BILL ANALYSIS Ó
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THIRD READING
Bill No: AB 2643
Author: Wieckowski (D), et al.
Amended: 8/6/14 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 6-0, 6/17/14
AYES: Jackson, Corbett, Lara, Leno, Monning, Vidak
NO VOTE RECORDED: Anderson
SENATE APPORPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 75-0, 5/19/14 - See last page for vote
SUBJECT : Invasion of privacy: sexually explicit material
SOURCE : Author
DIGEST : This bill creates 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/her engaged in specified sexual
acts, without his/her consent, and knowing that the other person
had a reasonable expectation that the material remains private,
if specified conditions are met. This bill establishes
affirmative defenses to that cause of action, including waiver
or consent of the person appearing in the material.
Senate Floor Amendments of 8/6/14 make a technical change to
avoid chaptering-out issues with AB 1256 (Bloom) and add a
coauthor.
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ANALYSIS :
Existing law:
1. Makes any person who photographs or records 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, guilty of
disorderly conduct, a misdemeanor. Defines "intimate body
part" for these purposes 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.
2. Provides, besides the personal rights mentioned or recognized
in the Government Code, every person has, subject to the
qualifications and restrictions provided by law, the right of
protection from bodily restraint or harm, from personal
insult, from defamation, and from injury to his/her personal
relations.
3. Provides that every person is bound, without contract, to
abstain from injuring the person or property of another, or
infringing upon any of his/her rights. Existing case law
provides that, in general, if a voluntary act, lawful in
itself, may naturally result in the injury of another, or in
the violation of his/her legal rights, the actor must at
his/her peril see to it that such injury or violation does
not follow, or he/she must expect to respond in damages
therefor, regardless of the motive or degree of care with
which the act is performed.
4. Provides for torts of domestic violence, stalking, physical
and constructive invasion of privacy.
5. Defines, with respect to an action for libel, in relevant
part, "general damages" as damages for loss of reputation,
shame, mortification and hurt feelings and "special damages"
as all damages which plaintiff alleges and proves that he/she
has suffered in respect to his/her property, business, trade,
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profession or occupation, including such amounts of money as
the plaintiff alleges and proves he/she has expended as a
result of the alleged libel, and no other.
This bill:
1. Allows for a new private cause of action 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 knows that the
other person had a reasonable expectation that the material
remains 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.
2. 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.
3. Provides that there shall be no liability on the part of the
person distributing material 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 and distribution;
B. 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;
C. The person appearing in the material waived any
reasonable 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,
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videotaped, recorded, or otherwise reproduced in a
public place and under circumstances in which the person
depicted had no reasonable expectation of privacy; and
F. The distributed material was previously distributed
by another person.
4. Authorizes a court, in addition to any other relief available
at law, to order equitable relief against the person
violating this bill, including a temporary restraining order,
or a preliminary injunction or a permanent injunction
ordering the defendant to cease distribution of material.
The court may grant injunctive relief maintaining the
confidentiality of a plaintiff using a pseudonym, as
specified. Specifies processes for the use of a pseudonym,
placing responsibility solely upon the parties and their
counsel to redact the plaintiff's name from all documents
filed with the court. The Judicial Council will be required
to develop, by July 1, 2015, the confidential information
form required for the use of a pseudonym.
5. Authorizes a court to grant, after holding a properly noticed
hearing, reasonable attorney's fees and costs to the
prevailing plaintiff.
6. Provides that nothing in this bill shall be construed to
alter or negate any rights, obligations, or immunities of an
interactive service provider, as defined under federal law.
This bill also provides that nothing in this bill shall be
construed to limit or preclude a plaintiff from securing or
recovering any other available remedy.
7. Contains a severability clause, and a delayed operative date
of July 1, 2015.
Background
"Revenge porn" has received national attention in recent years,
with legislation being proposed throughout the various states to
address this unfortunate phenomenon. As described by the
National Conference of State Legislatures (NCSL), revenge porn
is the posting of nude or sexually explicit photographs or
videos of people online without their consent, even if the
photograph itself was taken with consent. It can be as a result
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a spurned spouse, girlfriend, or boyfriend who seeks to get
revenge by uploading photographs to Web sites, many of which are
set up specifically for these kinds of photos or videos. (NCSL,
State "Revenge Porn" Legislation (May 30, 2014)
[as of Jun. 11,
2014].) It can also be as a result of the acts of a person who
hacks into a personal computer and then releases the photographs
or videos. The victim's name, address, and links to social
media profiles are often included with the images, and some Web
sites charge a fee to have the materials removed.
Accordingly, last year, SB 255 (Cannella, Chapter 466, Statutes
of 2013) made it unlawful in California for any person who
photographs or records 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, to subsequently distribute the image
taken, if there was intent to cause serious emotional distress
and the depicted person suffers serious emotional distress. A
person who commits this crime is guilty of a disorderly conduct
misdemeanor.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 8/7/14)
Attorney General Kamala Harris
California Employment Lawyers Association
California Partnership to End Domestic Violence
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
ARGUMENTS IN SUPPORT : According to the author:
The purpose of AB 2643 is to create a clear, focused civil
remedy for victims of non-consensual distribution of
intimate images, including a temporary restraining order,
injunctive relief and a pseudonymous pleading provision.
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Research completed by University of Maryland Professor
Danielle Keats Citron and the Cyber Civil Rights Initiative
shows that at least 90 [percent] of the victims of
non-consensual distribution of intimate imagery are women.
This research further found that one-in-ten former intimate
partners have threatened to expose their ex by sharing
intimate images of their ex online. Of those who threaten
this, 60 [percent] follow through with the threat. Of that
60 [percent], 59 [percent] share their ex's full name, 26
[percent] include her email address, 16 [percent] include a
home address, and 14 [percent] include the victim's work
address. This non-consensual distribution degrades,
emotionally harms and severely embarrasses the victims. It
guarantees reputational harm and frequently affects
employment status or prospects. It further creates a
substantial safety risk for many of the women victims, 49
[percent] report they were harassed or stalked by people
who saw the revenge porn post.
Despite the increasing frequency of such devastating
distribution, the law has not caught up with non-consensual
distribution of intimate imagery. Last year SB 255
(Cannella) made the first steps to address the issue by
creating a criminal penalty for distributing intimate
images without consent in certain circumstances. However,
there are still instances where the criminal law would not
apply to a non-consensual distribution situation. There
are also victims who do not want to approach the situation
from a criminal justice standpoint. Currently, there is
still no clear path to a civil remedy for victim[s].
Intentional infliction of emotional distress, invasion of
privacy, public disclosure of private facts, or other
common law tort claims do not clearly fit the form of
conduct involved. Nor do they provide for pseudonymous
filing that prevents further harm, embarrassment, or risk
of harassment or physical attack that comes from the
intimate images and victim's information becoming part of
the public court record when the victim files the civil
suit. Currently, if a victim is willing to file a civil
suit despite the risks, they typically must assert multiple
claims hoping one will "stick" with that particular court.
This bill provides a direct, private right of action that
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fights the particulars of non-consensual distribution of
intimate imagery. It protects victims from further
embarrassment and potential harassment by providing an
option for pseudonymous filing. The bill explicitly
provides for equitable relief in the form of a temporary
restraining order, a preliminary injunction, or a permanent
injunction ordering the defendant to remove the distributed
images. This addresses the primary objective of most
victims who simply want their private images taken down.
Thus, this solves the non-consensual distribution of
intimate images problem by creating a clear pathway for
victims seeking legal justice when a former intimate
partner has betrayed their trust and caused serious harm
and embarrassment through the distribution of intimate
images.
ASSEMBLY FLOOR : 75-0, 5/19/14
AYES: Achadjian, Alejo, Allen, Ammiano, Bigelow, Bloom,
Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian
Calderon, Campos, Chau, Chávez, Chesbro, Conway, Cooley,
Dababneh, Dahle, Daly, Dickinson, Eggman, Fong, Fox, Frazier,
Beth Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell,
Gray, Grove, Hagman, Hall, Harkey, Roger Hernández, Holden,
Jones, Jones-Sawyer, Levine, Linder, Logue, Lowenthal,
Maienschein, Medina, Melendez, Mullin, Muratsuchi, Olsen, Pan,
Patterson, Perea, John A. Pérez, V. Manuel Pérez, Quirk,
Quirk-Silva, Rendon, Ridley-Thomas, Rodriguez, Salas, Skinner,
Stone, Ting, Wagner, Waldron, Weber, Wieckowski, Wilk,
Williams, Yamada, Atkins
NO VOTE RECORDED: Donnelly, Mansoor, Nazarian, Nestande,
Vacancy
AL:d 8/7/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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