Amended in Senate June 24, 2014

Amended in Senate June 9, 2014

Amended in Assembly April 24, 2014

Amended in Assembly April 9, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2643

Introduced by Assembly Member Wieckowski

February 21, 2014

An act to add Section 1708.9 to the Civil Code, relating to privacy.

LEGISLATIVE COUNSEL’S DIGEST

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 intentionally 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 delete and knew end delete begin insert knowing end insert that the other person had a reasonable expectation that the material would remain private, 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 1.  

Section 1708.9 is added to the Civil Code, to
read:

1708.9.  

(a) A private cause of action lies against a person who
intentionally distributes by any means a photograph, film,
videotape, recording, or any other reproduction of another, without
the other’s consent, if (1) the person knew that the other person
had a reasonable expectation that the material would remain
private, (2) the distributed material exposes an intimate body part
of the other person, or shows the other person engaging in an act
of intercourse, oral copulation, sodomy, or other act of sexual
penetration, and (3) the other person suffers general or special
damages as described in Section 48a.

(b) As used in this section, “intimate body part” means any
portion of the genitals, and, in the case of a female, also includes
any portion of the breast below the top of the areola, that is
uncovered or visible through less than fully opaque clothing.

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

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

(2) The person possessing or viewing the distributed material
has permission from the person appearing in the material to publish
by any means or post the material on an Internet Web site.

(3) The person appearing in the material waived any reasonable
expectation of privacy in the distributed material by making it
accessible to the general public.

(4) The distributed material constitutes a matter of public
concern.

(5) The distributed material was photographed, filmed,
videotaped, recorded, or otherwise reproduced in a public place
and under circumstances in which the person depicted had no
reasonable expectation of privacy.

(6) The distributed material was previously distributed by
another person.

(d) In addition to any other relief available at law, the court may
order equitable relief against the person violating subdivision (a),
including a temporary restraining order, or a preliminary injunction
or a permanent injunction ordering the defendant to cease
distribution of material. begin delete The court may grant injunctive relief
substituting a pseudonym for the true name of the plaintiff pursuant
to subdivision (e). end delete begin insert The court may grant injunctive relief
maintaining the confidentiality of a plantiff using a pseudonym as
provided in subdivision (f). end insert

(e) The court may also grant, after holding a properly noticed
hearing, reasonable attorney’s fees and costs to the prevailing begin delete party end delete
begin insert plaintiff end insert .

(f) (1) A plaintiff in a civil proceeding pursuant to subdivision
(a), may proceed using a pseudonym, either John Doe, Jane Doe,
or Doe, for the true name of the plaintiff and may exclude or redact
from all pleadings and documents filed in the action other
identifying characteristics of the plaintiff. A plaintiff who proceeds
using a pseudonym and excluding or redacting identifying
characteristics as provided in this section shall file with the court
and serve upon the defendant a confidential information form for
this purpose that includes the plaintiff’s name and other identifying
characteristics excluded or redacted. The court shall keep the
plaintiff’s name and excluded or redacted characteristics
confidential.

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

begin delete

(3) Counsel for all parties shall comport their conduct with Rule
5-120 of the California State Bar Rule of Professional Conduct
and counsel and all parties shall comply with any lawful order of
the court.

end delete begin delete

(4)

end delete

begin insert (3) end insert  As used in this subdivision, “identifying characteristics”
includes, but is not limited to, name or any part thereof, address
or any part thereof, city or unincorporated area of residence, age,
marital status, relationship to defendant, and race or ethnic
background.

begin delete

(5)

end delete

begin insert (4) end insert  The responsibility for excluding or redacting the name or
identifying characteristics of the plaintiff from all documents filed
with the court rests solely with the parties and their attorneys.
Nothing in this section requires the court to review pleadings or
other papers for compliance with this provision.

(g) In an action pursuant to this section, the plaintiff shall state
in the caption of the complaint “ACTION BASED ON CIVIL
CODE SECTION 1708.9.”

(h) Nothing in this section shall be construed to alter or negate
any rights, obligations, or immunities of an interactive service
provider under Section 230 of Title 47 of the United States Code.
Nothing in this section shall be construed to limit or preclude a
plaintiff from securing or recovering any other available remedy.

(i) The provisions of 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.

(j) This section shall become operative on July 1, 2015.

SEC. 2.  

The Judicial Council shall, by July 1, 2015, develop
the confidential information form specified in subdivision (f) of
Section 1708.9 of the Civil Code.