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 48.95 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 or recklessly distributes a photograph or recorded image of another that exposes the intimate body parts begin insert , as defined, end insert of that person or him or her engaged in a sexual act, without his or her consent, if specified conditions are met begin delete , including that the person depicted suffer emotional distress end delete . 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 begin delete substituting end delete begin insert a plaintiff to proceed using end insert a pseudonym begin delete for the end delete begin insert instead of his or her end insert true name begin delete of the plaintiff end delete . begin insert The bill would require a plaintiff using a pseudonym in a civil proceeding under these provisions to file a confidential information form, as specified. end insert begin insert The bill would make these provisions operative July 1, 2015. end insert

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This bill would further require the Judicial Council to develop that confidential information form by July 1, 2015.

end insert

Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program: no.

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

SECTION 1.  

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

48.95.  

(a) A private cause of action lies against a person who
intentionally or recklessly distributes begin insert by any means end insert a photograph,
film, videotape, recording, or any other reproduction of another,
without his or her consent, if begin delete all of the following are met: end delete begin insert the
distributed material exposes an intimate body part of the other
person, or shows the other person engaging in an act of sexual
penetration or other sexual act. end insert

begin delete

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

end delete begin delete

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

end delete begin insert

(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.

end insert begin delete

(b)

end delete

begin insert (c) end insert  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 begin delete possess
or view end delete begin insert publish or post end insert the material.

(3) The person appearing in the material waived any expectation
of privacy in the distributed material by begin delete distributing it to a
substantial number of persons end delete begin insert end insert begin insert making it accessible to the general
public end insert .

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

begin delete

(c)

end delete

begin insert ( end insert begin insert d) end insert  In addition to any other relief, 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 remove the
distributed material. The court may grant injunctive relief
substituting a pseudonym for the true name of the plaintiff pursuant
to subdivision (d). The court may also grant, after holding a
properly noticed hearing, reasonable attorneys fees and costs to
the prevailing party.

begin delete

(d)

end delete

begin insert (e) end insert  (1)  begin delete In end delete begin insert A plaintiff in end insert a civil proceeding pursuant to subdivision
(a), begin delete the court shall substitute end delete begin insert may proceed using end insert a pseudonym begin insert ,
either John Doe, Jane Doe, or Doe, end insert for the true name of the
begin delete plaintiff. The actual name and end delete begin insert plaintiff and may exclude or redact
from all pleadings and documents filed in the action end insert other
identifying characteristics of the plaintiff begin delete shall be revealed to the
court only in camera, and the court shall seal that information from
further revelation, except to defense counsel as part of discovery end delete begin insert .
A plaintiff who proceeds using a pseudonym and excluding or
redacting identifying characteristics as provided in this section
shall file 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. Nothing in
this section restricts the defendant’s right to discovery from the
plaintiff of information contained in the confidential information
form end insert .

(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.

(3) Unless the plaintiff requests otherwise begin delete , the court shall, at
the first opportunity, issue an order that end delete begin insert and the court so orders, end insert
the parties, their counsel and other agents, begin delete court staff, end delete and all other
persons subject to the jurisdiction of the court shall make no public
revelation of the name or any other identifying characteristics of
the plaintiff.

(4) 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 insert

(5) 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.

end insert begin insert

(f) In an action pursuant to this section, the plaintiff shall state
in the caption of the complaint “ACTION BASED ON CIVIL CODE
SECTION 48.95.”

end insert begin insert

(g) 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.

end insert begin insert

(h) 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.

end insert begin insert

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

end insert

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begin insert SEC. 2. end insert   

end insert

begin insert The Judicial Council shall, by July 1, 2015, develop
the confidential information form specified in subdivision (e) of
Section 48.95 of the Civil Code. end insert