California Legislature—2013–14 Regular Session

Assembly BillNo. 2643

Introduced by Assembly Member Wieckowski

February 21, 2014

An act to add Section 48.95 to the Civil Code, relating to privacy.


AB 2643, as introduced, Wieckowski. Invasion of privacy: distribution of sexually explicit materials.

Existing law makes it a crime for a person to distribute, with the intent to cause serious emotional distress, a photograph or recorded image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, if the depicted person subsequently suffers serious emotional distress.

This bill would create a private right of action against a person who intentionally or recklessly distributes a photograph or recorded image of another that exposes the intimate body parts of that person or him or her engaged in a sexual act, without his or her consent, if specified conditions are met, including that the person depicted suffer emotional distress. The bill would establish affirmative defenses to that cause of action, including waiver or consent of the person appearing in the material. In a civil proceeding pursuant to these provisions, the bill would also authorize equitable relief, as specified, and substituting a pseudonym for the true name of the plaintiff.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1


Section 48.95 is added to the Civil Code, to read:



(a) A private cause of action lies against a person who
3intentionally or recklessly distributes a photograph, film, videotape,
4recording, or any other reproduction of another, without his or her
5consent, if all of the following are met:

6(1) The distributed material exposes an intimate body part of
7the other person, or shows the other person engaging in an act of
8sexual penetration or other sexual act.

9(2) The distribution of the material causes emotional distress to
10the other person.

11(b) There shall be no liability on the part of the person
12distributing material under subdivision (a) under any of the
13following circumstances:

14(1) The distributed material was created under an agreement by
15the person appearing in the material for its public use and
16distribution or otherwise intended by that person for public use
17and distribution.

18(2) The person possessing or viewing the distributed material
19has permission from the person appearing in the material to possess
20or view the material.

21(3) The person appearing in the material waived any expectation
22of privacy in the distributed material by distributing it to a
23substantial number of persons.

24(4) The distributed material constitutes a matter of public

26(c) In addition to any other relief, the court may order equitable
27relief against the person violating subdivision (a), including a
28temporary restraining order, or a preliminary injunction or a
29permanent injunction ordering the defendant to remove the
30distributed material. The court may grant injunctive relief
31substituting a pseudonym for the true name of the plaintiff pursuant
32to subdivision (d). The court may also grant, after holding a
33properly noticed hearing, reasonable attorneys fees and costs to
34the prevailing party.

35(d) (1) In a civil proceeding pursuant to subdivision (a), the
36court shall substitute a pseudonym for the true name of the plaintiff.
37The actual name and other identifying characteristics of the plaintiff
38shall be revealed to the court only in camera, and the court shall
P3    1seal that information from further revelation, except to defense
2counsel as part of discovery.

3(2) All court decisions, orders, petitions, and other documents,
4including motions and papers filed by the parties, shall be worded
5so as to protect the name or other identifying characteristics of the
6plaintiff from public revelation.

7(3) Unless the plaintiff requests otherwise, the court shall, at
8the first opportunity, issue an order that the parties, their counsel
9and other agents, court staff, and all other persons subject to the
10jurisdiction of the court shall make no public revelation of the
11name or any other identifying characteristics of the plaintiff.

12(4) As used in this subdivision, “identifying characteristics”
13includes, but is not limited to, name or any part thereof, address
14or any part thereof, city or unincorporated area of residence, age,
15marital status, relationship to defendant, and race or ethnic