:

(A) One-half shall be allocated to the prosecuting agency.

(B) One-half shall be deposited in the Arts and Entertainment Fund, which is hereby created in the State Treasury.

(3) Funds in the Arts and Entertainment Fund created pursuant to paragraph (2) may be expended by the California Arts Council, upon appropriation by the Legislature, to issue grants pursuant to the Dixon-Zenovich-Maddy California Arts Act of 1975 (Chapter 9 (commencing with Section 8750) of Division 1 of Title 2 of the Government Code).

(4) The rights and remedies provided in this subdivision are cumulative and in addition to any other rights and remedies provided by law.

(n) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

(Amended by Stats. 2015, Ch. 521, Sec. 1. (AB 856) Effective January 1, 2016.)

Civil Code § 1708.8 Summary

California Civil Code § 1708.8 establishes liability for individuals who invade another person’s privacy by attempting to capture images, sounds, or other physical impressions of them engaging in private activities. The statute outlines two main forms of invasion:

1. Physical Invasion of Privacy (Subdivision a): This occurs when someone knowingly trespasses onto another person’s land or airspace (without permission) to capture visual images, sound recordings, or other physical impressions of the plaintiff engaged in a “private, personal, or familial activity.” The key is that the invasion must be offensive to a reasonable person.
2. Constructive Invasion of Privacy (Subdivision b): This covers situations where someone uses a device to capture such images, sounds, or impressions, even without a physical trespass, if the impression could not have been obtained without the device *unless* a trespass occurred. Again, the act must be offensive to a reasonable person.

The statute also addresses situations where an assault or false imprisonment is committed with the intent to capture such impressions (Subdivision c).

Crucially, the law defines “private, personal, and familial activity” broadly, including intimate details of personal life, family interactions, and activities on residential property, all under circumstances where a reasonable expectation of privacy exists. It explicitly excludes illegal or criminal activity, but includes activities of crime victims.

Penalties for violating this statute are severe, including up to triple the amount of actual (general and special) damages, potential punitive damages, and civil fines ranging from $5,000 to $50,000. If the invasion was for a commercial purpose, the violator may also have to disgorge any proceeds. The statute extends liability to those who direct, solicit, or cause another person to commit such a violation.

Significantly, the law clarifies limitations on liability for those who *transmit or publish* unlawfully obtained content. Generally, a publisher is only liable if they were involved in the *first* transaction of the content, had actual knowledge it was unlawfully obtained, and provided compensation for it. Subsequent transmissions or publications by others are typically exempt.

The statute also grants courts the power to issue injunctions and restraining orders to prevent further violations and specifies that it applies only to actions taken in California after January 1, 2010. It also carves out exceptions for lawful activities by law enforcement and governmental agencies with articulable suspicion.

Purpose of Civil Code § 1708.8 – Physical Invasion of Privacy

California Civil Code § 1708.8 was enacted to strengthen protections for individual privacy against increasingly sophisticated methods of intrusion, particularly in the context of media and paparazzi surveillance. The legislative intent behind this statute is to provide a clear civil remedy for persons whose private lives are intruded upon through physical means or advanced technologies like drones and long-range cameras. It addresses the problem of individuals, especially celebrities and public figures, being relentlessly pursued and photographed or recorded in intimate settings where they have a reasonable expectation of privacy, such as their homes or during personal activities.

By specifically targeting “physical invasion” (trespass) and “constructive invasion” (using devices to circumvent trespass), the law aims to deter the aggressive tactics often employed to capture images and sounds for commercial gain. It recognizes that traditional trespass laws might not fully cover all forms of privacy invasion, especially those involving modern technology that can capture images or sounds from a distance without physically entering property. The inclusion of substantial damages, punitive damages, and disgorgement for commercial purposes underscores the state’s commitment to disincentivizing such exploitative practices and safeguarding the peace and solitude of its residents. Ultimately, this statute enhances personal privacy rights in California, providing a legal shield against intrusive and offensive surveillance.

Real-World Example of Civil Code § 1708.8 – Physical Invasion of Privacy

Imagine Sarah, a successful actress, lives in a secluded home in the Hollywood Hills. She values her privacy and has high fences and security measures. One afternoon, while Sarah is relaxing by her pool in her backyard with her young children, a freelance photographer, Mark, uses a high-powered telephoto lens from an adjacent hillside, outside her property line, to capture images of her and her family. He also uses a drone equipped with a camera to hover discreetly over her property, capturing additional footage and sound recordings of their private conversations. Mark intends to sell these images and recordings to a tabloid magazine.

In this scenario, Mark’s actions could constitute a constructive invasion of privacy under Civil Code § 1708.8(b). Even though he didn’t physically trespass onto Sarah’s land (his initial position was off her property), he used a device (telephoto lens and drone) to capture images and sounds of Sarah engaged in a “private, personal, or familial activity” (relaxing with her children in her backyard, where she has a reasonable expectation of privacy). These impressions could not have been achieved without a trespass (or the use of a device designed to circumvent a trespass). Furthermore, hovering a drone and capturing intimate moments would likely be considered “offensive to a reasonable person.”

If Mark had instead climbed over Sarah’s fence and hid in her bushes to capture the images, that would be a clear case of physical invasion of privacy under Civil Code § 1708.8(a), as he knowingly entered her land without permission to capture images of a private activity in an offensive manner. Sarah could pursue a civil lawsuit against Mark, seeking significant damages, punitive damages, and disgorgement of any profits he made from selling the images.

Related Statutes

• Civil Code § 1708.5 – Stalking: While Civil Code § 1708.8 focuses on the invasion of privacy through recording or capturing impressions, Civil Code § 1708.5 addresses the broader tort of stalking, which involves a pattern of conduct intended to harass, annoy, or alarm another person, and which causes that person to suffer substantial emotional distress. In some cases, repeated attempts to capture images or recordings in violation of § 1708.8 could also form part of a larger stalking pattern.
• Civil Code § 3294 – Exemplary Damages: This statute, directly referenced in § 1708.8(d) and (e), governs the award of punitive damages. Punitive damages are intended to punish a defendant for particularly egregious conduct (malice, oppression, or fraud) and deter similar behavior in the future, rather than merely compensating the plaintiff for losses. Given that § 1708.8 allows for punitive damages, § 3294 sets the standard for when and how they can be awarded.
• Code of Civil Procedure §§ 425.16, 425.17, 425.18 – Anti-SLAPP Statutes: These sections, referenced in § 1708.8(f)(6), deal with “Strategic Lawsuits Against Public Participation” (SLAPPs). They provide a mechanism for defendants to quickly dismiss lawsuits that are primarily aimed at chilling their free speech rights. While § 1708.8 is designed to protect privacy, its application might sometimes trigger anti-SLAPP motions if the defendant claims their image/sound capture was part of a protected expressive activity. Section 1708.8(f)(6) clarifies that the privacy statute does not limit these anti-SLAPP protections, suggesting a balancing act between privacy and free speech.
• Penal Code § 626.8 – Trespassing on School Grounds: This criminal statute is specifically referenced in Civil Code § 1708.8(l)(1)(C), which states that certain activities occurring on school grounds (as defined in PC 626.8) involving minors can be considered “private, personal, and familial activity” for the purpose of the privacy statute, but *only* if the person has been convicted of violating PC 626.8. This creates a specific, narrow linkage between the civil privacy tort and a criminal trespass offense related to schools.
• Common Law Torts of Invasion of Privacy: While § 1708.8 creates a statutory cause of action, it does not limit other rights or remedies (as stated in § 1708.8(f)(7) and (i)). This includes established common law torts of invasion of privacy, such as:

* Intrusion upon seclusion: This involves intentionally intruding, physically or otherwise, upon the solitude or seclusion of another or his/her private affairs or concerns, where the intrusion would be highly offensive to a reasonable person. Civil Code § 1708.8 is a statutory variant of this common law tort, specifically for image/sound capture with trespass or device use.
* Public disclosure of private facts: This occurs when highly offensive private information about a person is publicly disclosed, and that information is not of legitimate concern to the public. While related to privacy, this tort focuses on publication, whereas § 1708.8 focuses on the act of capturing.
* False light: Involves placing a person in a false light in the public eye that would be highly offensive to a reasonable person.
* Appropriation of name or likeness: Involves using a person’s name or likeness for commercial advantage without permission.

Case Law Interpreting Civil Code § 1708.8 – Physical Invasion of Privacy

California Civil Code § 1708.8, particularly with its amendments in 2010 and 2016, is a relatively specific statute. While general invasion of privacy principles are well-established in California common law, published appellate decisions that extensively interpret and apply the precise elements of Civil Code § 1708.8 are not as abundant as for more foundational privacy torts. Many cases that cite Civil Code § 1708.8 do so in conjunction with other privacy claims or in the context of anti-SLAPP motions (Code of Civil Procedure § 425.16), where the court assesses whether the plaintiff has a probability of prevailing on their claim without fully delving into a detailed interpretation of each statutory element.

One notable case where Civil Code § 1708.8 was discussed, albeit in the context of an anti-SLAPP motion, is:

• L.A. Times Communications LLC v. Superior Court, 210 Cal. App. 4th 1152 (2012)

* [Link to L.A. Times Communications LLC v. Superior Court on Google Scholar](https://scholar.google.com/scholar_case?case=1531336423986884393&q=%22Civil+Code+1708.8%22&hl=en&as_sdt=40000006)
* This case involved a lawsuit against the Los Angeles Times for publishing a photograph of a plaintiff in a private moment. While the primary issue revolved around the anti-SLAPP statute and the newsworthiness defense, the court acknowledged the existence of Civil Code § 1708.8 as one of the statutory bases for invasion of privacy claims. The discussion in this case illustrates how § 1708.8 can be raised in litigation, even if the primary legal battle focuses on other procedural or substantive defenses like free speech or public interest.

It is important for both legal professionals and general readers to understand that the application of § 1708.8 often involves factual determinations regarding “reasonable expectation of privacy,” “private, personal, or familial activity,” and whether the conduct was “offensive to a reasonable person.” These are fact-intensive inquiries that are often decided at the trial court level. As the legal landscape surrounding privacy and technology continues to evolve, further appellate guidance on the specific nuances of Civil Code § 1708.8 may emerge.

Why Civil Code § 1708.8 Matters in Personal Injury Litigation

Civil Code § 1708.8 plays a crucial role in California personal injury litigation by providing a statutory basis for claims arising from privacy violations, specifically those involving intrusive capture of images, sounds, or other physical impressions. While “personal injury” often brings to mind physical harm, it broadly encompasses any injury to a person’s body, mind, or emotions. An invasion of privacy, even without physical contact, can cause significant emotional distress, anxiety, humiliation, and psychological trauma – all recognized components of personal injury damages.

For plaintiffs, this statute offers several powerful advantages:

• Clear Cause of Action: It establishes a clear, statutory cause of action for a specific type of privacy invasion that might be difficult to prosecute under broader common law torts alone, especially with the inclusion of “constructive invasion” for device-based intrusions.
• Enhanced Damages: The provision for up to triple damages (treble damages) for general and special damages is a significant incentive for plaintiffs and a substantial deterrent for defendants. This means victims can recover far more than their direct losses.
• Punitive Damages: The availability of punitive damages under Civil Code § 3294 allows courts to punish egregious conduct, offering additional compensation and sending a strong message against future violations.
• Disgorgement of Profits: For commercially motivated invasions, the ability to disgorge profits directly attacks the financial incentive driving much of this invasive behavior, making it less profitable for offenders.
• Civil Fines: The civil fines, payable to the Arts and Entertainment Fund, add another layer of financial penalty, even if an individual plaintiff doesn’t personally receive that specific recovery.
• Injunctive Relief: The ability to seek injunctions and restraining orders provides immediate protection, stopping ongoing or threatened privacy invasions.

For attorneys specializing in personal injury, understanding Civil Code § 1708.8 is vital:

• Expanded Scope of Claims: It allows for claims where traditional physical injury is absent but severe emotional distress or reputational harm exists due to privacy violations. This expands the types of cases a personal injury attorney can handle.
• Strong Deterrent: The severe penalties act as a powerful deterrent, often leading defendants to settle rather than risk substantial judgments.
• Complex Factual Analysis: Cases under this statute often require a detailed investigation into the “reasonable expectation of privacy,” the nature of the “private, personal, or familial activity,” and the “offensiveness” of the invasion, requiring skilled legal analysis and presentation of facts.

In essence, Civil Code § 1708.8 is a modern, robust legal tool that empowers individuals to fight back against the unauthorized and offensive capture of their private moments, recognizing that the emotional and psychological harm from such invasions constitutes a legitimate personal injury. It reinforces the right to privacy in an era where technology constantly blurs the lines of public and private life.