BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 2643 (Wieckowski)
As Amended June 9, 2014
Hearing Date: June 17, 2014
Fiscal: Yes
Urgency: No
RD
SUBJECT
Invasion of Privacy: Distribution of Sexually Explicit Materials
DESCRIPTION
This bill would create, subject to certain exceptions, a new
basis for civil liability for the non-consensual and intentional
distribution of intimate images where the person in those images
had a reasonable expectation of privacy, the defendant knew that
the other person had a reasonable expectation that the material
would remain private, and the person suffers either general
damages or special damages, as specified. The bill would protect
third parties from civil liability where the distributed
material was previously distributed by another person, and would
otherwise exempt defendants from civil liability in certain
circumstances, such as where the person appearing in the
material waived any reasonable expectation of privacy in the
distributed material by making it accessible to the general
public.
The bill would authorize, in addition to any other relief
available at law, equitable relief against the person in
violation of this bill, including a temporary restraining order,
or a preliminary or permanent injunction, as specified, and
would provide for attorney's fees and costs for the prevailing
party.
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
(more)
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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
a spurned spouse, girlfriend, or boyfriend who seeks to get
revenge by uploading photographs to websites, 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, Ch. 466, Stats. 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. (Pen.
Code Sec. 947(j)(4)(A).)
This bill would create a new basis for civil liability for the
intentional distribution of intimate images where a victim had a
reasonable expectation of privacy, did not consent to
distribution, and was harmed as a result of the distribution, as
specified. This remedy would be available in addition to the
available remedies at law.
CHANGES TO EXISTING LAW
Existing law 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. (Pen. Code Sec. 947(j)(4)(A).) Existing
law defines "intimate body part" for these purposes to mean any
portion of the genitals, and in the case of a female, also
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includes any portion of the breasts below the top of the areola,
that is either uncovered or visible through less than fully
opaque clothing. (Pen. Code Sec. 947(j)(4)(B).)
Existing law 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 personal
relations. (Civ. Code Sec. 43.)
Existing law provides that every person is bound, without
contract, to abstain from injuring the person or property of
another, or infringing upon any of his or her rights. (Civ.
Code Sec. 1708.) 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 legal rights,
the actor must at his peril see to it that such injury or
violation does not follow, or he must expect to respond in
damages therefor, regardless of the motive or degree of care
with which the act is performed. (McKenna v. Pacific E. R. Co.
(1930) 104 Cal. App. 538, 542 (internal citation omitted).)
Existing law provides for torts of domestic violence, stalking,
physical and constructive invasion of privacy. (Civ. Code Secs.
1708.6, 1708.7, 1708.8.)
Existing law , with respect to an action for libel, in relevant
part, defines "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 has suffered in respect to his property,
business, trade, profession or occupation, including such
amounts of money as the plaintiff alleges and proves he has
expended as a result of the alleged libel, and no other. (Civ.
Code Sec. 48a(4)(a)-(b).)
This bill would allow 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 knew that the other person had a reasonable expectation
that the material would remain 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 as described
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above.
This bill would define "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.
This bill would provide that there shall be no liability on the
part of the person distributing material under any of the
following circumstances:
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;
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;
the person appearing in the material waived any reasonable
expectation of privacy in the distributed material by making
it accessible to the general public;
the distributed material constitutes a matter of public
concern;
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;
the distributed material was previously distributed by another
person.
This bill would authorize 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 substituting a pseudonym for
the true name of the plaintiff, as specified. The bill
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 would be required to develop, by
July 1, 2015, the confidential information form required for the
use of a pseudonym.
This bill would authorize a court to grant, after holding a
properly noticed hearing, reasonable attorney's fees and costs
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to the prevailing party.
This bill would provide 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. The bill would also provide that nothing in this
bill shall be construed to limit or preclude a plaintiff from
securing or recovering any other available remedy.
This bill contains a severability clause, and a delayed
operative date of July 1, 2015.
COMMENT
1. Stated need for the bill
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.
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
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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
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.
Also in support, the California Partnership to End Domestic
Violence adds that while these pictures were most commonly taken
during the course of a romantic relationship and were meant to
be kept private, in some cases the images were acquired without
the consent of the subject. "No matter the origin, 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. Many survivors of domestic
violence have experienced this specific abuse tactic. It is
especially common when the victim has left the relationship, and
as an attempt to exact revenge and exert power over the victim,
an abuser will post extremely personal pictures of a sexually
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charged nature. [ . . . ] By providing a private right of
action, AB 2643 empowers victims with an option for getting the
images out of the public eye as quickly as possible, and allows
for the victim to obtain relief and justice for these acts."
2. The proposed private right of action is predicated upon
distribution in violation of a reasonable expectation of
privacy, not distribution of an otherwise lawful image
This bill would create a new cause of action premised upon the
non-consensual, intentional distribution of specified items
depicting an intimate body part of another person, where (1) the
other person had a reasonable expectation of privacy, (2) the
defendant knew that the person had a reasonable expectation that
the material would remain private, and (3) the person in the
image suffered specified harm as a result of the non-consensual
distribution. In terms of the last element, relating to harm
caused to the plaintiff, the plaintiff need only show harm that
satisfies general damages or special damages as those terms are
used under libel law in California, opposed to the more
stringent "severe emotional harm" standard used in intentional
infliction of emotional distress tort cases. Accordingly,
pursuant to this bill, the plaintiff can recover damages
suffered in respect to his or her property, business, trade,
profession or occupation, including such amounts of money as the
plaintiff alleges and proves he or she has expended as a result
of the violation (special damages), but can also recover damages
for loss of reputation, shame, mortification, and hurt feelings
(general damages). In terms of remedies, the bill allows courts
to grant equitable relief against the person in violation of
this bill, including a temporary restraining order, or a
preliminary or permanent injunction ordering the defendant to
cease distribution of material.
In support of the bill, the Cyber Civil Rights Initiative (CCRI)
writes that "[r]evenge porn, or non-consensual pornography, has
unfortunately become an epidemic in the United States and around
the world. In most cases today, revenge porn is posted to the
Internet; a place where perpetrators can hide behind the cloak
of anonymity, and cause victims the most harm with the least
amount of effort. With the click of a button, perpetrators can
send victims' lives spiraling out of control leaving them in a
state of hopelessness, despair, and sometimes severe paranoia."
CCRI notes that victims can also experience the loss of a job
and/or difficulty finding a job, the loss of a partner, the loss
of respect of their loved ones, can fear leaving their homes and
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can even feel unsafe in their own home. On top of all this,
"[v]ictims often feel they have no recourse when they discover
their intimate images have been distributed without consent.
They are not sure what to call what has happened to them; they
are afraid what taking legal action will mean even greater
exposure, and they are not sure that the benefit of the process
would be. This bill helps with all three of these burdens [ . .
. ] by giving this harm a name, a safe process, and a specific
remedy.
3. Bill authorizes pseudonyms to prevent further victimization
of the plaintiff and encourage them to obtain relief for their
injuries in the courts
This bill would authorize a court to grant injunctive relief
substituting a pseudonym for the true name of a plaintiff. A
plaintiff would be permitted to proceed using a pseudonym
(specifically, either as John Doe, Jane Doe, or Doe), for his or
her true name and to exclude or redact from all pleadings and
documents filed in the action his or her other identifying
characteristics. These characteristics would include, for
example, the plaintiff's name, address, age, race, or
relationship to defendant. A plaintiff who proceeds under a
pseudonym, would have to file with the court and serve upon the
defendant a confidential information form for this purpose that
includes the plaintiff's name and other identifying
characteristics excluded or redacted. Pursuant to the bill's
pseudonym provisions, the court would be required to keep the
plaintiff's name and excluded or redacted characteristics
confidential and all court decisions, orders, petitions, and
other documents, including motions and papers filed by the
parties, would be required to be worded so as to protect the
name or other identifying characteristics of the plaintiff from
public revelation. Significantly, to reduce any potential
burdens on the courts, the bill would place the responsibility
for excluding or redacting the plaintiff's identifying
characteristics from all documents filed with the court solely
with the parties and their attorneys, and states that the bill
does not obligate the court to review pleadings or other papers
for compliance.
As a matter of public policy, because the public has a First
Amendment right to access records, the use of pseudonyms in
cases should be the exception, not the rule. However, there is
precedent under California law for doing so in certain cases to
safeguard the individual privacy and prevent harassment,
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including cases involving victims of sexual offenses and in
cases where the courts find it necessary to safeguard the
individual privacy and prevent harassment of a health care
patient, licensed health practitioner, or employee, client, or
customer of a health care facility who is a party or witness in
the proceeding. (See Pen. Code Secs. 293, 293.5; Civ. Code Sec.
3427.3; see also Health & Saf. Code Sec. 120291, allowing for
victims of intentional HIV infections to use pseudonyms.) While
some might argue that such cases are arguably distinguishable
from the types of offenses addressed by this bill, it could be
said that the intentional distribution of an intimate image of
another person who specifically expressed desire to keep the
image private or who reasonably expected it would be kept
private by a person they trusted, is an offense upon that
person's body not unlike a sexual assault. Indeed, one
supporter of this legislation, the Cyber Civil Rights
Initiative, specifically notes that "[r]evenge porn is a form of
sexual abuse. It is the use of sex to control and humiliate the
victim. Based upon our conversations with thousands of victims
around the world, revenge porn victims suffer many of the same
symptoms that victims of rape experience: numbing, nightmares,
depression, anxiety, sudden changes in appetite, sleep
disturbance, suicidal thoughts, feelings of
guilt/shame/self-blame, poor concentration, and post-traumatic
stress." It can also result in loss of employment or potential
employment.
In support of the bill, Women Escaping a Violent Environment
(WEAVE) writes that the option to file claims pseudonymously is
"vital because otherwise many victims will not bring forth
claims for fear of drawing further public attention to the
images." Also in support of the bill, the California Employment
Lawyers Association (CELA) adds that non-consensual distribution
not only "degrades, emotionally harms and severely embarrasses
the victims" but "it guarantees reputational harm and frequently
affects employment status or prospects." CELA writes:
In addition, victims who are also litigants in an employment
lawsuit against their employers, particularly in sexual
harassment cases, are vulnerable to intimidation tactics by
employers defending the lawsuit. Employer defendants will
often search for embarrassing evidence against the employee
plaintiff, such as intimate images which are intended to be
private, in order to retaliate and to use them in a public
forum (whether in court or some other public forum) as a
tactic to discredit the employee, defend their actions, or
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humiliate them to the point that they feel compelled to
dismiss their case.
Despite its increasing frequency, the law has not caught up
with non-consensual distribution of intimate imagery.
Currently, there is still no clear path to a civil remedy for
victims. 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.
Accordingly, by providing for the use of pseudonyms, this bill
appears to remove a disincentive from bringing legitimate
lawsuits and also address issues such as employer retaliation.
While such helpfulness is arguably tampered by the reality that
once photographs or videos or other intimate images or sounds
are made available on the Internet, little if anything can be
done to remove the previously distributed images, this bill, at
the very least, helps plaintiffs prevent the future distribution
of those images.
4. Attorney's fees
This bill would allow for a court to grant, upon a properly
noticed hearing, attorney's fees and costs to a prevailing party
in an action brought under this bill. This could
unintentionally serve as a deterrent to victims to bring suits,
as they could be required to bear the costs of the defendant if,
for whatever reason, they fail to prove one of the elements of
this proposed tort.
The following amendment would allow for the prevailing plaintiff
(i.e. the victim) to recover attorney's fees, while removing any
deterrence for victims to bring claims as a result of a two way
shifting fee.
Suggested amendment :
On page 5, line 24, strike "party" and insert "plaintiff"
5. Author's amendments
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The author offers the following amendments that would: (1)
correct a drafting error and ensure the burden of implementing
the pseudonym provisions falls on the parties and their counsel,
and not on the courts; and (2) strike the provision to require
counsel for all parties to comport their conduct with a
specified rule of professional conduct and require that counsel
and all parties comply with any lawful order of the court.
Author's amendments :
(1): On page 5, lines 19-21, strike "The court may grant
injunctive relief substituting a pseudonym for the true name
of the plaintiff pursuant to subdivision (e)" and insert "The
court may grant injunctive relief maintaining the
confidentiality of a plaintiff using a pseudonym as provided
in subdivision (f)"
(2): On page 6, strike lines 1-4, inclusive and renumber
accordingly
6. Removal of opposition
Based upon the June 9 amendments to the bill, the American Civil
Liberties Union has removed its opposition to the bill and is
now neutral.
Support : 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 (PORAC); Women Escaping a Violent Environment
(WEAVE); two individuals
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : SB 255 (Cannella, Ch. 466, Stats. 2013) See
Background.
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Prior Vote :
Assembly Floor (Ayes 75, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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