Amended IN Senate March 21, 2023 CALIFORNIA LEGISLATURE 20232024 REGULAR SESSION Senate Bill No. 646Introduced by Senator CorteseFebruary 16, 2023An act to amend Section 1708.85 of the Civil Code, relating to privacy. add Section 52.9 to the Civil Code, relating to civil law.LEGISLATIVE COUNSEL'S DIGESTSB 646, as amended, Cortese. Invasion of privacy: distribution of sexually explicit materials. Civil law: personal rights: online sex trafficking: sexual photographs. Existing law grants a cause of action to a depicted individual, as defined, against a person who either (1) creates and intentionally discloses sexually explicit material if the person knows or reasonably should have known the depicted individual did not consent to its creation or disclosure or (2) intentionally discloses sexually explicit material that the person did not create if the person knows the depicted individual did not consent to its creation. Existing law also specifies that a victim of human trafficking may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief.Existing federal law grants a cause of action to a person who, while a minor, was a victim of a violation of specified federal crimes and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor.This bill would allow a person to bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, specified statutory damages, and any other appropriate relief, against a person or entity that distributes, including through electronic distribution, actionable material, unless otherwise specified.This bill would define actionable material as a moving or still photograph in any technological form, regardless of whether it has been altered, of (1) a person who was less than 18 years of age at the time it was created or their identifiable likeness, in which they are the subject of obscene material, as defined, or (2) a person who, when less than 18 years of age, was a victim of a violation of the above-described specified federal crimes, and would have the above-described federal cause of action available to them.This bill would authorize, in addition to any other damages awarded to a prevailing plaintiff, statutory damages of $200,000 to be assessed and paid by the defendant for failing to cease distribution of, the material within 2 business days after notice of claimed infringement of these provisions was received by the defendant. This bill would require a person or entity that operates an online service or internet website that is available in California to list, in a location available to the public via the service or on the internet website, an agent for notification of claimed violation of these provisions. The bill would also require the person or entity to create a method to contact that agent for the purpose of reporting content, as specified.This bill, in addition to the private right of action, would require the Attorney General to enforce these provisions against repeated violators, including, among other actions, by levying fines commensurate with the statutory damages described above payable to the person in the actionable material.This bill would state that its provisions are severable.Existing law creates a private right of action against a person who intentionally distributes a photograph or recorded image of another, without the other persons consent, if certain conditions are met, including if the person who distributed the material knew, or reasonably should have known, 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.This bill would make nonsubstantive changes to that provision.Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: NOYES Local Program: NO Bill TextThe people of the State of California do enact as follows:SECTION 1. The Legislature finds and declares all of the following:(a) Business Insider revealed that, during the global COVID-19 pandemic, online child sexual abuse material (CSAM) being posted and sent on social media platforms rose by a shocking 31 percent. This figure comes from the National Center for Missing and Exploited Children (NCMEC).(b) In 2019, it was found that Facebook recorded more CSAM than any other technology platform, and was responsible for 99 percent of reports to NCMEC.(c) Facebook claims that from July to September, inclusive, 2020, it detected 13,000,000 images alone on Facebook and Instagram, which clearly highlights the severity of this issue and the increasing danger that this proposes. These figures that came from NCMEC come from data given to NCMEC by CyberTipline.(d) In 2019, NCMECs CyberTipline received 16,900,000 reports relating to suspected child sexual exploitation. The reports mostly flagged by users of social media platforms or search engines went on to reveal 69,100,000 million images, videos, and files. Fifteen million eight hundred eighty-four thousand five hundred eleven were found on Facebook, 449,283 were found on Google, 82,030 were found on Snapchat and 45,726 were found on Twitter.SEC. 2. Section 52.9 is added to the Civil Code, to read:52.9. (a) For purposes of this section:(1) Actionable material means a moving or still photograph in any technological form, regardless of whether it has been altered, of either of the following:(A) A person who was less than 18 years of age at the time it was created, or their identifiable likeness, in which they are the subject of obscene material.(B) A person who, when less than 18 years of age, was a victim of a violation of Section 1589, 1590, 1591, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of Title 18 of the United States Code, and would have a cause of action available to them under Section 2255 of Title 18 of the United States Code.(2) Electronic distribution means a transmission or sharing by electronic means including, but not limited to, transmission, posting for public view, or sharing via an internet website, platform, application, peer-to-peer file sharing, or other online mechanism.(3) Obscene material means material, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value.(b) (1) A person may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, and any other appropriate relief, including statutory damages and attorneys fees and costs, against a person or entity that distributes, including through electronic distribution, actionable material.(2) A parent or guardian may bring a civil action pursuant to this section on behalf of a minor or ward in the actionable material.(c) Upon receipt of notice from the person in the actionable material, a person or entity distributing actionable material shall immediately remove the material or disable its distribution, and all copies shall be destroyed or returned to the person in the actionable material, without regard to any permission previously given by anyone for its creation or distribution.(d) An action brought pursuant to this section shall be commenced within 6 years of discovery of infringement, or within 10 years of the person in the actionable material having reached 18 years of age, whichever is longer.(e) (1) In addition to any other damages awarded, statutory damages in the amount of two hundred thousand dollars ($200,000) shall be awarded to the prevailing plaintiff to be paid by the defendant for failing to cease distribution of, the material within two business days after notice of claimed infringement of this section was received by the defendant.(2) If actionable material about which the defendant received notice is removed from electronic distribution, or access to them is disabled, within two business days of having received notice of claimed infringement under this section, civil liability or statutory damages under this section shall not be available.(3) The amount of the statutory damages awarded to a plaintiff pursuant to paragraph (1) shall be adjusted commencing on January 1, 2028, and every five years thereafter, to reflect an increase in the cost of living in California, as indicated by the annual average of the California Consumer Price Index.(f) A person shall not be liable for distributing the material pursuant to this section if the distribution is made in the course of reporting unlawful activity or is necessary to comply with a court order or other law.(g) (1) A person or entity that operates an online service or internet website that is available in California shall list, in a location available to the public via the service or on the internet website, an agent for notification of claimed violation of this section. (2) A person or entity that operates an online service or internet website that is available in California shall create a method to contact the agent listed pursuant to paragraph (1) for the purpose of reporting content that the user believes was erroneously removed as actionable material.(h) A civil injunction shall be available to block or interrupt the distribution, including electronic distribution, of actionable material.(i) In addition to the personal right of action set forth in subdivision (b), the Attorney General shall commence an action to enforce this section against a person or entity that engages in repeated violations, and shall, among other actions, levy fines commensurate with the statutory damages provided in subdivision (e), payable to the person in the actionable material.(j) The provisions of this section are cumulative to any other rights, duties, obligations, penalties, or crimes imposed under any other law.(k) 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 lies against a person who intentionally distributes by any means a photograph, film, videotape, recording, or any other reproduction of another, without the others 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 attorneys 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 plaintiffs name and other identifying characteristics excluded or redacted. The court shall keep the plaintiffs 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 plaintiffs name and other identifying characteristics excluded or redacted. The court shall keep the plaintiffs 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)For purposes of this subdivision, the following definitions apply:(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 plaintiffs 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 partys 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 plaintiffs 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).
Amended IN Senate March 21, 2023 CALIFORNIA LEGISLATURE 20232024 REGULAR SESSION Senate Bill No. 646Introduced by Senator CorteseFebruary 16, 2023An act to amend Section 1708.85 of the Civil Code, relating to privacy. add Section 52.9 to the Civil Code, relating to civil law.LEGISLATIVE COUNSEL'S DIGESTSB 646, as amended, Cortese. Invasion of privacy: distribution of sexually explicit materials. Civil law: personal rights: online sex trafficking: sexual photographs. Existing law grants a cause of action to a depicted individual, as defined, against a person who either (1) creates and intentionally discloses sexually explicit material if the person knows or reasonably should have known the depicted individual did not consent to its creation or disclosure or (2) intentionally discloses sexually explicit material that the person did not create if the person knows the depicted individual did not consent to its creation. Existing law also specifies that a victim of human trafficking may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief.Existing federal law grants a cause of action to a person who, while a minor, was a victim of a violation of specified federal crimes and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor.This bill would allow a person to bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, specified statutory damages, and any other appropriate relief, against a person or entity that distributes, including through electronic distribution, actionable material, unless otherwise specified.This bill would define actionable material as a moving or still photograph in any technological form, regardless of whether it has been altered, of (1) a person who was less than 18 years of age at the time it was created or their identifiable likeness, in which they are the subject of obscene material, as defined, or (2) a person who, when less than 18 years of age, was a victim of a violation of the above-described specified federal crimes, and would have the above-described federal cause of action available to them.This bill would authorize, in addition to any other damages awarded to a prevailing plaintiff, statutory damages of $200,000 to be assessed and paid by the defendant for failing to cease distribution of, the material within 2 business days after notice of claimed infringement of these provisions was received by the defendant. This bill would require a person or entity that operates an online service or internet website that is available in California to list, in a location available to the public via the service or on the internet website, an agent for notification of claimed violation of these provisions. The bill would also require the person or entity to create a method to contact that agent for the purpose of reporting content, as specified.This bill, in addition to the private right of action, would require the Attorney General to enforce these provisions against repeated violators, including, among other actions, by levying fines commensurate with the statutory damages described above payable to the person in the actionable material.This bill would state that its provisions are severable.Existing law creates a private right of action against a person who intentionally distributes a photograph or recorded image of another, without the other persons consent, if certain conditions are met, including if the person who distributed the material knew, or reasonably should have known, 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.This bill would make nonsubstantive changes to that provision.Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: NOYES Local Program: NO
Amended IN Senate March 21, 2023
Amended IN Senate March 21, 2023
CALIFORNIA LEGISLATURE 20232024 REGULAR SESSION
Senate Bill
No. 646
Introduced by Senator CorteseFebruary 16, 2023
Introduced by Senator Cortese
February 16, 2023
An act to amend Section 1708.85 of the Civil Code, relating to privacy. add Section 52.9 to the Civil Code, relating to civil law.
LEGISLATIVE COUNSEL'S DIGEST
## LEGISLATIVE COUNSEL'S DIGEST
SB 646, as amended, Cortese. Invasion of privacy: distribution of sexually explicit materials. Civil law: personal rights: online sex trafficking: sexual photographs.
Existing law grants a cause of action to a depicted individual, as defined, against a person who either (1) creates and intentionally discloses sexually explicit material if the person knows or reasonably should have known the depicted individual did not consent to its creation or disclosure or (2) intentionally discloses sexually explicit material that the person did not create if the person knows the depicted individual did not consent to its creation. Existing law also specifies that a victim of human trafficking may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief.Existing federal law grants a cause of action to a person who, while a minor, was a victim of a violation of specified federal crimes and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor.This bill would allow a person to bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, specified statutory damages, and any other appropriate relief, against a person or entity that distributes, including through electronic distribution, actionable material, unless otherwise specified.This bill would define actionable material as a moving or still photograph in any technological form, regardless of whether it has been altered, of (1) a person who was less than 18 years of age at the time it was created or their identifiable likeness, in which they are the subject of obscene material, as defined, or (2) a person who, when less than 18 years of age, was a victim of a violation of the above-described specified federal crimes, and would have the above-described federal cause of action available to them.This bill would authorize, in addition to any other damages awarded to a prevailing plaintiff, statutory damages of $200,000 to be assessed and paid by the defendant for failing to cease distribution of, the material within 2 business days after notice of claimed infringement of these provisions was received by the defendant. This bill would require a person or entity that operates an online service or internet website that is available in California to list, in a location available to the public via the service or on the internet website, an agent for notification of claimed violation of these provisions. The bill would also require the person or entity to create a method to contact that agent for the purpose of reporting content, as specified.This bill, in addition to the private right of action, would require the Attorney General to enforce these provisions against repeated violators, including, among other actions, by levying fines commensurate with the statutory damages described above payable to the person in the actionable material.This bill would state that its provisions are severable.Existing law creates a private right of action against a person who intentionally distributes a photograph or recorded image of another, without the other persons consent, if certain conditions are met, including if the person who distributed the material knew, or reasonably should have known, 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.This bill would make nonsubstantive changes to that provision.
Existing law grants a cause of action to a depicted individual, as defined, against a person who either (1) creates and intentionally discloses sexually explicit material if the person knows or reasonably should have known the depicted individual did not consent to its creation or disclosure or (2) intentionally discloses sexually explicit material that the person did not create if the person knows the depicted individual did not consent to its creation. Existing law also specifies that a victim of human trafficking may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief.
Existing federal law grants a cause of action to a person who, while a minor, was a victim of a violation of specified federal crimes and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor.
This bill would allow a person to bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, specified statutory damages, and any other appropriate relief, against a person or entity that distributes, including through electronic distribution, actionable material, unless otherwise specified.
This bill would define actionable material as a moving or still photograph in any technological form, regardless of whether it has been altered, of (1) a person who was less than 18 years of age at the time it was created or their identifiable likeness, in which they are the subject of obscene material, as defined, or (2) a person who, when less than 18 years of age, was a victim of a violation of the above-described specified federal crimes, and would have the above-described federal cause of action available to them.
This bill would authorize, in addition to any other damages awarded to a prevailing plaintiff, statutory damages of $200,000 to be assessed and paid by the defendant for failing to cease distribution of, the material within 2 business days after notice of claimed infringement of these provisions was received by the defendant.
This bill would require a person or entity that operates an online service or internet website that is available in California to list, in a location available to the public via the service or on the internet website, an agent for notification of claimed violation of these provisions. The bill would also require the person or entity to create a method to contact that agent for the purpose of reporting content, as specified.
This bill, in addition to the private right of action, would require the Attorney General to enforce these provisions against repeated violators, including, among other actions, by levying fines commensurate with the statutory damages described above payable to the person in the actionable material.
This bill would state that its provisions are severable.
Existing law creates a private right of action against a person who intentionally distributes a photograph or recorded image of another, without the other persons consent, if certain conditions are met, including if the person who distributed the material knew, or reasonably should have known, 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.
This bill would make nonsubstantive changes to that provision.
## Digest Key
## Bill Text
The people of the State of California do enact as follows:SECTION 1. The Legislature finds and declares all of the following:(a) Business Insider revealed that, during the global COVID-19 pandemic, online child sexual abuse material (CSAM) being posted and sent on social media platforms rose by a shocking 31 percent. This figure comes from the National Center for Missing and Exploited Children (NCMEC).(b) In 2019, it was found that Facebook recorded more CSAM than any other technology platform, and was responsible for 99 percent of reports to NCMEC.(c) Facebook claims that from July to September, inclusive, 2020, it detected 13,000,000 images alone on Facebook and Instagram, which clearly highlights the severity of this issue and the increasing danger that this proposes. These figures that came from NCMEC come from data given to NCMEC by CyberTipline.(d) In 2019, NCMECs CyberTipline received 16,900,000 reports relating to suspected child sexual exploitation. The reports mostly flagged by users of social media platforms or search engines went on to reveal 69,100,000 million images, videos, and files. Fifteen million eight hundred eighty-four thousand five hundred eleven were found on Facebook, 449,283 were found on Google, 82,030 were found on Snapchat and 45,726 were found on Twitter.SEC. 2. Section 52.9 is added to the Civil Code, to read:52.9. (a) For purposes of this section:(1) Actionable material means a moving or still photograph in any technological form, regardless of whether it has been altered, of either of the following:(A) A person who was less than 18 years of age at the time it was created, or their identifiable likeness, in which they are the subject of obscene material.(B) A person who, when less than 18 years of age, was a victim of a violation of Section 1589, 1590, 1591, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of Title 18 of the United States Code, and would have a cause of action available to them under Section 2255 of Title 18 of the United States Code.(2) Electronic distribution means a transmission or sharing by electronic means including, but not limited to, transmission, posting for public view, or sharing via an internet website, platform, application, peer-to-peer file sharing, or other online mechanism.(3) Obscene material means material, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value.(b) (1) A person may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, and any other appropriate relief, including statutory damages and attorneys fees and costs, against a person or entity that distributes, including through electronic distribution, actionable material.(2) A parent or guardian may bring a civil action pursuant to this section on behalf of a minor or ward in the actionable material.(c) Upon receipt of notice from the person in the actionable material, a person or entity distributing actionable material shall immediately remove the material or disable its distribution, and all copies shall be destroyed or returned to the person in the actionable material, without regard to any permission previously given by anyone for its creation or distribution.(d) An action brought pursuant to this section shall be commenced within 6 years of discovery of infringement, or within 10 years of the person in the actionable material having reached 18 years of age, whichever is longer.(e) (1) In addition to any other damages awarded, statutory damages in the amount of two hundred thousand dollars ($200,000) shall be awarded to the prevailing plaintiff to be paid by the defendant for failing to cease distribution of, the material within two business days after notice of claimed infringement of this section was received by the defendant.(2) If actionable material about which the defendant received notice is removed from electronic distribution, or access to them is disabled, within two business days of having received notice of claimed infringement under this section, civil liability or statutory damages under this section shall not be available.(3) The amount of the statutory damages awarded to a plaintiff pursuant to paragraph (1) shall be adjusted commencing on January 1, 2028, and every five years thereafter, to reflect an increase in the cost of living in California, as indicated by the annual average of the California Consumer Price Index.(f) A person shall not be liable for distributing the material pursuant to this section if the distribution is made in the course of reporting unlawful activity or is necessary to comply with a court order or other law.(g) (1) A person or entity that operates an online service or internet website that is available in California shall list, in a location available to the public via the service or on the internet website, an agent for notification of claimed violation of this section. (2) A person or entity that operates an online service or internet website that is available in California shall create a method to contact the agent listed pursuant to paragraph (1) for the purpose of reporting content that the user believes was erroneously removed as actionable material.(h) A civil injunction shall be available to block or interrupt the distribution, including electronic distribution, of actionable material.(i) In addition to the personal right of action set forth in subdivision (b), the Attorney General shall commence an action to enforce this section against a person or entity that engages in repeated violations, and shall, among other actions, levy fines commensurate with the statutory damages provided in subdivision (e), payable to the person in the actionable material.(j) The provisions of this section are cumulative to any other rights, duties, obligations, penalties, or crimes imposed under any other law.(k) 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 lies against a person who intentionally distributes by any means a photograph, film, videotape, recording, or any other reproduction of another, without the others 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 attorneys 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 plaintiffs name and other identifying characteristics excluded or redacted. The court shall keep the plaintiffs 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 plaintiffs name and other identifying characteristics excluded or redacted. The court shall keep the plaintiffs 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)For purposes of this subdivision, the following definitions apply:(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 plaintiffs 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 partys 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 plaintiffs 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).
The people of the State of California do enact as follows:
## The people of the State of California do enact as follows:
SECTION 1. The Legislature finds and declares all of the following:(a) Business Insider revealed that, during the global COVID-19 pandemic, online child sexual abuse material (CSAM) being posted and sent on social media platforms rose by a shocking 31 percent. This figure comes from the National Center for Missing and Exploited Children (NCMEC).(b) In 2019, it was found that Facebook recorded more CSAM than any other technology platform, and was responsible for 99 percent of reports to NCMEC.(c) Facebook claims that from July to September, inclusive, 2020, it detected 13,000,000 images alone on Facebook and Instagram, which clearly highlights the severity of this issue and the increasing danger that this proposes. These figures that came from NCMEC come from data given to NCMEC by CyberTipline.(d) In 2019, NCMECs CyberTipline received 16,900,000 reports relating to suspected child sexual exploitation. The reports mostly flagged by users of social media platforms or search engines went on to reveal 69,100,000 million images, videos, and files. Fifteen million eight hundred eighty-four thousand five hundred eleven were found on Facebook, 449,283 were found on Google, 82,030 were found on Snapchat and 45,726 were found on Twitter.
SECTION 1. The Legislature finds and declares all of the following:(a) Business Insider revealed that, during the global COVID-19 pandemic, online child sexual abuse material (CSAM) being posted and sent on social media platforms rose by a shocking 31 percent. This figure comes from the National Center for Missing and Exploited Children (NCMEC).(b) In 2019, it was found that Facebook recorded more CSAM than any other technology platform, and was responsible for 99 percent of reports to NCMEC.(c) Facebook claims that from July to September, inclusive, 2020, it detected 13,000,000 images alone on Facebook and Instagram, which clearly highlights the severity of this issue and the increasing danger that this proposes. These figures that came from NCMEC come from data given to NCMEC by CyberTipline.(d) In 2019, NCMECs CyberTipline received 16,900,000 reports relating to suspected child sexual exploitation. The reports mostly flagged by users of social media platforms or search engines went on to reveal 69,100,000 million images, videos, and files. Fifteen million eight hundred eighty-four thousand five hundred eleven were found on Facebook, 449,283 were found on Google, 82,030 were found on Snapchat and 45,726 were found on Twitter.
SECTION 1. The Legislature finds and declares all of the following:
### SECTION 1.
(a) Business Insider revealed that, during the global COVID-19 pandemic, online child sexual abuse material (CSAM) being posted and sent on social media platforms rose by a shocking 31 percent. This figure comes from the National Center for Missing and Exploited Children (NCMEC).
(b) In 2019, it was found that Facebook recorded more CSAM than any other technology platform, and was responsible for 99 percent of reports to NCMEC.
(c) Facebook claims that from July to September, inclusive, 2020, it detected 13,000,000 images alone on Facebook and Instagram, which clearly highlights the severity of this issue and the increasing danger that this proposes. These figures that came from NCMEC come from data given to NCMEC by CyberTipline.
(d) In 2019, NCMECs CyberTipline received 16,900,000 reports relating to suspected child sexual exploitation. The reports mostly flagged by users of social media platforms or search engines went on to reveal 69,100,000 million images, videos, and files. Fifteen million eight hundred eighty-four thousand five hundred eleven were found on Facebook, 449,283 were found on Google, 82,030 were found on Snapchat and 45,726 were found on Twitter.
SEC. 2. Section 52.9 is added to the Civil Code, to read:52.9. (a) For purposes of this section:(1) Actionable material means a moving or still photograph in any technological form, regardless of whether it has been altered, of either of the following:(A) A person who was less than 18 years of age at the time it was created, or their identifiable likeness, in which they are the subject of obscene material.(B) A person who, when less than 18 years of age, was a victim of a violation of Section 1589, 1590, 1591, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of Title 18 of the United States Code, and would have a cause of action available to them under Section 2255 of Title 18 of the United States Code.(2) Electronic distribution means a transmission or sharing by electronic means including, but not limited to, transmission, posting for public view, or sharing via an internet website, platform, application, peer-to-peer file sharing, or other online mechanism.(3) Obscene material means material, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value.(b) (1) A person may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, and any other appropriate relief, including statutory damages and attorneys fees and costs, against a person or entity that distributes, including through electronic distribution, actionable material.(2) A parent or guardian may bring a civil action pursuant to this section on behalf of a minor or ward in the actionable material.(c) Upon receipt of notice from the person in the actionable material, a person or entity distributing actionable material shall immediately remove the material or disable its distribution, and all copies shall be destroyed or returned to the person in the actionable material, without regard to any permission previously given by anyone for its creation or distribution.(d) An action brought pursuant to this section shall be commenced within 6 years of discovery of infringement, or within 10 years of the person in the actionable material having reached 18 years of age, whichever is longer.(e) (1) In addition to any other damages awarded, statutory damages in the amount of two hundred thousand dollars ($200,000) shall be awarded to the prevailing plaintiff to be paid by the defendant for failing to cease distribution of, the material within two business days after notice of claimed infringement of this section was received by the defendant.(2) If actionable material about which the defendant received notice is removed from electronic distribution, or access to them is disabled, within two business days of having received notice of claimed infringement under this section, civil liability or statutory damages under this section shall not be available.(3) The amount of the statutory damages awarded to a plaintiff pursuant to paragraph (1) shall be adjusted commencing on January 1, 2028, and every five years thereafter, to reflect an increase in the cost of living in California, as indicated by the annual average of the California Consumer Price Index.(f) A person shall not be liable for distributing the material pursuant to this section if the distribution is made in the course of reporting unlawful activity or is necessary to comply with a court order or other law.(g) (1) A person or entity that operates an online service or internet website that is available in California shall list, in a location available to the public via the service or on the internet website, an agent for notification of claimed violation of this section. (2) A person or entity that operates an online service or internet website that is available in California shall create a method to contact the agent listed pursuant to paragraph (1) for the purpose of reporting content that the user believes was erroneously removed as actionable material.(h) A civil injunction shall be available to block or interrupt the distribution, including electronic distribution, of actionable material.(i) In addition to the personal right of action set forth in subdivision (b), the Attorney General shall commence an action to enforce this section against a person or entity that engages in repeated violations, and shall, among other actions, levy fines commensurate with the statutory damages provided in subdivision (e), payable to the person in the actionable material.(j) The provisions of this section are cumulative to any other rights, duties, obligations, penalties, or crimes imposed under any other law.(k) 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.
SEC. 2. Section 52.9 is added to the Civil Code, to read:
### SEC. 2.
52.9. (a) For purposes of this section:(1) Actionable material means a moving or still photograph in any technological form, regardless of whether it has been altered, of either of the following:(A) A person who was less than 18 years of age at the time it was created, or their identifiable likeness, in which they are the subject of obscene material.(B) A person who, when less than 18 years of age, was a victim of a violation of Section 1589, 1590, 1591, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of Title 18 of the United States Code, and would have a cause of action available to them under Section 2255 of Title 18 of the United States Code.(2) Electronic distribution means a transmission or sharing by electronic means including, but not limited to, transmission, posting for public view, or sharing via an internet website, platform, application, peer-to-peer file sharing, or other online mechanism.(3) Obscene material means material, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value.(b) (1) A person may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, and any other appropriate relief, including statutory damages and attorneys fees and costs, against a person or entity that distributes, including through electronic distribution, actionable material.(2) A parent or guardian may bring a civil action pursuant to this section on behalf of a minor or ward in the actionable material.(c) Upon receipt of notice from the person in the actionable material, a person or entity distributing actionable material shall immediately remove the material or disable its distribution, and all copies shall be destroyed or returned to the person in the actionable material, without regard to any permission previously given by anyone for its creation or distribution.(d) An action brought pursuant to this section shall be commenced within 6 years of discovery of infringement, or within 10 years of the person in the actionable material having reached 18 years of age, whichever is longer.(e) (1) In addition to any other damages awarded, statutory damages in the amount of two hundred thousand dollars ($200,000) shall be awarded to the prevailing plaintiff to be paid by the defendant for failing to cease distribution of, the material within two business days after notice of claimed infringement of this section was received by the defendant.(2) If actionable material about which the defendant received notice is removed from electronic distribution, or access to them is disabled, within two business days of having received notice of claimed infringement under this section, civil liability or statutory damages under this section shall not be available.(3) The amount of the statutory damages awarded to a plaintiff pursuant to paragraph (1) shall be adjusted commencing on January 1, 2028, and every five years thereafter, to reflect an increase in the cost of living in California, as indicated by the annual average of the California Consumer Price Index.(f) A person shall not be liable for distributing the material pursuant to this section if the distribution is made in the course of reporting unlawful activity or is necessary to comply with a court order or other law.(g) (1) A person or entity that operates an online service or internet website that is available in California shall list, in a location available to the public via the service or on the internet website, an agent for notification of claimed violation of this section. (2) A person or entity that operates an online service or internet website that is available in California shall create a method to contact the agent listed pursuant to paragraph (1) for the purpose of reporting content that the user believes was erroneously removed as actionable material.(h) A civil injunction shall be available to block or interrupt the distribution, including electronic distribution, of actionable material.(i) In addition to the personal right of action set forth in subdivision (b), the Attorney General shall commence an action to enforce this section against a person or entity that engages in repeated violations, and shall, among other actions, levy fines commensurate with the statutory damages provided in subdivision (e), payable to the person in the actionable material.(j) The provisions of this section are cumulative to any other rights, duties, obligations, penalties, or crimes imposed under any other law.(k) 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.
52.9. (a) For purposes of this section:(1) Actionable material means a moving or still photograph in any technological form, regardless of whether it has been altered, of either of the following:(A) A person who was less than 18 years of age at the time it was created, or their identifiable likeness, in which they are the subject of obscene material.(B) A person who, when less than 18 years of age, was a victim of a violation of Section 1589, 1590, 1591, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of Title 18 of the United States Code, and would have a cause of action available to them under Section 2255 of Title 18 of the United States Code.(2) Electronic distribution means a transmission or sharing by electronic means including, but not limited to, transmission, posting for public view, or sharing via an internet website, platform, application, peer-to-peer file sharing, or other online mechanism.(3) Obscene material means material, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value.(b) (1) A person may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, and any other appropriate relief, including statutory damages and attorneys fees and costs, against a person or entity that distributes, including through electronic distribution, actionable material.(2) A parent or guardian may bring a civil action pursuant to this section on behalf of a minor or ward in the actionable material.(c) Upon receipt of notice from the person in the actionable material, a person or entity distributing actionable material shall immediately remove the material or disable its distribution, and all copies shall be destroyed or returned to the person in the actionable material, without regard to any permission previously given by anyone for its creation or distribution.(d) An action brought pursuant to this section shall be commenced within 6 years of discovery of infringement, or within 10 years of the person in the actionable material having reached 18 years of age, whichever is longer.(e) (1) In addition to any other damages awarded, statutory damages in the amount of two hundred thousand dollars ($200,000) shall be awarded to the prevailing plaintiff to be paid by the defendant for failing to cease distribution of, the material within two business days after notice of claimed infringement of this section was received by the defendant.(2) If actionable material about which the defendant received notice is removed from electronic distribution, or access to them is disabled, within two business days of having received notice of claimed infringement under this section, civil liability or statutory damages under this section shall not be available.(3) The amount of the statutory damages awarded to a plaintiff pursuant to paragraph (1) shall be adjusted commencing on January 1, 2028, and every five years thereafter, to reflect an increase in the cost of living in California, as indicated by the annual average of the California Consumer Price Index.(f) A person shall not be liable for distributing the material pursuant to this section if the distribution is made in the course of reporting unlawful activity or is necessary to comply with a court order or other law.(g) (1) A person or entity that operates an online service or internet website that is available in California shall list, in a location available to the public via the service or on the internet website, an agent for notification of claimed violation of this section. (2) A person or entity that operates an online service or internet website that is available in California shall create a method to contact the agent listed pursuant to paragraph (1) for the purpose of reporting content that the user believes was erroneously removed as actionable material.(h) A civil injunction shall be available to block or interrupt the distribution, including electronic distribution, of actionable material.(i) In addition to the personal right of action set forth in subdivision (b), the Attorney General shall commence an action to enforce this section against a person or entity that engages in repeated violations, and shall, among other actions, levy fines commensurate with the statutory damages provided in subdivision (e), payable to the person in the actionable material.(j) The provisions of this section are cumulative to any other rights, duties, obligations, penalties, or crimes imposed under any other law.(k) 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.
52.9. (a) For purposes of this section:(1) Actionable material means a moving or still photograph in any technological form, regardless of whether it has been altered, of either of the following:(A) A person who was less than 18 years of age at the time it was created, or their identifiable likeness, in which they are the subject of obscene material.(B) A person who, when less than 18 years of age, was a victim of a violation of Section 1589, 1590, 1591, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of Title 18 of the United States Code, and would have a cause of action available to them under Section 2255 of Title 18 of the United States Code.(2) Electronic distribution means a transmission or sharing by electronic means including, but not limited to, transmission, posting for public view, or sharing via an internet website, platform, application, peer-to-peer file sharing, or other online mechanism.(3) Obscene material means material, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value.(b) (1) A person may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, and any other appropriate relief, including statutory damages and attorneys fees and costs, against a person or entity that distributes, including through electronic distribution, actionable material.(2) A parent or guardian may bring a civil action pursuant to this section on behalf of a minor or ward in the actionable material.(c) Upon receipt of notice from the person in the actionable material, a person or entity distributing actionable material shall immediately remove the material or disable its distribution, and all copies shall be destroyed or returned to the person in the actionable material, without regard to any permission previously given by anyone for its creation or distribution.(d) An action brought pursuant to this section shall be commenced within 6 years of discovery of infringement, or within 10 years of the person in the actionable material having reached 18 years of age, whichever is longer.(e) (1) In addition to any other damages awarded, statutory damages in the amount of two hundred thousand dollars ($200,000) shall be awarded to the prevailing plaintiff to be paid by the defendant for failing to cease distribution of, the material within two business days after notice of claimed infringement of this section was received by the defendant.(2) If actionable material about which the defendant received notice is removed from electronic distribution, or access to them is disabled, within two business days of having received notice of claimed infringement under this section, civil liability or statutory damages under this section shall not be available.(3) The amount of the statutory damages awarded to a plaintiff pursuant to paragraph (1) shall be adjusted commencing on January 1, 2028, and every five years thereafter, to reflect an increase in the cost of living in California, as indicated by the annual average of the California Consumer Price Index.(f) A person shall not be liable for distributing the material pursuant to this section if the distribution is made in the course of reporting unlawful activity or is necessary to comply with a court order or other law.(g) (1) A person or entity that operates an online service or internet website that is available in California shall list, in a location available to the public via the service or on the internet website, an agent for notification of claimed violation of this section. (2) A person or entity that operates an online service or internet website that is available in California shall create a method to contact the agent listed pursuant to paragraph (1) for the purpose of reporting content that the user believes was erroneously removed as actionable material.(h) A civil injunction shall be available to block or interrupt the distribution, including electronic distribution, of actionable material.(i) In addition to the personal right of action set forth in subdivision (b), the Attorney General shall commence an action to enforce this section against a person or entity that engages in repeated violations, and shall, among other actions, levy fines commensurate with the statutory damages provided in subdivision (e), payable to the person in the actionable material.(j) The provisions of this section are cumulative to any other rights, duties, obligations, penalties, or crimes imposed under any other law.(k) 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.
52.9. (a) For purposes of this section:
(1) Actionable material means a moving or still photograph in any technological form, regardless of whether it has been altered, of either of the following:
(A) A person who was less than 18 years of age at the time it was created, or their identifiable likeness, in which they are the subject of obscene material.
(B) A person who, when less than 18 years of age, was a victim of a violation of Section 1589, 1590, 1591, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of Title 18 of the United States Code, and would have a cause of action available to them under Section 2255 of Title 18 of the United States Code.
(2) Electronic distribution means a transmission or sharing by electronic means including, but not limited to, transmission, posting for public view, or sharing via an internet website, platform, application, peer-to-peer file sharing, or other online mechanism.
(3) Obscene material means material, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value.
(b) (1) A person may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, and any other appropriate relief, including statutory damages and attorneys fees and costs, against a person or entity that distributes, including through electronic distribution, actionable material.
(2) A parent or guardian may bring a civil action pursuant to this section on behalf of a minor or ward in the actionable material.
(c) Upon receipt of notice from the person in the actionable material, a person or entity distributing actionable material shall immediately remove the material or disable its distribution, and all copies shall be destroyed or returned to the person in the actionable material, without regard to any permission previously given by anyone for its creation or distribution.
(d) An action brought pursuant to this section shall be commenced within 6 years of discovery of infringement, or within 10 years of the person in the actionable material having reached 18 years of age, whichever is longer.
(e) (1) In addition to any other damages awarded, statutory damages in the amount of two hundred thousand dollars ($200,000) shall be awarded to the prevailing plaintiff to be paid by the defendant for failing to cease distribution of, the material within two business days after notice of claimed infringement of this section was received by the defendant.
(2) If actionable material about which the defendant received notice is removed from electronic distribution, or access to them is disabled, within two business days of having received notice of claimed infringement under this section, civil liability or statutory damages under this section shall not be available.
(3) The amount of the statutory damages awarded to a plaintiff pursuant to paragraph (1) shall be adjusted commencing on January 1, 2028, and every five years thereafter, to reflect an increase in the cost of living in California, as indicated by the annual average of the California Consumer Price Index.
(f) A person shall not be liable for distributing the material pursuant to this section if the distribution is made in the course of reporting unlawful activity or is necessary to comply with a court order or other law.
(g) (1) A person or entity that operates an online service or internet website that is available in California shall list, in a location available to the public via the service or on the internet website, an agent for notification of claimed violation of this section.
(2) A person or entity that operates an online service or internet website that is available in California shall create a method to contact the agent listed pursuant to paragraph (1) for the purpose of reporting content that the user believes was erroneously removed as actionable material.
(h) A civil injunction shall be available to block or interrupt the distribution, including electronic distribution, of actionable material.
(i) In addition to the personal right of action set forth in subdivision (b), the Attorney General shall commence an action to enforce this section against a person or entity that engages in repeated violations, and shall, among other actions, levy fines commensurate with the statutory damages provided in subdivision (e), payable to the person in the actionable material.
(j) The provisions of this section are cumulative to any other rights, duties, obligations, penalties, or crimes imposed under any other law.
(k) 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.
(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 others 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 attorneys 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 plaintiffs name and other identifying characteristics excluded or redacted. The court shall keep the plaintiffs 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 plaintiffs name and other identifying characteristics excluded or redacted. The court shall keep the plaintiffs 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)For purposes of this subdivision, the following definitions apply:
(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 plaintiffs 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 partys 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 plaintiffs 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).