BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Hannah-Beth Jackson, Chair 2013-2014 Regular Session AB 2643 (Wieckowski) As Amended June 9, 2014 Hearing Date: June 17, 2014 Fiscal: Yes Urgency: No RD SUBJECT Invasion of Privacy: Distribution of Sexually Explicit Materials DESCRIPTION This bill would create, subject to certain exceptions, a new basis for civil liability for the non-consensual and intentional distribution of intimate images where the person in those images had a reasonable expectation of privacy, the defendant knew that the other person had a reasonable expectation that the material would remain private, and the person suffers either general damages or special damages, as specified. The bill would protect third parties from civil liability where the distributed material was previously distributed by another person, and would otherwise exempt defendants from civil liability in certain circumstances, such as where the person appearing in the material waived any reasonable expectation of privacy in the distributed material by making it accessible to the general public. The bill would authorize, in addition to any other relief available at law, equitable relief against the person in violation of this bill, including a temporary restraining order, or a preliminary or permanent injunction, as specified, and would provide for attorney's fees and costs for the prevailing party. BACKGROUND "Revenge porn" has received national attention in recent years, with legislation being proposed throughout the various states to address this unfortunate phenomenon. As described by the (more) AB 2643 (Wieckowski) Page 2 of ? National Conference of State Legislatures (NCSL), revenge porn is the posting of nude or sexually explicit photographs or videos of people online without their consent, even if the photograph itself was taken with consent. It can be as a result a spurned spouse, girlfriend, or boyfriend who seeks to get revenge by uploading photographs to websites, many of which are set up specifically for these kinds of photos or videos. (NCSL, State "Revenge Porn" Legislation (May 30, 2014) [as of Jun. 11, 2014].) It can also be as a result of the acts of a person who hacks into a personal computer and then releases the photographs or videos. The victim's name, address, and links to social media profiles are often included with the images, and some Web sites charge a fee to have the materials removed. Accordingly, last year, SB 255 (Cannella, Ch. 466, Stats. 2013) made it unlawful in California for any person who photographs or records by any means the 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, to subsequently distribute the image taken, if there was intent to cause serious emotional distress and the depicted person suffers serious emotional distress. A person who commits this crime is guilty of a disorderly conduct misdemeanor. (Pen. Code Sec. 947(j)(4)(A).) This bill would create a new basis for civil liability for the intentional distribution of intimate images where a victim had a reasonable expectation of privacy, did not consent to distribution, and was harmed as a result of the distribution, as specified. This remedy would be available in addition to the available remedies at law. CHANGES TO EXISTING LAW Existing law makes any person who photographs or records by any means the 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, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress, guilty of disorderly conduct, a misdemeanor. (Pen. Code Sec. 947(j)(4)(A).) Existing law defines "intimate body part" for these purposes to mean any portion of the genitals, and in the case of a female, also AB 2643 (Wieckowski) Page 3 of ? includes any portion of the breasts below the top of the areola, that is either uncovered or visible through less than fully opaque clothing. (Pen. Code Sec. 947(j)(4)(B).) Existing law provides, besides the personal rights mentioned or recognized in the Government Code, every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm, from personal insult, from defamation, and from injury to his personal relations. (Civ. Code Sec. 43.) Existing law provides that every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his or her rights. (Civ. Code Sec. 1708.) Existing case law provides that, in general, if a voluntary act, lawful in itself, may naturally result in the injury of another, or in the violation of his legal rights, the actor must at his peril see to it that such injury or violation does not follow, or he must expect to respond in damages therefor, regardless of the motive or degree of care with which the act is performed. (McKenna v. Pacific E. R. Co. (1930) 104 Cal. App. 538, 542 (internal citation omitted).) Existing law provides for torts of domestic violence, stalking, physical and constructive invasion of privacy. (Civ. Code Secs. 1708.6, 1708.7, 1708.8.) Existing law , with respect to an action for libel, in relevant part, defines "general damages" as damages for loss of reputation, shame, mortification and hurt feelings and "special damages" as all damages which plaintiff alleges and proves that he has suffered in respect to his property, business, trade, profession or occupation, including such amounts of money as the plaintiff alleges and proves he has expended as a result of the alleged libel, and no other. (Civ. Code Sec. 48a(4)(a)-(b).) This bill would allow for a new private cause of action 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 AB 2643 (Wieckowski) Page 4 of ? above. This bill would define "intimate body part" to mean 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. This bill would provide that there shall be no liability on the part of the person distributing material under any of the following circumstances: 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; 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; the person appearing in the material waived any reasonable expectation of privacy in the distributed material by making it accessible to the general public; the distributed material constitutes a matter of public concern; 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; the distributed material was previously distributed by another person. This bill would authorize a court, in addition to any other relief available at law, to order equitable relief against the person violating this bill, 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, as specified. The bill specifies processes for the use of a pseudonym, placing responsibility solely upon the parties and their counsel to redact the plaintiff's name from all documents filed with the court. The Judicial Council would be required to develop, by July 1, 2015, the confidential information form required for the use of a pseudonym. This bill would authorize a court to grant, after holding a properly noticed hearing, reasonable attorney's fees and costs AB 2643 (Wieckowski) Page 5 of ? to the prevailing party. This bill would provide that nothing in this bill shall be construed to alter or negate any rights, obligations, or immunities of an interactive service provider, as defined under federal law. The bill would also provide that nothing in this bill shall be construed to limit or preclude a plaintiff from securing or recovering any other available remedy. This bill contains a severability clause, and a delayed operative date of July 1, 2015. COMMENT 1. Stated need for the bill According to the author: The purpose of AB 2643 is to create a clear, focused civil remedy for victims of non-consensual distribution of intimate images, including a temporary restraining order, injunctive relief and a pseudonymous pleading provision. Research completed by University of Maryland Professor Danielle Keats Citron and the Cyber Civil Rights Initiative shows that at least 90 [percent] of the victims of non-consensual distribution of intimate imagery are women. This research further found that one-in-ten former intimate partners have threatened to expose their ex by sharing intimate images of their ex online. Of those who threaten this, 60 [percent] follow through with the threat. Of that 60 [percent], 59 [percent] share their ex's full name, 26 [percent] include her email address, 16 [percent] include a home address, and 14 [percent] include the victim's work address. This non-consensual distribution degrades, emotionally harms and severely embarrasses the victims. It guarantees reputational harm and frequently affects employment status or prospects. It further creates a substantial safety risk for many of the women victims, 49 [percent] report they were harassed or stalked by people who saw the revenge porn post. Despite the increasing frequency of such devastating distribution, the law has not caught up with non-consensual distribution of intimate imagery. Last year SB 255 (Cannella) made the first steps to address the issue by creating a AB 2643 (Wieckowski) Page 6 of ? criminal penalty for distributing intimate images without consent in certain circumstances. However, there are still instances where the criminal law would not apply to a non-consensual distribution situation. There are also victims who do not want to approach the situation from a criminal justice standpoint. Currently, there is still no clear path to a civil remedy for victim[s]. Intentional infliction of emotional distress, invasion of privacy, public disclosure of private facts, or other common law tort claims do not clearly fit the form of conduct involved. Nor do they provide for pseudonymous filing that prevents further harm, embarrassment, or risk of harassment or physical attack that comes from the intimate images and victim's information becoming part of the public court record when the victim files the civil suit. Currently, if a victim is willing to file a civil suit despite the risks, they typically must assert multiple claims hoping one will "stick" with that particular court. This bill provides a direct, private right of action that fights the particulars of non-consensual distribution of intimate imagery. It protects victims from further embarrassment and potential harassment by providing an option for pseudonymous filing. The bill explicitly provides for equitable relief in the form of a temporary restraining order, a preliminary injunction, or a permanent injunction ordering the defendant to remove the distributed images. This addresses the primary objective of most victims who simply want their private images taken down. Thus, this solves the non-consensual distribution of intimate images problem by creating a clear pathway for victims seeking legal justice when a former intimate partner has betrayed their trust and caused serious harm and embarrassment through the distribution of intimate images. Also in support, the California Partnership to End Domestic Violence adds that while these pictures were most commonly taken during the course of a romantic relationship and were meant to be kept private, in some cases the images were acquired without the consent of the subject. "No matter the origin, victims of revenge porn face embarrassment that seemingly has no end and has led to dire consequences, such as alienation, loss of employment, and even suicide. Many survivors of domestic violence have experienced this specific abuse tactic. It is especially common when the victim has left the relationship, and as an attempt to exact revenge and exert power over the victim, an abuser will post extremely personal pictures of a sexually AB 2643 (Wieckowski) Page 7 of ? charged nature. [ . . . ] By providing a private right of action, AB 2643 empowers victims with an option for getting the images out of the public eye as quickly as possible, and allows for the victim to obtain relief and justice for these acts." 2. The proposed private right of action is predicated upon distribution in violation of a reasonable expectation of privacy, not distribution of an otherwise lawful image This bill would create a new cause of action premised upon the non-consensual, intentional distribution of specified items depicting an intimate body part of another person, where (1) the other person had a reasonable expectation of privacy, (2) the defendant knew that the person had a reasonable expectation that the material would remain private, and (3) the person in the image suffered specified harm as a result of the non-consensual distribution. In terms of the last element, relating to harm caused to the plaintiff, the plaintiff need only show harm that satisfies general damages or special damages as those terms are used under libel law in California, opposed to the more stringent "severe emotional harm" standard used in intentional infliction of emotional distress tort cases. Accordingly, pursuant to this bill, the plaintiff can recover damages suffered in respect to his or her property, business, trade, profession or occupation, including such amounts of money as the plaintiff alleges and proves he or she has expended as a result of the violation (special damages), but can also recover damages for loss of reputation, shame, mortification, and hurt feelings (general damages). In terms of remedies, the bill allows courts to grant equitable relief against the person in violation of this bill, including a temporary restraining order, or a preliminary or permanent injunction ordering the defendant to cease distribution of material. In support of the bill, the Cyber Civil Rights Initiative (CCRI) writes that "[r]evenge porn, or non-consensual pornography, has unfortunately become an epidemic in the United States and around the world. In most cases today, revenge porn is posted to the Internet; a place where perpetrators can hide behind the cloak of anonymity, and cause victims the most harm with the least amount of effort. With the click of a button, perpetrators can send victims' lives spiraling out of control leaving them in a state of hopelessness, despair, and sometimes severe paranoia." CCRI notes that victims can also experience the loss of a job and/or difficulty finding a job, the loss of a partner, the loss of respect of their loved ones, can fear leaving their homes and AB 2643 (Wieckowski) Page 8 of ? can even feel unsafe in their own home. On top of all this, "[v]ictims often feel they have no recourse when they discover their intimate images have been distributed without consent. They are not sure what to call what has happened to them; they are afraid what taking legal action will mean even greater exposure, and they are not sure that the benefit of the process would be. This bill helps with all three of these burdens [ . . . ] by giving this harm a name, a safe process, and a specific remedy. 3. Bill authorizes pseudonyms to prevent further victimization of the plaintiff and encourage them to obtain relief for their injuries in the courts This bill would authorize a court to grant injunctive relief substituting a pseudonym for the true name of a plaintiff. A plaintiff would be permitted to proceed using a pseudonym (specifically, either as John Doe, Jane Doe, or Doe), for his or her true name and to exclude or redact from all pleadings and documents filed in the action his or her other identifying characteristics. These characteristics would include, for example, the plaintiff's name, address, age, race, or relationship to defendant. A plaintiff who proceeds under a pseudonym, would have to 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. Pursuant to the bill's pseudonym provisions, the court would be required to keep the plaintiff's name and excluded or redacted characteristics confidential and all court decisions, orders, petitions, and other documents, including motions and papers filed by the parties, would be required to be worded so as to protect the name or other identifying characteristics of the plaintiff from public revelation. Significantly, to reduce any potential burdens on the courts, the bill would place the responsibility for excluding or redacting the plaintiff's identifying characteristics from all documents filed with the court solely with the parties and their attorneys, and states that the bill does not obligate the court to review pleadings or other papers for compliance. As a matter of public policy, because the public has a First Amendment right to access records, the use of pseudonyms in cases should be the exception, not the rule. However, there is precedent under California law for doing so in certain cases to safeguard the individual privacy and prevent harassment, AB 2643 (Wieckowski) Page 9 of ? including cases involving victims of sexual offenses and in cases where the courts find it necessary to safeguard the individual privacy and prevent harassment of a health care patient, licensed health practitioner, or employee, client, or customer of a health care facility who is a party or witness in the proceeding. (See Pen. Code Secs. 293, 293.5; Civ. Code Sec. 3427.3; see also Health & Saf. Code Sec. 120291, allowing for victims of intentional HIV infections to use pseudonyms.) While some might argue that such cases are arguably distinguishable from the types of offenses addressed by this bill, it could be said that the intentional distribution of an intimate image of another person who specifically expressed desire to keep the image private or who reasonably expected it would be kept private by a person they trusted, is an offense upon that person's body not unlike a sexual assault. Indeed, one supporter of this legislation, the Cyber Civil Rights Initiative, specifically notes that "[r]evenge porn is a form of sexual abuse. It is the use of sex to control and humiliate the victim. Based upon our conversations with thousands of victims around the world, revenge porn victims suffer many of the same symptoms that victims of rape experience: numbing, nightmares, depression, anxiety, sudden changes in appetite, sleep disturbance, suicidal thoughts, feelings of guilt/shame/self-blame, poor concentration, and post-traumatic stress." It can also result in loss of employment or potential employment. In support of the bill, Women Escaping a Violent Environment (WEAVE) writes that the option to file claims pseudonymously is "vital because otherwise many victims will not bring forth claims for fear of drawing further public attention to the images." Also in support of the bill, the California Employment Lawyers Association (CELA) adds that non-consensual distribution not only "degrades, emotionally harms and severely embarrasses the victims" but "it guarantees reputational harm and frequently affects employment status or prospects." CELA writes: In addition, victims who are also litigants in an employment lawsuit against their employers, particularly in sexual harassment cases, are vulnerable to intimidation tactics by employers defending the lawsuit. Employer defendants will often search for embarrassing evidence against the employee plaintiff, such as intimate images which are intended to be private, in order to retaliate and to use them in a public forum (whether in court or some other public forum) as a tactic to discredit the employee, defend their actions, or AB 2643 (Wieckowski) Page 10 of ? humiliate them to the point that they feel compelled to dismiss their case. Despite its increasing frequency, the law has not caught up with non-consensual distribution of intimate imagery. Currently, there is still no clear path to a civil remedy for victims. Intentional infliction of emotional distress, invasion of privacy, public disclosure of private facts, or other common law tort claims do not clearly fit the form of conduct involved. Nor do they provide for pseudonymous filing that prevents further harm, embarrassment, or risk of harassment or physical attack that comes from the intimate images and victim's information becoming part of the public court record when the victim files the civil suit. Accordingly, by providing for the use of pseudonyms, this bill appears to remove a disincentive from bringing legitimate lawsuits and also address issues such as employer retaliation. While such helpfulness is arguably tampered by the reality that once photographs or videos or other intimate images or sounds are made available on the Internet, little if anything can be done to remove the previously distributed images, this bill, at the very least, helps plaintiffs prevent the future distribution of those images. 4. Attorney's fees This bill would allow for a court to grant, upon a properly noticed hearing, attorney's fees and costs to a prevailing party in an action brought under this bill. This could unintentionally serve as a deterrent to victims to bring suits, as they could be required to bear the costs of the defendant if, for whatever reason, they fail to prove one of the elements of this proposed tort. The following amendment would allow for the prevailing plaintiff (i.e. the victim) to recover attorney's fees, while removing any deterrence for victims to bring claims as a result of a two way shifting fee. Suggested amendment : On page 5, line 24, strike "party" and insert "plaintiff" 5. Author's amendments AB 2643 (Wieckowski) Page 11 of ? The author offers the following amendments that would: (1) correct a drafting error and ensure the burden of implementing the pseudonym provisions falls on the parties and their counsel, and not on the courts; and (2) strike the provision to require counsel for all parties to comport their conduct with a specified rule of professional conduct and require that counsel and all parties comply with any lawful order of the court. Author's amendments : (1): On page 5, lines 19-21, strike "The court may grant injunctive relief substituting a pseudonym for the true name of the plaintiff pursuant to subdivision (e)" and insert "The court may grant injunctive relief maintaining the confidentiality of a plaintiff using a pseudonym as provided in subdivision (f)" (2): On page 6, strike lines 1-4, inclusive and renumber accordingly 6. Removal of opposition Based upon the June 9 amendments to the bill, the American Civil Liberties Union has removed its opposition to the bill and is now neutral. Support : Attorney General Kamala Harris; California Employment Lawyers Association; California Partnership to End Domestic Violence; Consumer Attorneys of California; Cyber Civil Rights Initiative; Democratic Activists for Women Now; McGeorge Women's Caucus; Peace Officers Research Association of California (PORAC); Women Escaping a Violent Environment (WEAVE); two individuals Opposition : None Known HISTORY Source : Author Related Pending Legislation : None Known Prior Legislation : SB 255 (Cannella, Ch. 466, Stats. 2013) See Background. AB 2643 (Wieckowski) Page 12 of ? Prior Vote : Assembly Floor (Ayes 75, Noes 0) Assembly Appropriations Committee (Ayes 17, Noes 0) Assembly Judiciary Committee (Ayes 10, Noes 0) **************