AB 2643, as amended, 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 intentionallybegin delete or recklesslyend delete distributes a photograph or recorded image of another that exposes the intimate body parts, as defined, of that person or him or her engaged in specified sexual acts, without his or her consent,begin insert
and knew that the other person had a reasonable expectation that the material would remain private,end insert if specified conditions are met. 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 a plaintiff to proceed using a pseudonym instead of his or her true name. The bill would require a plaintiff using a pseudonym in a civil proceeding under these provisions to file a confidential information form, as specified. The bill would make these provisions operative July 1, 2015.
This bill would further require the Judicial Council to develop that confidential information form by July 1, 2015.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
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 by any means a photograph,
4film, videotape, recording, or any other reproduction of another,
5without his or her consent, if the distributed material exposes an
6intimate body part of the other person, or shows the other person
7engaging in an act of intercourse, oral copulation, sodomy, or other
8act of sexual penetration.
9(b) As used in this section, “intimate body part”
means any
10portion of the genitals, and, in the case of a female, also includes
11any portion of the breast below the top of the areola, that is
12uncovered or visible through less than fully opaque clothing.
13(c) There shall be no liability on the part of the person
14distributing material under subdivision (a) under any of the
15following circumstances:
16(1) The distributed material was created under an agreement by
17the person appearing in the material for its public use and
18distribution or otherwise intended by that person for public use
19and distribution.
20(2) The person possessing or viewing the distributed material
21has permission from the person appearing in the material to publish
22or post the material.
23(3) The person appearing in the material waived any expectation
24of privacy in the distributed material by making it accessible to
25the general public.
26(4) The distributed material constitutes a matter of public
27concern.
P3 1(5) The distributed material was photographed, filmed,
2videotaped, recorded, or otherwise reproduced in a public place
3and under circumstances in which the person depicted had no
4reasonable expectation of privacy.
5(d) In addition to any other relief, the court may order equitable
6relief against the person violating subdivision (a), including a
7temporary restraining
order, or a preliminary injunction or a
8permanent injunction ordering the defendant to remove the
9distributed material. The court may grant injunctive relief
10substituting a pseudonym for the true name of the plaintiff pursuant
11to subdivision (d). The court may also grant, after holding a
12properly noticed hearing, reasonable attorney’s fees and costs to
13the prevailing party.
14(e) (1) A plaintiff in a civil proceeding pursuant to subdivision
15(a), may proceed using a pseudonym, either John Doe, Jane Doe,
16or Doe, for the true name of the plaintiff and may exclude or redact
17from all pleadings and documents filed in the action other
18identifying
characteristics of the plaintiff. A plaintiff who proceeds
19using a pseudonym and excluding or redacting identifying
20characteristics as provided in this section shall file a confidential
21information form for this purpose that includes the plaintiff’s name
22and other identifying characteristics excluded or redacted. The
23court shall keep the plaintiff’s name and excluded or redacted
24characteristics confidential. Nothing in this section restricts the
25defendant’s right to discovery from the plaintiff of information
26contained in the confidential information form.
27(2) All court decisions, orders, petitions, and other documents,
28including motions and papers filed by the parties, shall be worded
29so as to protect the name or other identifying characteristics of the
30plaintiff from
public revelation.
31(3) Unless the plaintiff requests otherwise
and the court so
32orders,
the parties, their counsel and other agents, and all other
33persons subject to the jurisdiction of the court shall make no public
34revelation of the name or any other identifying characteristics of
35the plaintiff.
36(4) As used in this subdivision, “identifying characteristics”
37includes, but is not limited to, name or any part thereof, address
38or any part thereof, city or unincorporated area of residence, age,
39marital status, relationship to defendant, and race or ethnic
40background.
P4 1(5) The responsibility for excluding or redacting the name or
2identifying characteristics of the plaintiff from all documents filed
3with the court rests solely with the parties and their attorneys.
4Nothing in this section requires the court to review pleadings or
5other papers for
compliance with this provision.
6(f) In an action pursuant to this section, the plaintiff shall state
7in the caption of the complaint “ACTION BASED ON CIVIL
8CODE SECTION 48.95.”
9(g) Nothing in this section shall be construed to alter or negate
10
any rights, obligations, or immunities of an interactive service
11provider under Section 230 of Title 47 of the United States Code.
12Nothing in this section shall be construed to limit or preclude a
13plaintiff from securing or recovering any other available remedy.
14(h) The provisions of this section are severable. If any provision
15of this section or its application is held invalid, that invalidity shall
16not affect other provisions or applications that can be given effect
17without the invalid provision or application.
18(i) This section shall become operative on July 1, 2015.
begin insertSection 1708.9 is added to the end insertbegin insertCivil Codeend insertbegin insert, to read:end insert
begin insert(a) A private cause of action lies against a person
21who intentionally distributes by any means a photograph, film,
22videotape, recording, or any other reproduction of another, without
23the other’s consent, if (1) the person knew that the other person
24had a reasonable expectation that the material would remain
25private, (2) the distributed material exposes an intimate body part
26of the other person, or shows the other person engaging in an act
27of intercourse, oral copulation, sodomy, or other act of sexual
28penetration, and (3) the other person suffers general or special
29damages as described in Section 48a.
30(b) As used in this section, “intimate body part” means any
31portion of the genitals, and, in the case of a
female, also includes
32any portion of the breast below the top of the areola, that is
33uncovered or visible through less than fully opaque clothing.
34(c) There shall be no liability on the part of the person
35distributing material under subdivision (a) under any of the
36following circumstances:
37(1) The distributed material was created under an agreement
38by the person appearing in the material for its public use and
39distribution or otherwise intended by that person for public use
40and distribution.
P5 1(2) The person possessing or viewing the distributed material
2has permission from the person appearing in the material to
3publish by any means or post the material on an Internet Web site.
4(3) The person appearing in the material waived any reasonable
5expectation of privacy in the distributed material by making it
6accessible to the general public.
7(4) The distributed material constitutes a matter of public
8concern.
9(5) The distributed material was photographed, filmed,
10videotaped, recorded, or otherwise reproduced in a public place
11and under circumstances in which the person depicted had no
12reasonable expectation of privacy.
13(6) The distributed material was previously distributed by
14another person.
15(d) In addition to any other relief available at law, the court
16may order equitable relief
against the person violating subdivision
17(a), including a temporary restraining order, or a preliminary
18injunction or a permanent injunction ordering the defendant to
19cease distribution of material. The court may grant injunctive relief
20substituting a pseudonym for the true name of the plaintiff pursuant
21to subdivision (e).
22(e) The court may also grant, after holding a properly noticed
23hearing, reasonable attorney’s fees and costs to the prevailing
24party.
25(f) (1) A plaintiff in a civil proceeding pursuant to subdivision
26(a), may proceed using a pseudonym, either John Doe, Jane Doe,
27or Doe, for the true name of the plaintiff and may exclude or redact
28from all pleadings and documents filed in the action other
29identifying characteristics of the plaintiff. A plaintiff who proceeds
30using a pseudonym and excluding or redacting
identifying
31characteristics as provided in this section shall file with the court
32and serve upon the defendant a confidential information form for
33this purpose that includes the plaintiff’s name and other identifying
34characteristics excluded or redacted. The court shall keep the
35plaintiff’s name and excluded or redacted characteristics
36confidential.
37(2) All court decisions, orders, petitions, and other documents,
38including motions and papers filed by the parties, shall be worded
39so as to protect the name or other identifying characteristics of
40the plaintiff from public revelation.
P6 1(3) Counsel for all parties shall comport their conduct with
2Rule 5-120 of the California State Bar Rule of Professional
3Conduct and counsel and all parties shall comply with any lawful
4order of the court.
5(4) As used in this subdivision, “identifying characteristics”
6includes, but is not limited to, name or any part thereof, address
7or any part thereof, city or unincorporated area of residence, age,
8marital status, relationship to defendant, and race or ethnic
9background.
10(5) The responsibility for excluding or redacting the name or
11identifying characteristics of the plaintiff from all documents filed
12with the court rests solely with the parties and their attorneys.
13Nothing in this section requires the court to review pleadings or
14other papers for compliance with this provision.
15(g) In an action pursuant to this section, the plaintiff shall state
16in the caption of the complaint “ACTION BASED ON CIVIL CODE
17SECTION 1708.9.”
18(h) Nothing in this section shall be construed to alter or negate
19any rights, obligations, or immunities of an interactive service
20provider under Section 230 of Title 47 of the United States Code.
21Nothing in this section shall be construed to limit or preclude a
22plaintiff from securing or recovering any other available remedy.
23(i) The provisions of this section are severable. If any provision
24of this section or its application is held invalid, that invalidity shall
25not affect other provisions or applications that can be given effect
26without the invalid provision or application.
27(j) This section shall become operative on July 1, 2015.
The Judicial Council shall, by July 1, 2015, develop
29the confidential information form specified in subdivisionbegin delete (e)end deletebegin insert (f)end insert
30 of Sectionbegin delete 48.95end deletebegin insert 1708.9end insert of the Civil Code.
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