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

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

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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

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BILL NUMBER: AB 2643	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 24, 2014
	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  
specified  sexual  act,   acts, 
without his or her consent, if specified conditions are met. 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 a plaintiff to
proceed using a pseudonym instead of his or her true name. 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: 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 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
  intercourse, oral copulation, sodomy, or other act of
sexual penetration  .
   (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.
   (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 publish or
post the material.
   (3) The person appearing in the material waived any expectation of
privacy in the distributed material by making it accessible to the
general public.
   (4) The distributed material constitutes a matter of public
concern. 
   (5) 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. 
   (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   attorney's
 fees and costs to the prevailing party.
   (e) (1) A plaintiff in a civil proceeding pursuant to subdivision
(a), may proceed using a pseudonym, either John Doe, Jane Doe, or
Doe, for the true name of the plaintiff and may exclude or redact
from all pleadings and documents filed in the action other
identifying characteristics of the plaintiff. 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 and the court so
orders, the parties, their counsel and other agents, 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.