Bill Text: MS SB2391 | 2024 | Regular Session | Comm Sub
Bill Title: Uniform Civil Remedies for Unauthorized Disclosure of Intimate Images Act; enact.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Failed) 2024-03-14 - Died On Calendar [SB2391 Detail]
Download: Mississippi-2024-SB2391-Comm_Sub.html
MISSISSIPPI LEGISLATURE
2024 Regular Session
To: Judiciary, Division A
By: Senator(s) Wiggins, Thompson
Senate Bill 2391
(COMMITTEE SUBSTITUTE)
AN ACT TO ENACT THE UNIFORM CIVIL REMEDIES FOR UNAUTHORIZED DISCLOSURE OF INTIMATE IMAGES ACT; TO DEFINE TERMS; TO CREATE A CIVIL CAUSE OF ACTION; TO PROVIDE THAT A DEPICTED INDIVIDUAL SUFFERS HARM FROM A PERSON'S INTENTIONAL DISCLOSURE OR THREATENED DISCLOSURE OF AN INTIMATE IMAGE HAS A CAUSE OF ACTION AGAINST THE PERSON IF THE DEPICTED INDIVIDUAL DID NOT CONSENT TO THE DISCLOSURE, THE INTIMATE IMAGE WAS PRIVATE, AND THE DEPICTED INDIVIDUAL WAS IDENTIFIABLE; TO PROVIDE CERTAIN EXCEPTIONS TO CIVIL LIABILITY; TO PROVIDE CERTAIN PRIVACY PROTECTIONS FOR A PLAINTIFF FILING A CAUSE OF ACTION AUTHORIZED BY THIS ACT; TO PROVIDE THAT A PLAINTIFF SHALL BE ENTITLED TO (1) THE GREATER OF ECONOMIC AND NONECONOMIC DAMAGES OR STATUTORY DAMAGES NOT TO EXCEED A CERTAIN SUM, (2) AN AMOUNT EQUAL TO ANY MONETARY GAIN MADE BY THE DEFENDANT FROM DISCLOSURE OF THE INTIMATE IMAGE, AND (3) PUNITIVE DAMAGES UNDER SECTION 11-1-65; TO AUTHORIZE THE AWARD OF ATTORNEY'S FEES TO A PREVAILING PLAINTIFF UNDER THIS ACT; TO PRESCRIBE A PERIOD OF LIMITATION FOR THE CAUSE OF ACTION AUTHORIZED IN THIS ACT; TO PROVIDE THAT THIS ACT MUST BE CONSTRUED CONSISTENTLY WITH CERTAIN FEDERAL LAW; TO PROVIDE THAT IN APPLYING AND CONSTRUING THIS UNIFORM ACT, CONSIDERATION MUST BE GIVEN TO THE NEED TO PROMOTE UNIFORMITY OF THE LAW WITH RESPECT TO ITS SUBJECT MATTER AMONG STATES THAT ENACT IT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Short title. This act shall be known as and may be cited as the "Uniform Civil Remedies for Unauthorized Disclosure of Intimate Images Act."
SECTION 2. Definitions. As used in this act, the following words shall have the meaning herein ascribed:
(a) "Consent" means affirmative, conscious, and voluntary authorization by an individual with legal capacity to give authorization.
(b) "Depicted individual" means an individual whose body is shown in whole or in part in an intimate image.
(c) "Disclosure" means transfer, publication or distribution to another person. "Disclose" has a corresponding meaning.
(d) "Identifiable" means recognizable by a person other than the depicted individual:
(i) From an intimate image itself; or
(ii) From an intimate image and identifying characteristic displayed in connection with the intimate image.
(e) "Identifying characteristic" means information that may be used to identify a depicted individual.
(f) "Individual" means a human being.
(g) "Intimate image" means a photograph, film, video recording, or other similar medium that shows:
(i) The uncovered genitals, pubic area, anus, or female post-pubescent nipple of a depicted individual; or
(ii) A depicted individual engaging in or being subjected to sexual conduct.
(h) "Person" means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity.
(i) "Sexual conduct" includes:
(i) Masturbation;
(ii) Genital, anal, or oral sex;
(iii) Sexual penetration of, or with, an object;
(iv) Bestiality; or
(v) The transfer of semen onto a depicted individual.
SECTION 3. Civil action. (1) In this section:
(a) "Harm" includes physical harm, economic harm and emotional distress whether or not accompanied by physical or economic harm.
(b) "Private" means:
(i) Created or obtained under circumstances in which a depicted individual had a reasonable expectation of privacy; or
(ii) Made accessible through computer fraud, extortion, fraud, false pretenses, false personation, identity theft, larceny, voyeurism or any other related crime.
(2) Except as otherwise provided in Section 4 of this act, a depicted individual who is identifiable and who suffers harm from a person's intentional disclosure or threatened disclosure of an intimate image that was private without the depicted individual's consent has a cause of action against the person if the person knew or acted with reckless disregard for whether:
(a) The depicted individual did not consent to the disclosure;
(b) The intimate image was private; and
(c) The depicted individual was identifiable.
(3) The following conduct by a depicted individual does not establish by itself that the individual consented to the disclosure of the intimate image which is the subject of an action under this act or that the individual lacked a reasonable expectation of privacy:
(a) Consent to creation of the image; or
(b) Previous consensual disclosure of the image.
(4) A depicted individual who does not consent to the sexual conduct or uncovering of the part of the body depicted in an intimate image of the individual retains a reasonable expectation of privacy even if the image was created when the individual was in a public place.
SECTION 4. Exceptions to liability. (1) In this section:
(a) "Child" means an unemancipated individual who is less than eighteen (18) years of age.
(b) "Parent" means an individual recognized as a parent under law of this state other than this act.
(2) A person is not liable under this act if the person proves that disclosure of, or a threat to disclose, an intimate image was:
(a) Made in good faith in:
(i) Law enforcement;
(ii) A legal proceeding; or
(iii) Medical education or treatment;
(b) Made in good faith in the reporting or investigation of:
(i) Unlawful conduct; or
(ii) Unsolicited and unwelcome conduct;
(c) Related to a matter of public concern or public interest; or
(d) Reasonably intended to assist the depicted individual.
(3) Subject to subsection (4) of this section, a defendant who is a parent or legal guardian of a child is not liable under this act for a disclosure or threatened disclosure of an intimate image, as defined in Section 2(g)(i) of this act, of the child.
(4) If a defendant asserts an exception to liability under subsection (3) of this section, the exception does not apply if the plaintiff proves the disclosure was:
(a) Prohibited by law other than this act; or
(b) Made for the purpose of sexual arousal, sexual gratification, humiliation, degradation, or monetary or commercial gain.
(5) Disclosure of, or a threat to disclose, an intimate image is not a matter of public concern or public interest solely because the depicted individual is a public figure.
SECTION 5. Plaintiff's privacy. In an action under this act:
(a) The court may exclude or redact from all pleadings and documents filed in the action the plaintiff's name and other identifying characteristics of the plaintiff;
(b) A plaintiff to whom paragraph (a) of this section applies shall file with the court and serve on the defendant a confidential information form that includes the excluded or redacted plaintiff's name and other identifying characteristics; and
(c) the court may make further orders as necessary to protect the identity and privacy of a plaintiff and may promulgate the necessary rules to effectuate the purposes of this section.
SECTION 6. Remedies. (1) In an action under this act, a prevailing plaintiff may recover:
(a) The greater of:
(i) Economic and noneconomic damages proximately caused by the defendant's disclosure or threatened disclosure, including damages for emotional distress whether or not accompanied by other damages; or
(ii) Statutory damages not to exceed Ten Thousand Dollars ($10,000.00) against each defendant found liable under this act for all disclosures and threatened disclosures by the defendant of which the plaintiff knew or reasonably should have known when filing the action or which became known during the pendency of the action. In determining the amount of statutory damages under this subparagraph (ii), consideration must be given to the age of the parties at the time of the disclosure or threatened disclosure, the number of disclosures or threatened disclosures made by the defendant, the breadth of distribution of the image by the defendant, and other exacerbating or mitigating factors;
(b) An amount equal to any monetary gain made by the defendant from disclosure of the intimate image; and
(c) Punitive damages under Section 11-1-65.
(2) In an action under this act, the court may award a prevailing plaintiff:
(a) Reasonable attorney's fees; and
(b) Additional relief, including injunctive relief.
(3) This act does not affect a right or remedy available under law of this state other than this act.
SECTION 7. Statute of limitations. (1) An action under Section 3(2) of this act for:
(a) An unauthorized disclosure may not be brought later than three (3) years from the date the disclosure was discovered or should have been discovered with the exercise of reasonable diligence; and
(b) A threat to disclose may not be brought later than four (4) years from the date of the threat to disclose.
(2) This section is subject to any tolling provisions provided by law of this state.
SECTION 8. Construction. This act must be construed to be consistent with the Communications Decency Act of 1996, 47 USC Section 230.
SECTION 9. Uniformity of application and construction. In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
SECTION 10. This act shall take effect and be in force from and after July 1, 2024.
