Jennifer Aniston Nude Photos and the Anti-Paparazzi Act

jennifer-aniston1a.jpgpaparazzi1a.jpgJennifer Aniston is suing a paparazzi who took nude photos of her. In a complaint filed in Los Angeles Superior Court, Aniston claims that Peter Brandt took topless photographs of her from a significant distance from her home. He used a high-powered telephoto lens to photograph her at her home. Aniston’s lawyers claim the photos were taken from over a mile away, but Brandt claims that this would be “impossible . . . unless you have something from NASA.”

Jack Chin at CrimProf expresses disbelief at the case:

Nude Photos of Jennifer Aniston can’t possibly be “illegal” if taken from a lawful vantagepoint with commercially available and commonly used equipment, can they? At least, they cannot violate a “reasonable expectation of privacy,” right? But lawyers who filed a lawsuit described on The Smoking Gun say otherwise.

This case is an example of the application of California’s Anti-Paparazzi Act. In a previous post about the Act, I observed:

The Anti-Paparazzi Act creates heightened penalties when a person commits a trespass “in order to physically invade the privacy of the plaintiff with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity and the physical invasion occurs in a manner that is offensive to a reasonable person.” A person can also be liable even if there is no trespass if he “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 personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device.”

Violations of the Act carry damages up to “three times the amount of any general and special damages that are proximately caused by the violation of this section.” Punitive damages and disgorgement of any of the paparazzi’s proceeds from the sale of the photos are also available remedies. Further, the Act punishes a person who “directs, solicits, actually induces, or actually causes” a person to violate the law. §1708.8(d). The Act applies even if no image or recording is ever captured or sold. §1708.8(i).

Does Aniston have a reasonable expectation of privacy? I believe she might very well have a good case. She was at her home, and it appears as though Brandt had to be very far away in order to take the photos. Some might glibly say that if people want privacy at home, they should just shut their windows and never wander into their yards. But with today’s powerful zoom lenses, should we really have to live with our blinds constantly pulled down? Unless we protect people from the use of this kind of technology, it will interfere with their freedom upon their own property.

I believe that it is formalistic to conclude that people lack an expectation of privacy whenever it is possible for a person to be seen or heard. We can even expect privacy in public at times. When we’re in a restaurant, we might expect small snippets of our conversations to be overheard by people at tables immediately surrounding us. But this doesn’t mean, however, that we expect to have our conversation recorded from afar with a parabolic microphone. If we buy medication at a drug store, we expect that the person at the check out counter will see it, but we don’t expect the information about what we buy to be publicized to the world. For additional arguments, Helen Nissenbaum has written extensively on why people can expect privacy in public.

Brandt will probably counter with a First Amendment defense, but as I’ve explained in an earlier post, I don’t believe that the Anti-Paparazzi Act presents a First Amendment problem.

I discuss the issue of free speech vs. privacy in much greater detail in my article, The Virtues of Knowing Less: Justifying Privacy Protections Against Dislcosure, 53 Dule L.J. 957 (2003).

Related Posts:

1. Solove, Sex + Open Window = Photos + Internet

2. Solove, California’s Tougher Anti-Paparazzi Law and the First Amendment

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11 Responses

  1. Bruce says:

    The question for Jack Chin is whether he thinks “upskirt” photos should also be illegal. They are also usually taken “from a lawful vantagepoint with commercially available and commonly used equipment.” I see no difference in kind with the anti-paparazzi law. Modern technology is forcing a reassessment, I think, of the idea that one has no privacy rights in or near public spaces.

  2. Nude Photos of Jennifer Aniston

    CrimProf Blog’s Jack Chin reports,

    Nude Photos of Jennifer Aniston can’t possibly be “illegal” if taken from a lawful vantagepoint with commercially available and commonly used equipment, can they? At least, they cannot viol…

  3. Ralph Cramer says:

    Gee, ya don’t think this is a publicity stunt by Jen do ya? I think ya’ll have been spending too much time indoors reading case law.

    Cheers!

  4. Bruce says:

    You’re right Ralph; Jennifer Aniston obviously concluded she wasn’t receiving enough publicity, and decided to provide the world with free nude pictures of herself.

  5. Stuart says:

    I don’t think we’re able to evaluate the arguments being made about this episode unless Dan links to the photos themselves, so that we can form our own judgments.

  6. Jennifer Aniston’s Cease and Desist Letter

    Eric Goldman has a very interesting post about the cease and desist (C&D) letter that Jennifer Aniston’s attorneys sent to the paparazzi who took her photograph. The letter is posted on The Smoking Gun website. The letter states several times…

  7. Law Student '06 says:

    I have a feeling this post might cause there to be some disappointed fans of Jennifer Aniston who do some searches on Google…

  8. Law Student ’06 — Yes, there will probably be many a disappointed reader searching on Google for “Jennifer Aniston Nude Photos” and visiting this post. But:

    1. At least there is a photo of Aniston.

    2. The post title didn’t say: “Jennifer Aniston Nude Photos Here!!!” — which would have generated many more hits.

    3. Once a web searcher hits our blog, we’ve snagged the Sitemeter stat. And they can’t take that away from us.

    4. I’m sure that folks searching for “Jennifer Aniston Nude Photos” are all looking for a cogent legal analysis of the case. What else could they possibly be looking for?

  9. Candace Grissom says:

    Personally, if this turns out to not be a publicity stunt of some kind, I think that this case would be an excellent test of the Anti-Paparazzi Act. Unfortunately, America has come to accept the fact that just because people are celebrities that their private life is also open to public view. However, this assumption denies celebrities the same right to privacy as other American enjoy. Clearly,Aniston had a reasonable expectation of privacy since she was in her own home. In addition to the new Anti-Paparazzi Act, Peter Brandt, by taking nude photos of Aniston,and then trying to sell them to the tabloid media for monetary gain without Aniston’s permission, has also violated two more commonly accepted laws:Appropriation and Intrusion into Seclusion. If this case does in fact go to trial and Aniston loses, it will mean not only that celebrities have not been protected by the Anti-Paparazzi Law as the California legislature intended, but also that in today’s gossip-hungry society, a person gives up their Constitutional right to privacy by becoming a celebrity.

  10. tyler says:

    plz show me jennifer aniston naked please

  11. Nelda Campos says:

    That is very rude to take nude photos of someone while they are in the privacy of their own home. The paparazzi should be ashamed of themselves. They are nothing but people who invade people’s privacy to take a stupid picture so they can get some money for it. The paparazzi people are PATHETIC people and are scumbags and are worthless pieces of garbage. How would they like it if I tried to snap a nude picture of them for cash. Not that their really worth anything anyway. Well that is all I have to say.