BILL NUMBER: AB 2643 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 6, 2014
AMENDED IN SENATE JUNE 24, 2014
AMENDED IN SENATE JUNE 9, 2014
AMENDED IN ASSEMBLY APRIL 24, 2014
AMENDED IN ASSEMBLY APRIL 9, 2014
INTRODUCED BY Assembly Member Wieckowski
( Coauthor: Senator Cannella
)
FEBRUARY 21, 2014
An act to add Section 1708.9 1708.85
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 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 specified sexual acts, without his or
her consent, knowing that the other person had a reasonable
expectation that the material would remain private, 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 1708.9 1708.85 is
added to the Civil Code, to read:
1708.9. 1708.85. (a) 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 the other's consent, if (1) the
person knew that the other person had a reasonable expectation that
the material would remain private, (2) the distributed material
exposes an intimate body part of the other person, or shows the other
person engaging in an act of intercourse, oral copulation, sodomy,
or other act of sexual penetration, and (3) the other person suffers
general or special damages as described in Section 48a.
(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 by
any means or post the material on an Internet Web site.
(3) The person appearing in the material waived any reasonable
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.
(6) The distributed material was previously distributed by another
person.
(d) In addition to any other relief available at law, 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 cease
distribution of material. The court may grant injunctive relief
maintaining the confidentiality of a plantiff
plaintiff using a pseudonym as provided in subdivision (f).
(e) The court may also grant, after holding a properly noticed
hearing, reasonable attorney's fees and costs to the prevailing
plaintiff.
(f) (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 with the court
and serve upon the defendant 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.
(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) 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.
(4) 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.
(g) In an action pursuant to this section, the plaintiff shall
state in the caption of the complaint "ACTION BASED ON CIVIL CODE
SECTION 1708.9." 1708.85."
(h) 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.
(i) 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.
(j) 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 (f) of Section
1708.9 1708.85 of the Civil Code.