Bill Text: CA AB514 | 2021-2022 | Regular Session | Chaptered
Bill Title: Injunctions: undertakings: civil actions: distribution of sexually explicit materials.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2021-10-05 - Chaptered by Secretary of State - Chapter 518, Statutes of 2021. [AB514 Detail]
Download: California-2021-AB514-Chaptered.html
Assembly Bill
No. 514
CHAPTER 518
An act to amend Section 1708.85 of the Civil Code, and to amend Section 529 of the Code of Civil Procedure, relating to civil law.
[
Approved by
Governor
October 05, 2021.
Filed with
Secretary of State
October 05, 2021.
]
LEGISLATIVE COUNSEL'S DIGEST
AB 514, Ward.
Injunctions: undertakings: civil actions: distribution of sexually explicit materials.
Existing law requires a court or judge, on granting an injunction, to require an undertaking on the part of the applicant sufficient to cover certain damages the party enjoined may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction. Existing law exempts from the undertaking requirement certain persons seeking an injunction, as specified.
Existing law creates a private right of action against a person who intentionally distributes a photograph or recorded image of another, without the other person’s consent, if certain conditions are met, including if the person who distributed the material knows that the other person had a reasonable expectation that the material would remain private, and if the material exposes the intimate body parts, as defined, of the other person or
shows that person engaged in specified sexual acts. Existing law authorizes a court to grant equitable relief to a plaintiff in a civil proceeding pursuant to these provisions, including a preliminary injunction or a permanent injunction ordering the defendant to cease distribution of material.
This bill would exempt from the undertaking requirement an applicant seeking an injunction ordering the defendant to cease distribution of material under these provisions. The bill would instead create the private right of action described above against a person who knew, or reasonably should have known, that the other person had a reasonable expectation that the material would remain private.
Existing law provides an exception to liability for the cause of action described above in certain circumstances, including that the
distributed material was previously distributed by another person.
This bill would instead provide an exception to liability for the cause of action described above if the material was previously distributed by another person, unless the plaintiff served on the defendant, by certified mail, a notice to cease distribution of the material, and the defendant failed to cease distribution within 20 days of receiving the notice.
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.
Section 1708.85 of the Civil Code is amended to read: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, or reasonably should have known, 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 website.
(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, unless the plaintiff
served on the defendant, by certified mail, a notice to cease distribution of the material, and the defendant failed to cease distribution within 20 days of receiving the notice.
(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 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) In cases where a plaintiff proceeds using a pseudonym under this section, the following
provisions shall apply:
(A) All other parties and their agents and attorneys shall use this pseudonym in all pleadings, discovery documents, and other documents filed or served in the action, and at hearings, trial, and other court proceedings that are open to the public.
(B) (i) Any party filing a pleading, discovery document, or other document in the action shall exclude or redact any identifying characteristics of the plaintiff from the pleading, discovery document, or other document, except for a confidential information form filed pursuant to this subdivision.
(ii) A party excluding or redacting identifying characteristics as provided in this section shall file with the court and serve upon all other
parties a confidential information form 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.
(C) All court decisions, orders, petitions, discovery documents, and other documents shall be worded so as to protect the name or other identifying characteristics of the plaintiff from public revelation.
(3) The following definitions apply to this subdivision:
(A) “Identifying characteristics” means 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, telephone number,
email address, social media profiles, online identifiers, contact information, or any other information, including images of the plaintiff, from which the plaintiff’s identity can be discerned.
(B) “Online identifiers” means any personally identifying
information or signifiers that would tie an individual to a particular electronic service, device, or Internet application, website, or platform account, including, but not limited to, access names, access codes, account names, aliases, avatars, credentials, gamer tags, display names, handles, login names, member names, online identities, pseudonyms, screen names, user accounts, user identifications, usernames, Uniform Resource Locators (URLs), domain names, Internet Protocol (IP) addresses, and media access control (MAC) addresses.
(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.
(5) Upon request of the plaintiff, the clerk shall allow access to the court file in an action filed under this section only as follows:
(A) To a party to the action, including a party’s attorney.
(B) To a person by order of the court on a showing of good cause for access.
(C) To any person 60 days after judgment is entered unless the court grants a plaintiff’s motion to seal records pursuant to Chapter 3 of Division 4 of Title 2 of the California Rules of Court.
(g) In an action pursuant to this section, the plaintiff shall state in the caption of the complaint “ACTION BASED ON CIVIL CODE
SECTION 1708.85.”
(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) The Judicial Council shall, on or before January 1, 2019, adopt or revise as appropriate rules and forms in order to implement subdivision
(f).
SEC. 2.
Section 529 of the Code of Civil Procedure is amended to read:529.
(a) On granting an injunction, the court or judge must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction. Within five days after the service of the injunction, the person enjoined may object to the undertaking. If the court determines that the applicant’s undertaking is insufficient and a sufficient undertaking is not filed within the time required by statute, the order granting the injunction must be dissolved.(b) This section does not apply to any of the following persons:
(1) Either spouse against the other in a proceeding for legal separation or dissolution of marriage.
(2) The applicant for an order described in Division 10 (commencing with Section 6200) of the Family Code.
(3) A public entity or officer described in Section 995.220.
(4) An applicant requesting an injunction under subdivision (d) of Section 1708.85 of the Civil Code.
