By: Garcia, et al. S.B. No. 1135
(González)
A BILL TO BE ENTITLED
AN ACT
relating to civil and criminal liability for the unlawful
disclosure or promotion of certain intimate visual material;
creating an offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act shall be known as the Relationship
Privacy Act.
SECTION 2. Title 4, Civil Practice and Remedies Code, is
amended by adding Chapter 98B to read as follows:
CHAPTER 98B. UNLAWFUL DISCLOSURE OR PROMOTION OF INTIMATE VISUAL
MATERIAL
Sec. 98B.001. DEFINITIONS. In this chapter:
(1) "Intimate parts," "promote," "sexual conduct,"
and "visual material" have the meanings assigned by Section 21.16,
Penal Code.
(2) "Intimate visual material" means visual material
that depicts a person:
(A) with the person's intimate parts exposed; or
(B) engaged in sexual conduct.
Sec. 98B.002. LIABILITY FOR UNLAWFUL DISCLOSURE OR
PROMOTION OF CERTAIN INTIMATE VISUAL MATERIAL. (a) A defendant is
liable, as provided by this chapter, to a person depicted in
intimate visual material for damages arising from the disclosure of
the material if:
(1) the defendant discloses the intimate visual
material without the effective consent of the depicted person;
(2) the intimate visual material was obtained by the
defendant or created under circumstances in which the depicted
person had a reasonable expectation that the material would remain
private;
(3) the disclosure of the intimate visual material
causes harm to the depicted person; and
(4) the disclosure of the intimate visual material
reveals the identity of the depicted person in any manner,
including through:
(A) any accompanying or subsequent information
or material related to the intimate visual material; or
(B) information or material provided by a third
party in response to the disclosure of the intimate visual
material.
(b) A defendant is liable, as provided by this chapter, to a
person depicted in intimate visual material for damages arising
from the promotion of the material if, knowing the character and
content of the material, the defendant promotes intimate visual
material described by Subsection (a) on an Internet website or
other forum for publication that is owned or operated by the
defendant.
Sec. 98B.003. DAMAGES. (a) A claimant who prevails in a
suit under this chapter shall be awarded:
(1) actual damages, including damages for mental
anguish;
(2) court costs; and
(3) reasonable attorney's fees.
(b) In addition to an award under Subsection (a), a claimant
who prevails in a suit under this chapter may recover exemplary
damages.
Sec. 98B.004. INJUNCTIVE RELIEF. (a) A court in which a
suit is brought under this chapter, on the motion of a party, may
issue a temporary restraining order or a temporary or permanent
injunction to restrain and prevent the disclosure or promotion of
intimate visual material with respect to the person depicted in the
material.
(b) A court that issues a temporary restraining order or a
temporary or permanent injunction under Subsection (a) may award to
the party who brought the motion damages in the amount of:
(1) $1,000 for each violation of the court's order or
injunction, if the disclosure or promotion of intimate visual
material is wilful or intentional; or
(2) $500 for each violation of the court's order or
injunction, if the disclosure or promotion of intimate visual
material is not wilful or intentional.
Sec. 98B.005. CAUSE OF ACTION CUMULATIVE. The cause of
action created by this chapter is cumulative of any other remedy
provided by common law or statute.
Sec. 98B.006. JURISDICTION. A court has personal
jurisdiction over a defendant in a suit brought under this chapter
if:
(1) the defendant resides in this state;
(2) the claimant who is depicted in the intimate
visual material resides in this state;
(3) the intimate visual material is stored on a server
that is located in this state; or
(4) the intimate visual material is available for view
in this state.
Sec. 98B.007. LIBERAL CONSTRUCTION AND APPLICATION;
CERTAIN CONDUCT EXCEPTED. (a) This chapter shall be liberally
construed and applied to promote its underlying purpose to protect
persons from, and provide adequate remedies to victims of, the
disclosure or promotion of intimate visual material.
(b) This chapter does not apply to a claim brought against
an interactive computer service, as defined by 47 U.S.C. Section
230, for a disclosure or promotion consisting of intimate visual
material provided by another person.
SECTION 3. Chapter 21, Penal Code, is amended by adding
Section 21.16 to read as follows:
Sec. 21.16. UNLAWFUL DISCLOSURE OR PROMOTION OF INTIMATE
VISUAL MATERIAL. (a) In this section:
(1) "Intimate parts" means the naked genitals, pubic
area, anus, buttocks, or female nipple of a person.
(2) "Promote" means to procure, manufacture, issue,
sell, give, provide, lend, mail, deliver, transfer, transmit,
publish, distribute, circulate, disseminate, present, exhibit, or
advertise or to offer or agree to do any of the above.
(3) "Sexual conduct" means sexual contact, actual or
simulated sexual intercourse, deviate sexual intercourse, sexual
bestiality, masturbation, or sadomasochistic abuse.
(4) "Simulated" means the explicit depiction of sexual
conduct that creates the appearance of actual sexual conduct and
during which a person engaging in the conduct exhibits any
uncovered portion of the breasts, genitals, or buttocks.
(5) "Visual material" means:
(A) any film, photograph, videotape, negative,
or slide or any photographic reproduction that contains or
incorporates in any manner any film, photograph, videotape,
negative, or slide; or
(B) any disk, diskette, or other physical medium
that allows an image to be displayed on a computer or other video
screen and any image transmitted to a computer or other video screen
by telephone line, cable, satellite transmission, or other method.
(b) A person commits an offense if:
(1) without the effective consent of the depicted
person, the person intentionally discloses visual material
depicting another person with the person's intimate parts exposed
or engaged in sexual conduct;
(2) the visual material was obtained by the person or
created under circumstances in which the depicted person had a
reasonable expectation that the visual material would remain
private;
(3) the disclosure of the visual material causes harm
to the depicted person; and
(4) the disclosure of the visual material reveals the
identity of the depicted person in any manner, including through:
(A) any accompanying or subsequent information
or material related to the visual material; or
(B) information or material provided by a third
party in response to the disclosure of the visual material.
(c) A person commits an offense if the person intentionally
threatens to disclose, without the consent of the depicted person,
visual material depicting another person with the person's intimate
parts exposed or engaged in sexual conduct and the actor makes the
threat to obtain a benefit:
(1) in return for not making the disclosure; or
(2) in connection with the threatened disclosure.
(d) A person commits an offense if, knowing the character
and content of the visual material, the person promotes visual
material described by Subsection (b) on an Internet website or
other forum for publication that is owned or operated by the person.
(e) It is not a defense to prosecution under this section
that the depicted person:
(1) created or consented to the creation of the visual
material; or
(2) voluntarily transmitted the visual material to the
actor.
(f) It is an affirmative defense to prosecution under
Subsection (b) or (d) that:
(1) the disclosure or promotion is made in the course
of:
(A) lawful and common practices of law
enforcement or medical treatment;
(B) reporting unlawful activity; or
(C) a legal proceeding, if the disclosure or
promotion is permitted or required by law;
(2) the disclosure or promotion consists of visual
material depicting in a public or commercial setting only a
person's voluntary exposure of:
(A) the person's intimate parts; or
(B) the person engaging in sexual conduct; or
(3) the actor is an interactive computer service, as
defined by 47 U.S.C. Section 230, and the disclosure or promotion
consists of visual material provided by another person.
(g) An offense under this section is a Class A misdemeanor.
(h) If conduct that constitutes an offense under this
section also constitutes an offense under another law, the actor
may be prosecuted under this section, the other law, or both.
SECTION 4. (a) Chapter 98B, Civil Practice and Remedies
Code, as added by this Act, applies only to a cause of action that
accrues on or after the effective date of this Act. A cause of
action that accrues before the effective date of this Act is
governed by the law in effect immediately before that date, and that
law is continued in effect for that purpose.
(b) Section 21.16, Penal Code, as added by this Act, applies
to visual material disclosed or promoted, or threatened to be
disclosed, on or after the effective date of this Act, regardless of
whether the visual material was created or transmitted to the actor
before, on, or after that date.
SECTION 5. This Act takes effect September 1, 2015.