SB465 SD1.DOC

SECTION 1. Chapter 663, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§663- Physical or constructive invasion of privacy; civil cause of action. (a) A person is liable for physical invasion of privacy when the defendant knowingly enters onto land owned or leased by the plaintiff without permission 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.

(b) A person is liable for constructive invasion of privacy when the defendant 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 on land owned or leased by the plaintiff and under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing 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 visual or auditory enhancing 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 shall be subject to subsections (d), (e), and (i).

(d) A person who commits any act under subsection (a), (b), or (c) shall be liable for up to three times the amount of any general and special damages that are proximately caused by the violation of this section and may be liable for punitive damages. If the plaintiff proves that the invasion of privacy was committed for a commercial purpose, the defendant 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.

(e) A person who directs, solicits, actually induces, or actually causes another person, regardless of whether there is an employer-employee relationship, to violate subsection (a), (b), or (c) shall be liable for any general, special, and consequential damages resulting from each violation. Any person who 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.

(f) The following circumstances shall not be a violation of this section:

(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 subsection (a), (b), or (c), 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 subsection (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; provided that "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 subsection (a), (b), or (c). The plaintiff shall establish actual knowledge by clear and convincing evidence;

(2) Any person who 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; and

(3) Any 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 if that 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 did not violate subsection (a), (b), or (c).

(g) This section shall apply only to a visual image, sound recording, or other physical impression that is captured or taken in this State in violation of subsection (a), (b), or (c) after the effective date of this Act and shall not apply to any visual image, sound recording, or other physical impression taken or captured outside this State. Nothing in this section shall be construed to:

(1) Impair or limit a special motion filed pursuant to chapter 634F;

(2) Limit all other rights or remedies of the plaintiff in law or equity, including but not limited to the publication of private facts; and

(3) 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, 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) Notwithstanding any law to the contrary, include rules of court, upon the filing of any motion to dispose of a claim in a judicial proceeding on the grounds that the claim is barred by a defense based on the First Amendment of the United State Constitution or article I of the Hawaii State Constitution:

(1) The motion shall be treated as a motion for judgment on the pleadings, matters outside the pleadings shall be excluded by the court, and the court shall expedite the hearing of the motion;

(2) The moving party shall have a right:

(A) To an immediate appeal from a court order denying the motion; and

(B) To file an application for a writ of mandamus if the court fails to rule on the motion in an expedited fashion;

(3) Discovery shall be suspended, pending decision on the motion and appeals;

(4) The responding party shall:

(A) Without leave of court, have seven days to amend its pleadings to be pled with specificity, and shall include such supporting particulars as are peculiarly within the supporting pleader's knowledge; and

(B) Have the burden of proof and persuasion on the motion;

(5) The court shall make its determination based upon the allegations contained in the pleadings;

(6) The court shall grant the motion and dismiss the judicial claim, unless the responding party has demonstrated that more likely than not, the respondent's claim is barred by a defense based on the First Amendment of the United States Constitution or article I of the Hawaii State Constitution;

(7) The court shall award a moving defendant who prevails on the motion, without regard to any limits under state law:

(A) Actual damages or $5,000, whichever is greater;

(B) Costs of suit, including reasonable attorney's and expert witness fees, incurred in connection with the motion; and

(C) Any additional sanctions upon the plaintiff, its attorney's fees, or law firms as the court determines shall be sufficient to deter repetition of the conduct and comparable conduct by others similarly situated; and

(8) Any person damaged or injured by reason of a claim filed in violation of their rights under this section may seek relief in the form of a claim for actual or compensatory damages as well as punitive damages, attorney's fees, and costs from the person responsible.

(i) 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 subsection (a), (b), or (c).

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

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

(l) For 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.

"Personal and familial activity" includes intimate details of the plaintiff's personal life, interactions with the plaintiff's family or significant others, or other aspects of the plaintiff's private affairs or concerns. "Personal and familial activity" does not include illegal or otherwise criminal activity as set forth under subsection (g)(3), but includes the activities of victims of crime in circumstances under which subsection (a), (b), or (c) applies.

(m) The rights and remedies provided in 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."

SECTION 2. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 3. The revisor of statutes shall insert the appropriate effective date of this Act in section 1 of this Act.

SECTION 4. New statutory material is underscored.

SECTION 5. This Act shall take effect on July 1, 2050.

THE SENATE	S.B. NO.	465
TWENTY-SEVENTH LEGISLATURE, 2013		S.D. 1
STATE OF HAWAII