Bill Text: CA AB1394 | 2023-2024 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Commercial sexual exploitation: child sexual abuse material: civil actions.

Spectrum: Moderate Partisan Bill (Democrat 4-1)

Status: (Passed) 2023-10-08 - Chaptered by Secretary of State - Chapter 579, Statutes of 2023. [AB1394 Detail]

Download: California-2023-AB1394-Amended.html

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Amended  IN  Assembly  April 10, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill

No. 1394

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Introduced by Assembly Member Wicks

February 17, 2023

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An act to amend Sections 3344 and Section 3345.1 of, and to add Sections 3344.2 and 3344.3 to, Title 21 (commencing with Section 3273.60) to Part 4 of Division 3 of, the Civil Code, relating to social media platforms.

LEGISLATIVE COUNSEL'S DIGEST

AB 1394, as amended, Wicks. Commercial sexual exploitation: child sexual abuse material: civil actions.

Existing law, in a civil action brought by, on behalf of, or for the benefit of a minor, or nonminor dependent, against a person who engaged in an act of commercial sexual exploitation, as defined, of a minor or nonminor dependent, authorizes the trier of fact to either impose a fine, civil penalty, or other penalty, or other remedy in an amount up to 3 times greater than authorized by the statute or to award a civil penalty not exceeding $50,000 and not less than $10,000 for each act of commercial sexual exploitation committed by the defendant if the tier of fact makes an affirmative finding regarding certain factors, including whether the defendant’s conduct was directed to more than one minor or nonminor dependent, as prescribed.

This bill would prohibit a social media platform, as defined, from knowingly, recklessly, or negligently facilitating, aiding, or abetting commercial sexual exploitation. The bill would require a court to award a civil penalty statutory damages not exceeding $5,000,000 and not less than $1,000,000 for each act of commercial sexual exploitation facilitated, aided, or abetted by the social media platform. The bill would define “facilitate, aid, or abet” to include, but not be limited to, being directly involved in, or actively participating in, the development, deployment, or enforcement of mean to deploy a system, design, feature, or affordance that the social media platform knows, or should know, foreseeably causes child is a substantial factor in causing minor users to be victims of commercial sexual exploitation.

Existing law, the California Consumer Privacy Act of 2018, grants to a consumer various rights with respect to personal information, as defined, that is collected by a business, as defined, including the right to request that a business delete personal information about the consumer that the business has collected from the consumer. Existing law authorizes a minor to disaffirm a contract before majority or within a reasonable time afterwards or, in case of the minor’s death within that period, by the minor’s heirs or personal representative.

This bill would authorize a minor victim of commercial sexual exploitation who disaffirms a contract with a social media platform to submit a request to the social media platform, pursuant to a certain procedure, that the social media platform permanently block from being viewable on the social media platform specific photographs or videos, or versions or reproductions in which the minor victim is readily identifiable, as specified, depicting the minor that are related to the minor victim’s commercial sexual exploitation. The bill would require a social media platform to comply with that request within 30 days of receiving the request.

This bill would authorize a person who is at least 18 years of age who was a minor victim of commercial sexual exploitation to submit a similar request in the same fashion as described above and would require the social media platform to comply with that request within 30 days of receiving the request. The bill would make a social media platform that violates those provisions liable for reasonable attorney’s fees and a civil penalty of up to $250,000 for each violation, as specified.

Existing law makes liable for actual and statutory damages a person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without that person’s prior consent, or, in the case of a minor, the prior consent of the person’s parent or legal guardian.

This bill would make it a violation of that provision to violate the provision of this bill described above with respect to a request made by a person who is at least 18 years of age who was a minor victim of commercial sexual exploitation.

This bill would require a social media platform to, among other things, provide, in a form that is reasonably accessible to users, a means for a user who is a California resident to report material to the social media platform that the user reasonably believes meets certain criteria, including that the reported material is child sexual abuse material, as defined, in which the reporting user is an identifiable minor depicted in the reported material.

This bill would require the social media platform to permanently block the reported material from being viewable on the social media platform, as prescribed, if the reported material is child sexual abuse material that is displayed, stored, or hosted on the social media platform. The bill would make a violator of those provisions liable to the reporting user, including statutory damages of no more than $250,000 per violation, as specified.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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Bill Text

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

SECTION 1.

 The Legislature finds and declares all of the following:

(a) Social media platforms frequently facilitate the sexual abuse, exploitation, and trafficking of children. Social media platforms are aware of this issue and have not taken steps sufficient to stop the problem.

(b) A Facebook whistleblower has, in a sworn statement submitted to the United States Securities and Exchange Commission, stated all of the following:

(1) Facebook’s efforts to prevent sexual abuse of children are inadequate and underresourced.

(2) Facebook does not track the full scale of child sexual abuse on its platforms, and executives refuse to spend funds available in order to prioritize “return on investment.”

(3) Facebook’s moderators are not sufficiently trained and are ill-prepared to prevent child sexual abuse.

(4) Facebook’s Groups, which are described as relying on self-policing, are facilitating harm and child sexual abuse because the product design allows sexual predators to use code words to describe the type of child and the type of sexual activity. The predators use Facebook’s encrypted Messenger service or WhatsApp to share these codes, which change routinely.

(5)

(c) A Forbes review of hundreds of recent TikTok livestreams revealed how viewers regularly use the comments to urge young girls to perform acts that appear to toe the line of child pornography, rewarding those who oblige with TikTok gifts that can be redeemed for money, or off-platform payments to Venmo, PayPal or Cash App accounts that users list in their TikTok profiles. According to an assistant dean at Harvard Law School and faculty associate at Harvard’s Berkman Klein Center for Internet & Society, “[i]t’s the digital equivalent of going down the street to a strip club filled with 15-year-olds.”

SEC. 2.Section 3344 of the Civil Code is amended to read:

3344.

(a)(1)Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without that person’s prior consent, or, in the case of a minor, the prior consent of the minor’s parent or legal guardian, shall be liable for any damages sustained by a person injured as a result thereof. In addition, in any action brought under this section, a person who violated the section shall be liable to an injured party in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by the injured party as a result of the unauthorized use and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing those profits, the injured party shall present proof only of the gross revenue attributable to the use, and the person who violated this section shall prove the person’s deductible expenses. Punitive damages may also be awarded to an injured party. The prevailing party in any action under this section shall also be entitled to attorney’s fees and costs.

(2)A violation of Section 3344.3 is a violation of this subdivision.

(b)As used in this section, “photograph” means any photograph or photographic reproduction, still or moving, or any videotape or live television transmission, of any person, such that the person is readily identifiable.

(1)A person shall be deemed to be readily identifiable from a photograph when one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use.

(2)If the photograph includes more than one person so identifiable, then the person or persons complaining of the use shall be represented as individuals rather than solely as members of a definable group represented in the photograph. A definable group includes, but is not limited to, the following examples: a crowd at any sporting event, a crowd in any street or public building, the audience at any theatrical or stage production, a glee club, or a baseball team.

(3)A person or persons shall be considered to be represented as members of a definable group if they are represented in the photograph solely as a result of being present at the time the photograph was taken and have not been singled out as individuals in any manner.

(c)Where a photograph or likeness of an employee of the person using the photograph or likeness appearing in the advertisement or other publication prepared by or in behalf of the user is only incidental, and not essential, to the purpose of the publication in which it appears, there shall arise a rebuttable presumption affecting the burden of producing evidence that the failure to obtain the consent of the employee was not a knowing use of the employee’s photograph or likeness.

(d)For purposes of this section, a use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subdivision (a).

(e)The use of a name, voice, signature, photograph, or likeness in a commercial medium shall not constitute a use for which consent is required under subdivision (a) solely because the material containing such use is commercially sponsored or contains paid advertising. Rather it shall be a question of fact whether or not the use of the person’s name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required under subdivision (a).

(f)This section shall not apply to the owners or employees of any medium used for advertising, including, but not limited to, newspapers, magazines, radio and television networks and stations, cable television systems, billboards, and transit ads, by whom any advertisement or solicitation in violation of this section is published or disseminated, unless it is established that the owners or employees had knowledge of the unauthorized use of the person’s name, voice, signature, photograph, or likeness as prohibited by this section.

(g)The remedies provided for in this section are cumulative and shall be in addition to any others provided for by law.

SEC. 3.Section 3344.2 is added to the Civil Code, to read:

3344.2.

(a)As used in this section:

(1)“Commercial sexual exploitation” has the same meaning as defined in Section 3345.1.

(2)“Social media platform” has the same meaning as defined in Section 22675 of the Business and Professions Code.

(b)(1)A minor victim of commercial sexual exploitation who disaffirms a contract pursuant to Section 6710 of the Family Code with a social media platform may submit a request pursuant to subdivision (c) that the social media platform permanently block from being viewable on the social media platform specific photographs or videos, or versions or reproductions in which the minor victim is readily identifiable, as described in subdivision (b) of Section 3344, depicting the minor that are related to the minor victim’s commercial sexual exploitation.

(2)A social media platform shall comply with a request made pursuant to this subdivision within 30 days of receipt of the request.

(c)(1)A social media platform shall prominently display on the landing page of the social media platform first visible when accessing the platform an email address for the purpose of allowing minors to make requests pursuant to subdivision (b).

(2)A social media platform shall clearly indicate that the email address required by this subdivision is for minors who want to make requests pursuant to subdivision (b).

(d)In addition to any other remedy at law, a social media platform that violates this section shall be liable for both of the following:

(1)Reasonable attorney’s fees and costs.

(2)(A)A civil penalty of up to two hundred fifty thousand dollars ($250,000) per violation.

(B)In determining the amount of a civil penalty pursuant to this paragraph, a court shall consider the willfulness and severity of the violation and whether the social media platform has previously violated this section or Section 3344.3.

SEC. 4.Section 3344.3 is added to the Civil Code, to read:

3344.3.

(a)As used in this section:

(1)“Commercial sexual exploitation” has the same meaning as defined in Section 3345.1.

(2)“Person” means a natural person who is at least 18 years of age.

(3)“Social media platform” has the same meaning as defined in Section 22675 of the Business and Professions Code.

(b)(1)A person who was a victim of commercial sexual exploitation may submit a request pursuant to subdivision (c) that the social media platform permanently block from being viewable on the social media platform specific photographs or videos, or versions or reproductions in which the person is readily identifiable, as described in subdivision (b) of Section 3344, depicting the person that are related to the person’s commercial sexual exploitation.

(2)A social media platform shall comply with a request made pursuant to this subdivision within 30 days of receipt of the request.

(c)(1)A social media platform shall prominently display on the landing page of the social media platform first visible when accessing the platform an email address for the purpose of allowing a person to make requests pursuant to subdivision (b).

(2)A social media platform shall clearly indicate that the email address required by this subdivision is for a person who wants to make a request pursuant to subdivision (b).

(d)In addition to any other remedy at law, a social media platform that violates this section shall be liable for both of the following:

(1)Reasonable attorney’s fees and costs.

(2)(A)A civil penalty of up to two hundred fifty thousand dollars ($250,000) per violation.

(B)In determining the amount of a civil penalty pursuant to this paragraph, a court shall consider the willfulness and severity of the violation and whether the social media platform has previously violated this section or Section 3344.2.

SEC. 2.

 Title 21 (commencing with Section 3273.60) is added to Part 4 of Division 3 of the Civil Code, to read:

TITLE 21. Child Sexual Abuse Material Hosted on a Social Media Platform

3273.60.

 As used in this title:

(a) “Child pornography” has the same meaning as defined in Section 2256 of Title 18 of the United States Code, as amended from time to time.

(b) “Child sexual abuse material” means either of the following:

(1) Child pornography.

(2) Obscene matter that depicts a minor personally engaging in, or personally simulating, sexual conduct.

(c) “Identifiable minor” has the same meaning as defined in Section 2256 of Title 18 of the United States Code, as amended from time to time.

(d) “Minor” has the same meaning as defined in Section 2256 of Title 18 of the United States Code, as amended from time to time.

(e) “Obscene matter” has the same meaning as defined in Section 311 of the Penal Code.

(f) “Reporting user” means a natural person who reports material to a social media platform using the means provided by the social media platform pursuant to Section 3273.61.

(g) “Social media company” has the same meaning as defined in Section 22675 of the Business and Professions Code.

(h) (1) “Social media platform” has, except as provided in paragraph (2), the same meaning as defined in Section 22675 of the Business and Professions Code.

(2) “Social media platform” does not include a standalone direct messaging service that provides end-to-end encrypted communication.

3273.61.

 A social media platform shall do all of the following:

(a) Provide, in a form that is reasonably accessible to users, a means for a user who is a California resident to report material to the social media platform that the user reasonably believes meets all of the following criteria:

(1) The reported material is child sexual abuse material.

(2) The reporting user is an identifiable minor depicted in the reported material.

(3) The reported material is displayed, stored, or hosted on the social media platform.

(b) Collect information reasonably sufficient to enable the social media platform to contact, pursuant to subdivision (c), a reporting user.

(c) A social media platform shall contact a reporting user in writing by a method, including, but not limited to, a mailing address, a telephone number for purposes of sending text messages, or an email address, that meets both of the following criteria:

(1) The method is chosen by the reporting user.

(2) The method is not a method that is within the control of the social media company that owns or operates the social media platform.

(d) Permanently block the reported material from being viewable on the social media platform if the reported material meets both of the following criteria:

(1) The reported material is child sexual abuse material.

(2) The reported material is displayed, stored, or hosted on the social media platform.

(e) Provide written confirmation to a reporting user that the social media platform received that person’s report that meets all of the following criteria:

(1) The written confirmation is provided to the reporting user within 24 hours of when the material was first reported.

(2) The written confirmation is provided using the information collected from the reporting user under subdivision (b).

(3) The written confirmation informs the reporting user of the schedule of regular written updates that the social media platform is required to make under subdivision (f).

(f) (1) Provide a written update to the reporting user as to the status of the social media platform’s handling of the reported material using the information collected from the reporting user under subdivision (b).

(2) The written update required by this subdivision shall be provided seven days after the date on which the written confirmation required under subdivision (e) was provided and every seven days thereafter until the final written determination required by subdivision (g) is provided.

(g) Issue a final written determination to the reporting user, using the information collected from the reporting user under subdivision (b), stating one of the following:

(1) The reported material has been determined to be child sexual abuse material that was displayed, stored, or hosted on the social media platform and has been blocked on the social media platform.

(2) The reported material has been determined not to be child sexual abuse material.

(3) The reported material has been determined not to be displayed, stored, or hosted on the social media platform.

(h) (1) Except as provided in paragraph (2), comply with subdivisions (c) to (g), inclusive, no later than 30 days after the date on which material was first reported pursuant to this section.

(2) (A) If the social media platform cannot comply with subdivisions (c) to (g), inclusive, due to circumstances beyond the reasonable control of the social media platform, the social media platform shall comply with subdivisions (c) to (g), inclusive, no later than 60 days after the date on which material was first reported pursuant to this section.

(B) If this paragraph applies, the social media platform shall promptly provide written notice of the delay, no later than 48 hours from the time the social media platform knew the delay was likely to occur, to the reporting user using the information collected from the reporting user under subdivision (b).

3273.62.

 (a) A social media company that fails to comply with the requirements of this title shall be liable to a reporting user for all of the following:

(1) Any actual damages sustained by the reporting user as a result of the violation.

(2) (A) Statutory damages of no more than two hundred fifty thousand dollars ($250,000) per violation.

(B) In determining the amount of statutory damages pursuant to this paragraph, a court shall consider the willfulness and severity of the violation and whether the social media platform has previously violated this title.

(3) Costs of the action, together with reasonable attorney’s fees, as determined by the court.

(4) Any other relief that the court deems proper.

(b) The failure of a social media platform to comply with subdivisions (c) to (g), inclusive, of Section 3273.61 within 60 days after the date on which material was first reported pursuant to Section 3273.61 shall establish a rebuttable presumption that the reporting user is entitled to statutory damages under this section.

(c) This title shall not be construed to limit or impair in any way a cause of action under paragraph (1) of Section 1710.

3273.63.

 A waiver of the provisions of this title is contrary to public policy and is void and unenforceable.

3273.64.

 The provisions of this title are severable. If any provision of this title 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.

SEC. 5.SEC. 3.

 Section 3345.1 of the Civil Code is amended to read:

3345.1.

 (a) This section shall apply only in a civil action brought by, or on behalf of, or for the benefit of, a person who is a minor or nonminor dependent and is a victim of commercial sexual exploitation committed by a person who is over 18 years of age or facilitated, aided, or abetted by a social media platform in violation of subdivision (g). For purposes of this section, the age of the victim, the status of the victim as a minor or nonminor dependent, and the age of the defendant is determined at the time of the defendant’s act of commercial sexual exploitation of the victim.

(b) In a civil action brought by, on behalf of, or for the benefit of a minor, or nonminor dependent, against a person who engaged in any act of commercial sexual exploitation of a minor or nonminor dependent, whenever a trier of fact is authorized by a statute, other than subdivision (c), to impose either a fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter, and the amount of the fine, penalty, or other remedy is subject to the trier of fact’s discretion, the trier of fact shall consider all of the following factors, in addition to other appropriate factors, in determining the amount of fine, civil penalty, or other penalty, or other remedy to impose. If the trier of fact makes an affirmative finding in regard to one or more of the following factors, it may impose a fine, civil penalty, or other penalty, or other remedy in an amount up to three times greater than authorized by the statute, or, if the statute does not authorize a specific amount, up to three times greater than the amount the trier of fact would impose in the absence of that affirmative finding:

(1) Whether the defendant’s conduct was directed to more than one minor or nonminor dependent.

(2) Whether one or more minors or nonminor dependents suffered substantial physical, emotional, or economic damage resulting from the defendant’s conduct.

(3) Whether the defendant knew or reasonably should have known that the victim was a minor or nonminor dependent. It shall not be a defense to imposition of fines, penalties, or other remedies pursuant to this paragraph that the defendant was unaware of the victim’s age or status as a nonminor dependent at the time of the act.

(c) If the trier of fact is not authorized by statute to impose a civil penalty in an action described in subdivision (b), the court may award a civil penalty not exceeding fifty thousand dollars ($50,000), and not less than ten thousand dollars ($10,000), for each act of commercial sexual exploitation committed by the defendant upon making an affirmative finding in regard to one or more of the factors set forth in paragraphs (1) to (3), inclusive, of subdivision (b). This penalty may be imposed in addition to any other remedy available in law or in equity.

(d) Any penalty imposed pursuant to this section shall be paid to the victim of the act of sexual exploitation.

(e) It shall not be a defense to the imposition of fines or penalties pursuant to this section that the victim consented to the act of commercial sexual exploitation.

(f) If the victim is under 18 years of age, the court, in its discretion, may order that any penalty imposed pursuant to this section be held in trust for the victim and used exclusively for the benefit and well-being of the victim. When the victim reaches 18 years of age or is emancipated, the trust shall expire and any unspent remainder shall be the sole property of the victim.

(g) (1) A social media platform shall not knowingly, recklessly, or negligently facilitate, aid, or abet commercial sexual exploitation.

(2) For violation of this subdivision, a court shall award a civil penalty statutory damages not exceeding five million dollars ($5,000,000) and not less than one million dollars ($1,000,000) for each act of commercial sexual exploitation facilitated, aided, or abetted by the social media platform.

(3) As used in this subdivision, “facilitate, aid, or abet” includes, but is not limited to, being directly involved in, or actively participating in, the development, deployment, or enforcement of means to deploy a system, design, feature, or affordance that the social media platform knows, or should know, foreseeably causes child is a substantial factor in causing minor users to be victims of commercial sexual exploitation.

(h) As used in this section:

(1) “Commercial sexual exploitation” means an act committed for the purpose of obtaining property, money, or anything else of value in exchange for, or as a result of, a sexual act of a minor or nonminor dependent, including, but not limited to, an act that would constitute a violation of any of the following:

(A) Sex trafficking of a minor in violation of subdivision (c) of Section 236.1 of the Penal Code.

(B) Pimping of a minor in violation of Section 266h of the Penal Code.

(C) Pandering of a minor in violation of subdivision (b) of Section 266i of the Penal Code.

(D) Procurement of a child under 16 years of age for lewd and lascivious acts in violation of Section 266j of the Penal Code.

(E) Solicitation of a child for a purpose that is either in violation of subparagraph (A) or pursuant to paragraph (3) of subdivision (b) of Section 647 of the Penal Code.

(F) An act of sexual exploitation described in subdivision (c) or (d) of Section 11165.1 of the Penal Code.

(2) “Nonminor dependent” has the same meaning as in subdivision (v) of Section 11400 of the Welfare and Institutions Code.

(3) (A) “Social media platform” has has, except as provided in subparagraph (B), the same meaning as defined in Section 22675 of the Business and Professions Code.

(B) “Social media platform” does not include a standalone direct messaging service that provides end-to-end encrypted communication.

(i) A waiver of the provisions of this section is contrary to public policy and is void and unenforceable.

SEC. 6.SEC. 4.

 The provisions of this act are severable. If any provision of this act 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.