BILL ANALYSIS �
AB 2643
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 2643 (Wieckowski)
As Amended August 6, 2014
Majority vote
-----------------------------------------------------------------
|ASSEMBLY: |75-0 |(May 19, 2014) |SENATE: |36-0 |(August 21, |
| | | | | |2014) |
-----------------------------------------------------------------
Original Committee Reference: JUD.
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 distributes by any means a photograph, film,
videotape, recording, or any other reproduction of another
without his or her consent, knowing that the other person had
a reasonable expectation of privacy, 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:
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
AB 2643
Page 2
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
reasonable attorney's fees and costs to the prevailing party,
as specified.
4)Permits the court to grant injunctive relief to substitute a
pseudonym for the true name of the plaintiff and to maintain
the confidentiality of that plaintiff. Permits a plaintiff to
exclude or redact from all pleadings and documents other
identifying characteristics of the plaintiff, as specified.
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.
The Senate amendments :
1)Move the bill's provisions to a different code section.
AB 2643
Page 3
2)Eliminate liability of a person who recklessly (but not
intentionally) distributes material.
3)Require that defendant know that the other person had a
reasonable expectation of privacy before imposing liability.
4)Specify that a court may grant injunctive relief to maintain
the confidentiality of a plaintiff using a pseudonym.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : This bill would permit a person whose image is
intentionally 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; 5) the material was obtained in a
public place and under circumstances in which the plaintiff had
no reasonable expectation of privacy; and 6) the defendant knew
that that the other person has a 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, and it allows the court to grant injunctive
relief to maintain the confidentiality of a plaintiff using a
pseudonym. Finally, this bill specifies that 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.
AB 2643
Page 4
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0004362