Bill Text: CA AB2643 | 2013-2014 | Regular Session | Amended

California Assembly Bill 2643 (Prior Session Legislation)

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

Bill Title: Invasion of privacy: distribution of sexually explicit materials.

Spectrum: Bipartisan Bill

Status: (Passed) 2014-09-30 - Chaptered by Secretary of State - Chapter 859, Statutes of 2014. [AB2643 Detail]

Download: California-2013-AB2643-Amended.html

BILL NUMBER: AB 2643	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 9, 2014

INTRODUCED BY   Assembly Member Wieckowski

                        FEBRUARY 21, 2014

   An act to add Section 48.95 to the Civil Code, relating to
privacy.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 2643, as amended, Wieckowski. Invasion of privacy: distribution
of sexually explicit materials.
   Existing law makes it a crime for a person to distribute, with the
intent to cause serious emotional distress, a photograph or recorded
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, if the depicted person
subsequently suffers serious emotional distress.
   This bill would create a private right of action against a person
who intentionally or recklessly distributes a photograph or recorded
image of another that exposes the intimate body parts  , as
defined,  of that person or him or her engaged in a sexual act,
without his or her consent, if specified conditions are met 
, including that the person depicted suffer emotional distress
 . The bill would establish affirmative defenses to that
cause of action, including waiver or consent of the person appearing
in the material. In a civil proceeding pursuant to these provisions,
the bill would also authorize equitable relief, as specified, and
 substituting   a plaintiff to proceed using
 a pseudonym  for the   instead of his or
her  true name  of the plaintiff  .  The
bill would require a plaintiff using a pseudonym in a civil
proceeding under these provisions to   file a confidential
information form, as specified.   The bill would make these
provisions operative July 1, 2015.  
   This bill would further require the Judicial Council to develop
that confidential information form by July 1, 2015. 
   Vote: majority. Appropriation: no. Fiscal committee:  no
  yes  . State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 48.95 is added to the Civil Code, to read:
   48.95.  (a) 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  all of the following
are met:   the distributed material exposes an intimate
body part of the othe   r person, or shows the other person
engaging in an act of sexual penetration or other sexual act. 

   (1) The distributed material exposes an intimate body part of the
other person, or shows the other person engaging in an act of sexual
penetration or other sexual act.  
   (2) The distribution of the material causes emotional distress to
the other person.  
   (b) As used in this section, "intimate body part" means 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. 

   (b) 
    (c)  There shall be no liability on the part of the
person distributing material under subdivision (a) under any of the
following circumstances:
   (1) 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.
   (2) The person possessing or viewing the distributed material has
permission from the person appearing in the material to 
possess or view   publish or post  the material.
   (3) The person appearing in the material waived any expectation of
privacy in the distributed material by  distributing it to a
substantial number of persons     making 
 it accessible to the general public  .
   (4) The distributed material constitutes a matter of public
concern. 
   (c) 
    (   d)  In addition to any other relief, the
court may order equitable relief against the person violating
subdivision (a), including a temporary restraining order, or a
preliminary injunction or a permanent injunction ordering the
defendant to remove the distributed material. The court may grant
injunctive relief substituting a pseudonym for the true name of the
plaintiff pursuant to subdivision (d). The court may also grant,
after holding a properly noticed hearing, reasonable attorneys fees
and costs to the prevailing party. 
   (d) 
    (e)  (1)  In   A plaintiff in 
a civil proceeding pursuant to subdivision (a),  the court
shall substitute   may proceed using  a pseudonym
, either John Doe, Jane Doe, or Doe,  for the true name of
the  plaintiff. The actual name and   plaintiff
and may exclude or redact from all pleadings and documents filed in
the action  other identifying characteristics of the plaintiff
 shall be revealed to the court only in camera, and the court
shall seal that information from further revelation, except to
defense counsel as part of discovery   . A plaintiff who
  proceeds using a pseudonym and excluding or redacting
identifying characteristics as provided in this section shall file a
confidential information form for this purpose that includes the
plaintiff's name and other identifying characteristics excluded or
redacted. The court shall keep the plaintiff's name and excluded or
redacted characteristics confidential. Nothing in this section
restricts the defendant's right to discovery from the plaintiff of
information contained in the confidential information form  .
   (2) All court decisions, orders, petitions, and other documents,
including motions and papers filed by the parties, shall be worded so
as to protect the name or other identifying characteristics of the
plaintiff from public revelation.
   (3) Unless the plaintiff requests otherwise  , the court
shall, at the first opportunity, issue an order that  
and the court so orders,  the parties, their counsel and other
agents,  court staff, and all other persons subject
to the jurisdiction of the court shall make no public revelation of
the name or any other identifying characteristics of the plaintiff.
   (4) As used in this subdivision, "identifying characteristics"
includes, but is 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. 
   (5) The responsibility for excluding or redacting the name or
identifying characteristics of the plaintiff from all documents filed
with the court rests solely with the parties and their attorneys.
Nothing in this section requires the court to review pleadings or
other papers for compliance with this provision.  
   (f) In an action pursuant to this section, the plaintiff shall
state in the caption of the complaint "ACTION BASED ON CIVIL CODE
SECTION 48.95."  
   (g) Nothing in this section shall be construed to alter or negate
any rights, obligations, or immunities of an interactive service
provider under Section 230 of Title 47 of the United States Code.
Nothing in this section shall be construed to limit or preclude a
plaintiff from securing or recovering any other available remedy.
 
   (h) The provisions of this section are severable. If any provision
of this section 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.  
   (i) This section shall become operative on July 1, 2015. 
   SEC. 2.    The Judicial Council shall, by July 1,
2015, develop the confidential information form specified in
subdivision (e) of Section 48.95 of the Civil Code.