Bill Text: CA AB1394 | 2023-2024 | Regular Session | Amended
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
Amended
IN
Assembly
April 10, 2023 |
Introduced by Assembly Member Wicks |
February 17, 2023 |
LEGISLATIVE COUNSEL'S DIGEST
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.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: NO Local Program: NOBill Text
The people of the State of California do enact as follows:
SECTION 1.
The Legislature finds and declares all of the following:(5)
(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.
(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.
(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.