By ERIN MILLER
The Maui senator behind the proposed “Steven Tyler Act” says people are misreading Senate Bill 465.
The measure prohibits people from taking pictures from anywhere, including public places, of someone within their own homes or other areas where they have a reasonable expectation of privacy and selling the images, Sen. J. Kalani English said Friday. The bill isn’t trying to stop people from taking pictures of celebrities in public and selling those shots, English said.
Hilo attorney Joy San Buenaventura said she didn’t see English’s intended interpretation in the bill’s language.
“I believe there’s already laws that prevent that,” San Buenaventura said, referring to English’s desire to protect celebrities and other public figures within their own homes and other private places. “There’s no need for it.”
The measure makes a person liable for civil damages for “constructive invasion of privacy if the person captures or intends to capture, in a manner that is offensive to a reasonable person, through any means a visual image, sound recording, or other physical impression of another person while that person is engaging in a personal or familial activity with a reasonable expectation of privacy.”
Further, the bill says someone accused of violating the proposed law would not be able to defend themselves by saying the images were never sold.
San Buenaventura represented Hawaii Island photographer Tim Wright several years ago, when Four Seasons Resort Hualalai officials challenged him for taking pictures of a celebrity from the public beach on the resort property. She said someone could even end up afoul of the law if he took a personal video, uploaded it to YouTube and the video went viral.
“It makes anyone liable to the celebrity, who became a celebrity because people wanted to see him,” she added. “That’s the reason he makes money. It’s so broad.”
Public figures lose some of their expectations of privacy, she said.
“If they need to be private, they don’t need to broadcast where they are,” San Buenaventura said.
Kona attorney Frank Jung said the bill, if it became law, would be a “great time for lawyers” because it opened up so many options for litigation.
“This is very vague,” Jung said. “I think this is a well-intentioned bill. It’s not specific enough.”
“It’s precise enough to define what is a private space,” English said, adding the Hawaii’s State Constitution also spells out a right to privacy, something few, if any, other states do.
The law itself may be new to Hawaii, but English said California and New York have similar laws on the books.
“The First Amendment questions have been pretty well vetted,” English said.
The measure would not prohibit people from taking pictures of public figures in public spaces, including the beach, English said. However, in contradiction, the bill specifically notes that pictures cannot be taken from state marine waters, generally considered to be a public space, because English said some paparazzi photographers are using high-end telephoto lenses to shoot pictures into celebrities’ homes.
Tyler, known for being Aerosmith’s lead singer and, more recently, his stint as an American Idol judge, owns a house on Maui, making him one of English’s constituents.
San Buenaventura questioned even naming the measure after Tyler. Hawaii is home to other celebrities, she said, who have never complained about photographers invading their privacy.
English said Tyler isn’t Maui’s only high-profile resident. New Zealand Prime Minister John Key owns a home there, as do the members of some royal families, he said.
Hawaii has tax credits for film and television production here, giving millions in credits annually so those shows can serve as an advertisement for Hawaii, English said. When those celebrities talk about the state, people outside of the state hear those comments, he said, and negative comments portray the state in a bad light.
Wright, a Hilo-based freelance photographer whose work has appeared in the Tribune-Herald, nationally and internationally, said he hadn’t heard of the bill until Friday morning. He said after the incident at the Four Seasons a decade ago, when security guards told him to stop taking pictures of Sylvester Stallone’s wife and Wright left, he and San Buenaventura went into arbitration with resort officials.
Testimony, including from Department of Land and Natural Resources officials, explained to the resort that Wright was photographing from public property — on the beach below the high tide mark — and the resort couldn’t restrict him there.
He hasn’t had any problems since, Wright said.
Email Erin Miller at email@example.com.