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Arkansas lawmakers take ‘civil’ approach with new ag-gag law

Gov. Asa Hutchinson Thursday signed Arkansas House Bill 1665, adding a civil cause of action to the state’s code that permits individuals to sue over the unauthorized access to non-public areas of commercial property.

Although not a criminal statute, Nathan Runkle, president of Mercy for Animals, calls the measure an “ag-gag” law.

Gov. Asa Hutchinson

Gov. Asa Hutchinson

“By signing this bill into law,” Runkle said,  “he (Hutchinson)  has sided with those who seek to keep Arkansas’s corrupt factory farming practices hidden from public view and created a safe haven for animal abuse and other criminal activity in the state.”

HB 1665 easily earned approval from the Arkansas Legislature where the state’s large poultry industry is always a major concern. Other states with large agricultural animal operations have already approved ag-gag laws.

In Idaho, a federal judge has already found that state’s criminal “ag-gag” statute to be unconstitutional. Idaho is appealing that ruling. Two other states’ ag-gag measures also are being challenged in other federal district courts. Since 2010, “ag-gag” bills have been introduced by state lawmakers largely in response to undercover investigations by animal welfare activists.

Arkansas has taken a different approach with its new cause of civil action. It applies to the “unauthorized use” of commercial property, meaning businesses, agricultural or timber production operations including buildings and outdoor areas not open to public and even residential properties used for business purposes.

Anyone who knowingly gains access to a nonpublic area of such property and engages in an act that “exceeds the person’s authority to enter the nonpublic area is liable to the owner or operator for damages sustained by the owner or operator.”

An act that exceeds a person’s authority to enter a non-public area of a commercial property is for one that does not involve business or employment reasons, and without authorization subsequently results in:

  • The employer’s data, papers, records or other documents are removed for uses that damage the employer;
  • Images or sound being recorded in the non-public area for use in a manner that damages the employer; and
  • Unattended cameras or electronic surveillance equipment being placed for unattended use in the non-public areas.

Persons who direct or assist others are jointly liable and can also be sued. A court may grant equitable relief, compensatory damages and all costs. Where compensatory damages cannot to quantified, a court may award $5,000 per day for each portion of a day the defendants were in violation.

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