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

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 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

                        FEBRUARY 21, 2014

   An act to add Section 1708.9 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,  and knew   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 is added to the Civil Code, to read:
   1708.9.  (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 substituting a pseudonym for the true name of the plaintiff
pursuant to subdivision (e).   The court may grant
injunctive relief maintaining the confidentiality of a plantiff 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
 party   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) Counsel for all parties shall comport their conduct with Rule
5-120 of the California State Bar Rule of Professional Conduct and
counsel and all parties shall comply with any lawful order of the
court.  
   (4) 
    (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. 
   (5) 
    (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."
   (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 of the Civil Code.