BILL ANALYSIS �
AB 2643
Page 1
ASSEMBLY THIRD READING
AB 2643 (Wieckowski)
As Amended April 24, 2014
Majority vote
JUDICIARY 10-0 APPROPRIATIONS 17-0
-----------------------------------------------------------------
|Ayes:|Wieckowski, Wagner, |Ayes:|Gatto, Bigelow, |
| |Alejo, Chau, Dickinson, | |Bocanegra, Bradford, Ian |
| |Garcia, Gorell, | |Calderon, Campos, |
| |Maienschein, Muratsuchi, | |Donnelly, Eggman, Gomez, |
| |Stone | |Holden, Jones, Linder, |
| | | |Pan, Quirk, |
| | | |Ridley-Thomas, Wagner, |
| | | |Weber |
|-----+--------------------------+-----+--------------------------|
| | | | |
-----------------------------------------------------------------
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:
AB 2643
Page 2
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.
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
AB 2643
Page 3
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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, negligible state trial court costs for a new cause of
action.
COMMENTS : This bill would permit a 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
enjoining or otherwise ordering the defendant to remove the
material. In addition, the court may award reasonable
attorney's fees and costs, as specified. 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 and to redact certain identifying characteristics from
the pleadings, as specified. Finally, this bill specifies that
AB 2643
Page 4
none of its provisions shall limit the plaintiff's ability to
pursue other remedies, including actions that a plaintiff might
bring under various tort theories.
By creating a civil action for equitable relief, this bill would
supplement last year's SB 255 (Cannella), Chapter 466, Statutes
of 2013, which 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) 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.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334 FN:
0003500