BILL ANALYSIS Ó
AB 2643
Page 1
Date of Hearing: April 22, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 2643 (Wieckowski) - As Amended: April 9, 2014
As Proposed to be Amended
SUBJECT : Privacy: Distribution of Sexually Explicit Materials
KEY ISSUE : Should a person who has had sexually explicit images
of himself or herself distributed, without his or her consent,
have a private cause of action against the person who
intentionally OR recklessly distributed those images?
SYNOPSIS
Existing law creates criminal or civil liability, or both, for
various kinds of conduct that intrude upon a person's reasonable
expectation of privacy, especially where those intrusions
involve inherently intimate matters. For example, existing
"peeping Tom" statutes make it a crime to spy upon someone in an
interior private space (e.g. bedroom, bathroom, etc.), whether
the spying is done with the naked eye or with a camera or
recording device. In addition, the civil "invasion of privacy"
statute creates civil liability where a person attempts to
capture the visual image or sound recording of a person engaged
in a "personal or familial activity," as defined, and in a
manner that would be offensive to a reasonable person. Finally,
various common law torts protect against other invasions of
privacy. Last year, AB 255 (Chapter 466, Stats. of 2013) made
it a crime for a person to photograph (or otherwise record) a
person's "intimate body parts" and then distribute the image or
recording with the intent to cause the depicted person serious
emotional distress (and where the two parties had an
understanding that the image or recording would remain private).
AB 255 was enacted in response to the allegedly growing problem
of "revenge porn," which, in the typical scenario, involves one
person maliciously posting sexually explicit images of another
person (usually a former intimate partner) without that person's
consent. This bill supplements AB 255 by creating a civil cause
of action, including injunctive relief ordering the offending
material to be removed and not republished. In addition, so as
not to expose the victim to even more humiliation, this bill
would permit a victim to file an action using a pseudonym and to
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redact other identifying characteristics from the pleadings or
other documents filed as part of the action. Although the
author's primary objective is to allow victims to obtain an
injunction ordering removal the offending image, the bill
expressly states that nothing in the bill is intended to
preclude any other remedies available at law, including pursuit
of damages under various theories of tort law.
SUMMARY : Creates a private right of action against a person who
intentionally or recklessly distributes a sexually explicit
photograph or other image or recording of another person,
without the consent of that person, as specified. Specifically,
this bill :
1)Provides that a private cause of action lies against a person
who intentionally or recklessly distributes by any means a
photograph, film, videotape, recording, or any other
reproduction of another without his or her consent, if the
distributed material exposes an intimate body part of the
other person, or shows the other person engaging in an act of
sexual intercourse, oral copulation, sodomy, or other act of
sexual penetration. Defines "intimate body part" to mean 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.
2)Provides that a person distributing material of the sort and
in the manner described above shall not be liable under any of
the following circumstances:
a) 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 or distribution.
b) The person possessing or viewing the distributed
material has permission from the person appearing in the
material to publish or post the material.
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c) The person appearing in the material waived any
expectation of privacy in the distributed material by
making it accessible to the general public.
d) The distributed material constitutes a matter of public
concern.
e) 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.
3)Permits the court, in addition to any other relief, to order
equitable relief against the person violating the provisions
of this bill, including a temporary restraining order or a
preliminary or permanent injunction ordering the defendant to
remove the distributed material. Permits the court to grant
injunctive relief substituting a pseudonym for the true name
of the plaintiff, and permits the court, after holding a
properly noticed hearing, to grant reasonable attorney's fees
and costs to the prevailing party.
4)Permits a plaintiff to proceed using a pseudonym for his or
her true name and to exclude or redact from all pleadings and
documents other identifying characteristics of the plaintiff.
A plaintiff who proceeds using a pseudonym and excluding or
redacting identifying characteristics shall file a
confidential information form for this purpose that includes
the plaintiff's name and other identifying characteristics
that have been excluded or redacted. The court shall keep the
plaintiff's name and excluded or redacted characteristics
confidential. Specifies that the identifying characteristics
in the information form must be kept confidential, except to
defense counsel as part of discovery.
5)Defines "identifying characteristics" to include, but 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.
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EXISTING LAW :
1)Makes it a misdemeanor for a person to photograph or record by
any means the 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, and the person subsequently distributes the image
taken, with the intent to cause serious emotional distress,
and the depicted person suffers serious emotional distress.
Defines "intimate body part or parts" to mean any portion of
the genitals, and in the case of a female, also includes any
portion of the breasts below the top of the areola, that is
either uncovered or visible through less than fully opaque
clothing. (Penal Code Section 647(j)(4).)
2)Makes it a misdemeanor for a person to look through a hole or
opening, into, or otherwise view, by means of any
instrumentality, including, but not limited to, a periscope,
telescope, binoculars, camera, motion picture camera,
camcorder, or mobile phone, the interior of a bedroom,
bathroom, changing room, fitting room, dressing room, or
tanning booth, or the interior of any other area in which the
occupant has a reasonable expectation of privacy, with the
intent to invade the privacy of a person or persons inside.
(Penal Code Section 647 (j)(1).)
3)Makes it a misdemeanor for a person to use a concealed
camcorder, motion picture camera, or photographic camera of
any type, to secretly videotape, film, photograph, or record
by electronic means, another, identifiable person under or
through the clothing being worn by that other person, for the
purpose of viewing the body of, or the undergarments worn by,
that other person, without the consent or knowledge of that
other person, with the intent to arouse, appeal to, or gratify
the lust, passions, or sexual desires of that person and
invade the privacy of that other person, under circumstances
in which the other person has a reasonable expectation of
privacy. (Penal Code Section 647 (j)(2).)
4)Makes it a misdemeanor for a person to use a concealed
camcorder, motion picture camera, or photographic camera of
any type, to secretly videotape, film, photograph, or record
by electronic means, another, identifiable person who may be
in a state of full or partial undress, for the purpose of
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viewing the body of, or the undergarments worn by, that other
person, without the consent or knowledge of that other person,
in the interior of a bedroom, bathroom, changing room, fitting
room, dressing room, or tanning booth, or the interior of any
other area in which that other person has a reasonable
expectation of privacy, with the intent to invade the privacy
of that other person. (Penal Code Section 647 (j)(3).)
5)Makes a person liable for physical invasion of privacy if that
person (defendant) knowingly enters onto the land of another
person (plaintiff) without permission or otherwise commits a
trespass in order to physically invade the privacy of the
plaintiff with the intent to capture any type of visual image,
sound recording, or other physical impression of the plaintiff
engaging in a personal or familial activity and the physical
invasion occurs in a manner that is offensive to a reasonable
person. (Civil Code Section 1708.8 (a).)
6)Makes a person liable for constructive invasion of privacy
when that person (defendant) attempts to capture, in a manner
that is offensive to a reasonable person, any type of visual
image, sound recording, or other physical impression of
another person (plaintiff) engaging in a personal or familial
activity under circumstances in which the plaintiff had a
reasonable expectation of privacy, through the use of a visual
or auditory enhancing device, regardless of whether there is a
physical trespass, if this image, sound recording, or other
physical impression could not have been achieved without a
trespass unless the visual or auditory enhancing device was
used. (Civil Code Section 1708.8 (b).)
7)Allows a party to file an action anonymously or to keep names
out of public records and court proceedings under certain
circumstances. [See e.g. Civil Code Section 3427.3 (health
care patients and staff); Health & Safety Code Section 120291
(victim of intentional HIV infection); Penal Code Sections 293
and 293.5 (victims of sexual offenses).]
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
COMMENTS : According to the author, as the Internet becomes a
more pervasive part of our lives, it has also become a source
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for novel forms of harassment and emotional cruelty when
intimate material that was intended to remain private is posted
online for all to see. This serious problem - referred to as
"revenge porn" in media and other accounts - can damage careers
and cause severe humiliation and emotional distress. The author
hopes that this bill will address "the growing problem of
non-consensual distribution of intimate imagery by creating a
strong, clear and focused civil remedy for victims."
Specifically, this bill would permit the person whose image is
intentionally or recklessly posted by another person to bring an
action against that other person for equitable relief, in
addition to any other relief to which the plaintiff might be
entitled. The provisions of this bill would apply only where
the distributed image depicted the victim's "intimate body part
or parts," as defined, or showed the victim engaged in sexual
intercourse, oral copulation, sodomy, or other act of sexual
penetration. The bill incorporates a number of important
defenses, specifying that there is no liability under the bill
if (1) the plaintiff agreed that the material was intended for
public use; (2) the defendant had permission to publish or post
the material; (3) the plaintiff waived any expectation of
privacy by making it accessible to the general public; (4) the
material constitutes a matter of public concern; or (5) the
material was obtained in a public place and under circumstances
in which the plaintiff had no reasonable expectation of privacy.
The bill would authorize the court to order equitable relief,
including a temporary restraining order, or a preliminary
injunction or a permanent injunction ordering the defendant to
remove the material. In addition, the court may, after holding
a properly noticed hearing, award reasonable attorney's fees and
costs to the prevailing party. Finally, in order to protect the
victim from further unwanted disclosure of these private images,
the bill allows a plaintiff to file the action with a pseudonym
(e.g. Jane or John Doe) and to redact certain identifying
characteristics from the pleadings. Such redacted information
would, of course, be subject to civil discovery by the
defendant. The bill gives responsibility for redacting a name
or other identifying characteristic to the plaintiff, and
requires that, where the plaintiff exercises this option, the
complaint must contain a conspicuous caption to that effect.
Bill Does Not Modify Existing Rights, Immunities, or Remedies :
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Finally, this bill makes it clear that none of its provisions
shall be construed to affect existing rights and remedies. For
example, to the extent (and only to the extent) that a website
or social networking service has immunity from liability for the
postings of third parties under federal law, the website or
service will continue to have that immunity. In addition, this
bill will not diminish any other remedies that a plaintiff may
have under existing law. As discussed below, under appropriate
circumstances, a victim of revenge porn can potentially bring a
cause of action based on various theories of tort (such as
public disclosure of private facts or intentional infliction of
emotional distress). This bill is intended to supplement, not
displace, those other civil remedies.
Background : According to University of Maryland Professor
Danielle Keats Citron, 90% or more of the victims of "revenge
porn" are women. According to Citron's study, one-in-ten former
intimate partners have threatened to expose potentially
embarrassing images of their ex-partner online. Of those, 60%
follow through with the threat. The study found that 59% of
revenge porn posts include the victim's full name, 26% include
an email address, 20% include a phone number, 16% include a
physical home address, and 14% include the victim's work
address. Perhaps most troubling, 49% of victims say they have
been harassed or stalked by people who saw the revenge porn
post. As the Committee consultant discovered to his dismay, if
one searches for information on "revenge porn" online, one must
scroll down through several disturbing websites that,
apparently, have been created for no other purpose than to post
explicit photos of persons with whom one has a grudge. It is
difficult to know the true incidence of the problem; an attorney
who successfully represented a female victim in a tort claim
informed the Committee victims are often reluctant to take
action, fearing that making public charges will risk even
greater humiliation by drawing more attention to the posting.
AB 255 and Criminal Penalties for Revenge Porn : By creating a
civil action for equitable relief, this bill seeks to supplement
legislation enacted last year, AB 255 (Chapter 466, Stats. of
2013), which followed the lead of a handful of other states in
making "revenge porn" a crime. Specifically, AB 255 made it a
misdemeanor for a person to photograph (or otherwise record) and
distribute an image of another person's "intimate body part or
parts" under the following circumstances: (1) the parties
agreed or understood that the image would remain private; (2)
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the defendant distributed the image with the intent to cause
serious emotional distress to the person depicted; and (3) the
depicted person in fact suffers serious emotional distress. AB
255 defined "intimate body part of parts" to mean any portion of
the genitals, and in the case of a female, any portion of the
breasts below the top of the areola.
Because it creates a crime under the Penal Code, AB 255 sets a
much higher bar for establishing criminal liability than this
bill sets for establishing civil liability. For example, unlike
AB 255, this bill does not require proof that the defendant
intended to cause the plaintiff serious emotional distress, and
it does not require proof that the victim in fact suffered
serious emotional distress. Also, unlike AB 255, this bill does
not require that the victim and the defendant agreed or
understood that the material would remain private.
Traditionally, criminal statutes, because they might lead to
incarceration and loss of liberty, require a higher burden of
proof and, usually, a showing of a particular intent or frame of
mind on the part of the defendant. Under this bill, however, no
criminal penalty is imposed; relief will most likely consist of
an injunction ordering the defendant to remove and cease
publishing the offending material. An injunction is a far less
punitive remedy and, arguably, should not require the same
standard as a criminal prosecution. Indeed, timely injunctive
relief may forestall the need for a more costly criminal
prosecution and, if obtained in time, prevent the development of
serious emotional distress. It seems inappropriate, if not a
bit irrational, to require a showing of serious emotional
distress before ordering the removal of the image if removal
will prevent the emotional distress from becoming "serious."
Potential Civil Remedies under Existing Law : Under existing
theories of tort, it is possible for a victim of "revenge porn"
to obtain relief, including compensatory and punitive damages,
as was revealed in a case decided by the Superior Court of Santa
Clara County. In what may have been "the first civil verdict
for revenge porn," according to the legal newspaper, The
Recorder, a San Jose jury awarded $250,000 to a woman's whose
intimate photos were posted, without her consent, on a Facebook
profile created in her name. Apparently, the woman's
ex-boyfriend had somehow obtained the photographs and shared
them with his new partner, who posted them on a fake Facebook
account in the plaintiff's name and then sent "friend requests"
to the plaintiff's friends, family, and colleagues. (The
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Recorder, January 24, 2014.) The plaintiff alleged a number of
civil causes of action, including invasion of privacy (intrusion
into private affairs), invasion of privacy (public disclosure of
private facts), intentional infliction of emotional distress,
negligence, negligent infliction of emotional distress, as well
as criminal impersonation under Penal Code Section 528.5.
("Plaintiff's Trial Brief," Liamsithisack v. Bruce, et. al Case
No. 112CV233490.)
The jury found for the plaintiff on the civil actions for
negligence and the two privacy claims of intrusion into private
affairs and public disclosure of private facts. The jury
rejected the claims of intentional infliction of emotional
distress, negligent infliction of emotional distress, and the
criminal claim for impersonation. On the claim for the
intentional infliction of emotional distress, the jury agreed
with two of three critical elements: (1) the defendant's
conduct was "outrageous" and (2) the defendant intended to cause
emotional distress, but (3) the jury did not find that the
plaintiff's emotional distress rose to required level of
"severe." ("Verdict Forms," Liamsithisack, supra.) In the end,
the plaintiff won a judgment of $100,000 in compensatory damages
against the ex-boyfriend who shared the images with his new
girlfriend, and $150,000 (which included $60,000 in punitive
damages) against the new girlfriend who created the fake
Facebook profile, posted the images, and sent fake friend
requests to the plaintiff's friends, family, and colleagues.
("Judgment," Liamsithisack, supra.)
The Liamsithisack case is highly instructive as to the
potential, and limitations, of existing tort remedies for
revenge porn. Invasion of privacy torts - especially intrusion
and public disclosure of private facts - seem to offer the
lowest hurdle. "Intrusion" requires that a plaintiff has a
reasonable expectation of privacy, that the defendant intended
to intrude upon the plaintiff's privacy, and that the intrusion
would be highly offensive to a reasonable person; but it does
not require that the defendant intended to cause severe
emotional distress and that the plaintiff in fact suffered
severe emotional distress. (See "Verdict Forms, supra.)
Similarly, "public disclosure of private facts" does not require
a showing that "severe" emotional distress was both intended and
resulted. Instead, "private disclosure of public facts"
requires that (1) the defendant publicized the private
information; (2) a reasonable person would consider the
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publicity highly offensive; (3) the defendant acted with
reckless disregard of the fact that a reasonable person would
find the publicity highly offensive; (4) the private information
was not of a public concern; and (5) the defendant's conduct was
a substantial factor in causing harm to the plaintiff. (Id.)
Where these elements are met, existing law provides a civil
remedy for damages, including punitive damages.
However, Liamsithisack also shows the limitations of existing
civil remedies and, arguably ,why this bill might provide a more
reasonable and realistic alternative to victims. Where a
plaintiff seeks damages, including punitive damages, it might be
reasonable to require a showing that the defendant intended to
act either recklessly or with a particular intent, that a
reasonable person would find the conduct highly offensive, and
that the plaintiff suffered some degree of harm or distress,
depending on the particular tort. However, where the victim
only seeks to remove the offending image - where the defendant
posted intentionally or recklessly and the plaintiff had a
reasonable expectation of privacy - the author believes that it
is unreasonable to demand the kinds of showings that would
justify compensatory and punitive damages.
PROPOSED AUTHOR AMENDMENTS : In order to address concerns
brought by the ACLU (see arguments section below) the author
will take the following amendments in Committee:
- On page 3, line 5 insert:
(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.
- On page 2, line 8, delete "penetration or other sexual
act" and insert:
intercourse, oral copulation, sodomy, or other act of sexual
penetration
ARGUMENTS IN SUPPORT : According to the author, "distribution of
intimate imagery has become an increasingly common problem. It
often involves former intimate partners distributing, forwarding
or publishing pictures and videos of their former intimate
partner naked or engaged in sexual acts publicly online." This
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is typically, the author asserts, "an act of revenge for ending
a relationship. Oftentimes, these pictures or videos are posted
along with the victim's phone number, name, and links to the
victim's social media accounts. The emotional and reputational
harm caused by these postings can be devastating. It causes a
great emotional toll as friends, family, coworkers and future
employers suddenly have access to intimate and humiliating
information. This form of abuse may also increase the
likelihood of a physical attack on the victim." The author
believes that this bill will help to address the problem by
"creating a strong, clear and focused civil remedy for victims."
Specifically, the author writes, this bill "provides for
equitable relief in the form of a temporary restraining order, a
preliminary injunction, or a permanent injunction ordering the
defendant to stop distributing the material. This serves the
goal of providing victims with an option for getting the images
out of the public eye as quickly as possible - the primary goal
of the majority of victims. The bill creates a clear pathway
for women and men seeking justice in the courts when a former
intimate partner seeks to betray their trust and cause serious
harm and embarrassment by distributing intimate images."
The California Partnership to End Domestic Violence
(Partnership) supports this bill because it "will create a
private right of action for victims of harm, defamation, and
embarrassment that results from wrongful sharing of intimate
material, often referred to as 'revenge porn.'" The Partnership
claims that many of these images are most likely obtained in the
course of a romantic relationship and, whether obtained
consensually or not, were meant to be kept private. It is
typically only after relationship ends, and one partner seeks to
exact revenge or exert power over the other, that the
once-private images are made public without the consent of the
person depicted in the image. But "no matter the origin," the
Partnership claims, "victims of revenge porn face embarrassment
that seemingly has no end and has led to dire consequences, such
as alienation, loss of employment, and even suicide."
For substantially the same reasons as those articulated above,
this bill is also supported by California Attorney General's
Office, the California Police Chiefs Association, the Consumer
Attorneys of California, the Cyber Civil Rights Initiative, and
Women's Caucus of the McGeorge School of Law.
ARGUMENTS IN OPPOSITION UNLESS AMENDED (prior to amendments
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taken today ): The ACLU opposes this bill unless amended to
narrow its application to circumstances under which the victim
has a reasonable expectation of privacy and to address potential
free speech implications. Specifically, the ACLU raises two
concerns. First, ACLU contends that the bill "is drafted so
broadly that it could prohibit distribution of nude images where
there may be no expectation of privacy - a nude beach - and
without a showing of any harm." Second, ACLU points out that
"sexual act" is not defined and thus potentially too broad or
too vague.
Proposed Amendments Appear to Address Most of ACLU's Concerns :
The ACLU opposition letter is based on the bill in print, not
the bill as proposed to be amended today in Committee (and
listed above.) The first amendment providing that there is no
liability where the distributed material was captured in a
public place and where the victim has no reasonable expectation
of privacy, appears to largely address the ACLU's first concern.
The second amendment, replacing "sexual act" with the more
specific "sexual intercourse, oral copulation, sodomy, or other
act of sexual penetration," appears to address the second
concern. The ACLU letter also suggests that there should be
some "showing of harm" in order to establish liability, which
the bill does not require - and the rationale for which is
discussed in the analysis. However, communications between the
Committee staff, the ACLU, and the author's office indicate a
clear and amicable willingness on the part of all parties to
continue discussions on ways to ensure that the bill
appropriately respects First Amendment rights.
REGISTERED SUPPORT / OPPOSITION :
Support
Attorney General Kamala Harris
California Employment Lawyers Association
California Partnership to End Domestic Violence
California Police Chiefs Association
Consumer Attorneys of California
Cyber Civil Rights Initiative
Democratic Activists for Women Now
McGeorge Women's Caucus
Peace Officers Research Association of California
Women Escaping a Violent Environment (WEAVE)
Two individuals
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Opposition
American Civil Liberties Union (unless amended)
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334