Pilot or Paparazzi? Drone Photography Can Violate Anyone’s Privacy, Not Just Celebrities’

Most people know that they have some right to privacy, and that others’ invasion of that privacy is a legally recognized offense. California, a leader in the privacy law landscape, has an “anti-paparazzi” law in Civil Code section 1708.8 to address sneaky privacy violators who use technology, such as drones, to gain access to private property. But people are unlikely to realize that section 1708.8 law protects everyone, not just celebrities.

Section 1708.8 creates a civil cause of action against one who knowingly enters a plaintiff’s property or airspace without permission intending to capture any kind of image or recording of private activities. While it may sound like a violation occurs only if the intruder captures intimate moments, “private activities” includes most conduct on a residential property. Any activity indoors, within a fenced yard, or recessed from the boundaries of a property is likely to offer a reasonable expectation of privacy.

The sting of section 1708.8 is in the remedies. If you successfully sue a harasser, you may be able to obtain:

• treble damages;
• punitive damages;
• disgorgement of the defendant’s profits if the images were sold; and/or
• the ability to pursue any other person who solicited the defendant to invade your privacy.

This powerful claim recognizes that technological advancements—like drone-mounted photography—have made it easier to harass without a physical entry onto your property. Despite being called an anti-paparazzi law, section 1708.8 provides relief to many “everyday” plaintiffs.

Drone pilots should consider section 1708.8. Although punitive damages are only available upon a showing of malice, a violation only requires the intent to capture images of another’s private activities that you would not normally be permitted to see. You need not intend to harm or harass. Be aware that curiosity could subject the cat to an expensive legal battle.

For Questions Please Contact:

Missy G. Brenner is an associate in our Intellectual Property, Privacy and Data Security, and Litigation Groups. She assists in intellectual property litigation—from patents to trade secrets—and trademark prosecution in addition to general intellectual property and privacy and data security matters. She is also knowledgeable in the areas of software copyright counsel and registration. For questions, call Missy at 408.247.2583 or email missy.brenner@hogefenton.com.

Stephanie O. Sparks chairs the firm’s Privacy & Data Security and Intellectual Property teams at Hoge Fenton. She counsels companies on privacy laws, including the GDPR, and helps them create and implement administrative, technical, and physical safeguards for data security. For questions, call Stephanie at 408.947.2431 or email stephanie.sparks@hogefenton.com.