Bill Text: CA AB602 | 2019-2020 | Regular Session | Amended

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

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Bill Title: Depiction of individual using digital or electronic technology: sexually explicit material: cause of action.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Passed) 2019-10-03 - Chaptered by Secretary of State - Chapter 491, Statutes of 2019. [AB602 Detail]

Download: California-2019-AB602-Amended.html

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Amended  IN  Senate  June 28, 2019

Amended  IN  Assembly  May 02, 2019

Amended  IN  Assembly  March 28, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill

No. 602

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Introduced by Assembly Member Berman

February 14, 2019

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An act to amend Section 1708.85 of the Civil Code, relating to privacy. An act to add Section 1708.86 to the Civil Code, relating to privacy.

LEGISLATIVE COUNSEL'S DIGEST

AB 602, as amended, Berman. Invasion of privacy: distribution of sexually explicit material. Depiction of individual using digital or electronic technology: sexually explicit material: cause of action.

Existing law creates a private right of action against a person who intentionally distributes a photograph or recorded image of another that exposes the intimate body parts of that person or of a person engaged in a sexual act without the person’s consent if specified conditions are met.

This bill would provide that a depicted individual, as defined, who suffers harm resulting from the intentional disclosure of sexually explicit material without their consent has a cause of action against a person who creates and discloses the sexually explicit material if the person knew or reasonably should have known the depicted individual did not consent, and against a person who discloses, but does not create, the sexually explicit material if the person knew the depicted individual did not consent. The bill would exclude from liability the disclosure of sexually explicit material under specified circumstances, and would establish procedures and requirements for bringing a cause of action under these provisions, including provisions on damages, the use of a pseudonym in pleadings, and requiring an action to be brought within a specified time.

Existing law creates a private right of action against a person who intentionally distributes a photograph, film, videotape, recording, or other reproduction of another that exposes the intimate body parts, as defined, of that person or shows that person engaged in specified sexual acts, without that person’s consent, knowing that the other person had a reasonable expectation that the material would remain private, if specified conditions are met.

Existing law allows specified persons to assert a cause of action for wrongful death.

This bill would expand the private right of action discussed above to include a case where the apparent subject of the distributed material is falsely depicted to be the subject as the result of manipulation, editing, or other alteration of the material if a reasonable person would believe that the altered material is authentic. The bill would further authorize a person who could assert a wrongful death action to assert a claim under the provisions discussed above and would make conforming and nonsubstantive changes.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 Section 1708.86 is added to the Civil Code, to read:

1708.86.

 (a) For purposes of this section:

(1) “Authorized Representative” means an attorney, talent agent, or personal manager authorized to represent a depicted individual or, if the depicted individual does not have an attorney, talent agent, or personal manager, a labor union representing performers in audiovisual works.

(2) (A) “Consent” means an agreement written in plain language signed knowingly and voluntarily by the depicted individual that includes a description of the sexually explicit material and the audiovisual work in which it will be incorporated.

(B) A depicted individual may rescind consent by delivering written notice within three business days from the date consent was given to the person in whose favor consent was made unless one of the following requirements is satisfied:

(i) The depicted individual is given at least 72 hours to review the terms of the agreement before signing it.

(ii) The depicted individual’s authorized representative provides written approval of the signed agreement.

(3) “Depicted individual” means an individual depicted in a realistic digitized performance in which the individual did not actually perform. For purposes of this paragraph, “digitized” includes depicting the nude body parts of another human being as being those of the individual or imposing digitally created nude body parts onto the individual.

(4) “Disclose” means to transfer, publish, make available, or distribute.

(5) “Harm” includes, but is not limited to, economic harm or emotional distress.

(6) “Individual” means a natural person.

(7) “Nude” means visible genitals, pubic area, anus, or a female’s postpubescent nipple or areola.

(8) “Person” means a human being or legal entity.

(9) “Sexual conduct” means any of the following:

(A) Masturbation.

(B) Sexual intercourse, including genital, oral, or anal, whether between persons regardless of sex or gender or between humans and animals.

(C) Sexual penetration of the mouth, vagina, or rectum by, or with, an object.

(D) The transfer of semen onto the depicted individual.

(E) Sadomasochistic abuse involving the depicted individual.

(10) “Sexually explicit material” means any portion of an audiovisual work that shows the depicted individual performing in the nude or appearing to engage in, or being subjected to, sexual conduct.

(b) A depicted individual who has suffered harm resulting from the intentional disclosure of sexually explicit material without the depicted individual’s consent has a cause of action against a person who does either of the following:

(1) The person creates and discloses sexually explicit material in an audiovisual work and the person knew or reasonably should have known the depicted individual did not consent.

(2) The person discloses, but did not create, sexually explicit material in an audiovisual work and the person knew the depicted individual did not consent.

(c) (1) A person is not liable under this section if the person proves any of the following:

(A) The person disclosed the sexually explicit material in the course of reporting unlawful activity, in the course of a legal proceeding, or the person is a member of law enforcement and disclosed the sexually explicit material in the course of exercising the person’s law enforcement duties.

(B) The person disclosed the sexually explicit material in relation to a matter of legitimate public concern.

(C) The person disclosed the sexually explicit material in a work of political or newsworthy value, or similar work.

(D) The person disclosed the sexually explicit material for the purposes of commentary or criticism or the disclosure is otherwise protected by the California Constitution or the United States Constitution.

(2) For purposes of this subdivision, sexually explicit material is not of newsworthy value because the depicted individual is a public figure.

(d) It shall not be a defense to an action under this section that there is a disclaimer included in the sexually explicit material that communicates that the inclusion of the depicted individual in the sexually explicit material was unauthorized or that the depicted individual did not participate in the creation or development of the material.

(e) (1) A prevailing plaintiff may recover any of the following:

(A) Economic and noneconomic damages proximately caused by the disclosure of the sexually explicit material, including damages for emotional distress.

(B) An amount equal to the monetary gain made by the defendant from the creation, development, or disclosure of the sexually explicit material, or the plaintiff may, at any time before the final judgment is rendered, recover instead an award of statutory damages for all unauthorized acts involved in the action, with respect to any one work, in a sum not less than five thousand dollars ($5,000) or more than five hundred thousand dollars ($500,000).

(C) Punitive damages.

(D) Reasonable attorney’s fees and costs.

(E) Any other available relief, including injunctive relief.

(2) This act does not affect any right or remedy available under any other law.

(f) An action under this section shall be brought no later than three years from the date the unauthorized creation, development, or disclosure was discovered or should have been discovered with the exercise of reasonable diligence.

(g) (1) A plaintiff 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 the plaintiff 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.

(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.

SECTION 1.Section 1708.85 of the Civil Code is amended to read:

1708.85.

(a)A private cause of action for general or special damages, as defined in Section 48a, lies against a person who intentionally distributes by any means a photograph, film, videotape, recording, or other reproduction of another person, without that person’s consent, that 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 in either of the following circumstances:

(1)(A)Except in a cause of action brought pursuant to subdivision (k), the subject of the photograph, film, videotape, recording, or other reproduction is the plaintiff.

(B)The distribution was made without the subject’s consent.

(C)The person who distributed the material knew, or should have known, that the subject of the material had a reasonable expectation that the material would remain private.

(2)(A)The apparent subject of the photograph, film, videotape, recording, or other reproduction is falsely depicted to be the subject of the material as the result of subsequent manipulation, editing, or other alteration of the material.

(B)A reasonable person would believe that the altered photograph, film, videotape, recording, or other reproduction, based upon its context and content, is authentic.

(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 subject of the material for its public use and distribution or otherwise intended by the subject for public use and distribution.

(2)The person possessing or viewing the distributed material has permission from the subject of the material to distribute the material by any means or post the material on an internet website.

(3)The subject of 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 referred to in paragraph (1) of subdivision (a) was photographed, filmed, videotaped, recorded, or otherwise reproduced in a public place and under circumstances in which the subject of the material had no reasonable expectation of privacy.

(6)The distributed material was previously distributed by another person.

(7)The distributed material referred to in paragraph (2) of subdivision (a) is satire or parody.

(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).

(k)A person who may assert a cause of action under Section 377.60 of the Code of Civil Procedure may also assert a cause of action under this section.