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, as defined, of that person or him or her engaged inbegin delete aend deletebegin insert specifiedend insert sexualbegin delete act,end deletebegin insert
acts,end insert without his or her consent, 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 ofbegin delete sexual penetration or other sexual actend delete
8begin insert intercourse, oral copulation, sodomy, or other act of sexual
9penetrationend insert.
10(b) As used in this section, “intimate body part”
means any
11portion of the genitals, and, in the case of a female, also includes
12any portion of the breast below the top of the areola, that is
13uncovered or visible through less than fully opaque clothing.
14(c) There shall be no liability on the part of the person
15distributing material under subdivision (a) under any of the
16following circumstances:
17(1) The distributed material was created under an agreement by
18the person appearing in the material for its public use and
19distribution or otherwise intended by that person for public use
20and distribution.
21(2) The person possessing or viewing the distributed material
22has permission from the person appearing in the material to publish
23or post the material.
24(3) The person appearing in the material waived any expectation
25of privacy in the distributed material by making it accessible to
26the general public.
27(4) The distributed material constitutes a matter of public
28concern.
29(5) The distributed material was photographed, filmed,
30videotaped, recorded, or otherwise reproduced in a public place
P3 1and under circumstances in which the person depicted had no
2reasonable expectation of privacy.
3(d) In addition to any other relief, the court may order equitable
4relief against the person violating subdivision (a), including a
5temporary restraining
order, or a preliminary injunction or a
6permanent injunction ordering the defendant to remove the
7distributed material. The court may grant injunctive relief
8substituting a pseudonym for the true name of the plaintiff pursuant
9to subdivision (d). The court may also grant, after holding a
10properly noticed hearing, reasonablebegin delete attorneysend deletebegin insert attorney’send insert fees and
11costs to the prevailing party.
12(e) (1) A plaintiff in a civil proceeding pursuant to subdivision
13(a), may proceed using a pseudonym, either John Doe, Jane Doe,
14or Doe, for the true name of the plaintiff and may exclude or redact
15from all pleadings and documents filed in the action other
16identifying
characteristics of the plaintiff. A plaintiff who proceeds
17using a pseudonym and excluding or redacting identifying
18characteristics as provided in this section shall file a confidential
19information form for this purpose that includes the plaintiff’s name
20and other identifying characteristics excluded or redacted. The
21court shall keep the plaintiff’s name and excluded or redacted
22characteristics confidential. Nothing in this section restricts the
23defendant’s right to discovery from the plaintiff of information
24contained in the confidential information form.
25(2) All court decisions, orders, petitions, and other documents,
26including motions and papers filed by the parties, shall be worded
27so as to protect the name or other identifying characteristics of the
28plaintiff from
public revelation.
29(3) Unless the plaintiff requests otherwise
and the court so
30orders,
the parties, their counsel and other agents, and all other
31persons subject to the jurisdiction of the court shall make no public
32revelation of the name or any other identifying characteristics of
33the plaintiff.
34(4) As used in this subdivision, “identifying characteristics”
35includes, but is not limited to, name or any part thereof, address
36or any part thereof, city or unincorporated area of residence, age,
37marital status, relationship to defendant, and race or ethnic
38background.
39(5) The responsibility for excluding or redacting the name or
40identifying characteristics of the plaintiff from all documents filed
P4 1with the court rests solely with the parties and their attorneys.
2Nothing in this section requires the court to review pleadings or
3other papers for
compliance with this provision.
4(f) In an action pursuant to this section, the plaintiff shall state
5in the caption of the complaint “ACTION BASED ON CIVIL
6CODE SECTION 48.95.”
7(g) Nothing in this section shall be construed to alter or negate
8
any rights, obligations, or immunities of an interactive service
9provider under Section 230 of Title 47 of the United States Code.
10Nothing in this section shall be construed to limit or preclude a
11plaintiff from securing or recovering any other available remedy.
12(h) The provisions of this section are severable. If any provision
13of this section or its application is held invalid, that invalidity shall
14not affect other provisions or applications that can be given effect
15without the invalid provision or application.
16(i) This section shall become operative on July 1, 2015.
The Judicial Council shall, by July 1, 2015, develop
18the confidential information form specified in subdivision (e) of
19Section 48.95 of the Civil Code.
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