89R10017 JRR/BCH-D
By: Raymond H.B. No. 3694
A BILL TO BE ENTITLED
AN ACT
relating to the unlawful production or distribution of certain
sexually explicit media and to the removal of certain intimate
visual depictions published on online platforms without the consent
of the person depicted; increasing criminal penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act may be cited as the Exploitation
Protection Act.
SECTION 2. Subtitle C, Title 5, Business & Commerce Code, is
amended by adding Chapter 121 to read as follows:
CHAPTER 121. UNAUTHORIZED INTIMATE VISUAL DEPICTIONS
Sec. 121.001. DEFINITIONS. In this chapter:
(1) "Covered platform":
(A) means an Internet website, online service,
online application, or mobile application that:
(i) is publicly accessible and primarily
provides a forum for user-generated content, including messages,
videos, images, games, and audio files; or
(ii) is engaged in the business of
publishing, curating, hosting, or making available content of
intimate visual depictions; and
(B) does not include:
(i) an Internet service provider as defined
by Section 324.055;
(ii) electronic mail; or
(iii) an online service, application, or
website:
(a) that consists primarily of
content that is not user generated but is preselected by the
provider; and
(b) for which any chat, comments, or
interactive functionality is incidental to, directly related to, or
dependent on the provision described by Sub-subparagraph (a).
(2) "Identifiable individual" means an individual:
(A) who appears in whole or in part in an intimate
visual depiction; and
(B) whose face, likeness, or other
distinguishing characteristic is displayed in connection with the
intimate visual depiction.
(3) "Intimate area" has the meaning assigned by
Section 21.15, Penal Code.
(4) "Intimate visual depiction" means a depiction of:
(A) an identifiable individual engaged in sexual
conduct; or
(B) an intimate area of an identifiable
individual.
(5) "Sexual conduct" has the meaning assigned by
Section 21.16, Penal Code.
Sec. 121.002. APPLICABILITY TO INTIMATE VISUAL DEPICTIONS
IN PUBLIC PLACE. This chapter applies to an intimate visual
depiction of an identifiable individual in a public place, as
defined by Section 1.07, Penal Code, only if the individual did not:
(1) voluntarily display any intimate areas depicted;
or
(2) consent to the sexual conduct that is the subject
of the depiction.
Sec. 121.003. NOTICE AND REMOVAL OF UNAUTHORIZED INTIMATE
VISUAL DEPICTIONS. (a) A covered platform shall establish a
process by which an identifiable individual, or the individual's
authorized representative, may:
(1) notify the covered platform of an intimate visual
depiction of the identifiable individual that was published without
the consent of the identifiable individual; and
(2) submit a request for removal of the intimate
visual depiction.
(b) A notification and request for removal under Subsection
(a) must be in writing and must also include:
(1) an identification of, and information reasonably
sufficient for the covered platform to locate, the intimate visual
depiction of the identifiable individual;
(2) a brief statement that the identifiable individual
has a good faith belief that the individual did not consent to the
publication of the intimate visual depiction; and
(3) information sufficient to enable the covered
platform to contact the identifiable individual or the individual's
authorized representative.
(c) A covered platform shall provide a clear and conspicuous
disclosure, on the platform, of the notice and removal process
established under Subsection (a). The disclosure:
(1) must be in plain language;
(2) must contain the responsibilities of the covered
platform under Subsection (d);
(3) must provide the manner of submission of
notifications and requests for removal; and
(4) may be provided through a clear and conspicuous
link to another web page.
(d) On receiving a removal request in accordance with this
section from an identifiable individual, or the individual's
authorized representative, a covered platform shall, as soon as
practicable, but not later than 48 hours after receiving the
request:
(1) remove the intimate visual depiction; and
(2) make reasonable efforts to identify and remove any
known identical copies of the intimate visual depiction.
Sec. 121.004. DECEPTIVE TRADE PRACTICE. A violation of
this chapter is a deceptive trade practice under Subchapter E,
Chapter 17, and is actionable under that subchapter.
SECTION 3. The heading to Section 21.165, Penal Code, is
amended to read as follows:
Sec. 21.165. UNLAWFUL PRODUCTION OR DISTRIBUTION OF CERTAIN
SEXUALLY EXPLICIT MEDIA [VIDEOS].
SECTION 4. Section 21.165(a), Penal Code, is amended by
amending Subdivision (1) and adding Subdivision (3) to read as
follows:
(1) "Deep fake media [video]" means a visual depiction
[a video,] created or altered through [with] the use of software,
machine learning, artificial intelligence, or any other
computer-generated or technological means, including by adapting,
modifying, manipulating, or altering an authentic visual depiction
manually or through an automated process [intent to deceive], that
appears to a reasonable person to depict a real person,
indistinguishable from an authentic visual depiction of the real
person, performing an action that did not occur in reality.
(3) "Visual depiction" means a photograph, motion
picture film, videotape, digital image or video, or other visual
recording.
SECTION 5. Section 21.165, Penal Code, is amended by
amending Subsections (b) and (c) and adding Subsections (b-1),
(c-1), and (c-2) to read as follows:
(b) A person commits an offense if, without the effective
consent of the person appearing to be depicted, the person
knowingly produces or distributes by electronic means [a] deep fake
media [video] that appears to depict the person:
(1) with visible computer-generated intimate parts or
with the visible intimate parts of another human being as the
intimate parts of the person; or
(2) engaging in sexual conduct in which the person did
not engage [with the person's intimate parts exposed or engaged in
sexual conduct].
(b-1) Consent required by Subsection (b) is valid only if
the person appearing to be depicted knowingly and voluntarily
signed a written agreement that was drafted in plain language. The
agreement must include:
(1) a general description of the deep fake media; and
(2) if applicable, the audiovisual work into which the
deep fake media will be incorporated.
(c) An offense under this section is a state jail felony,
except that the offense is a felony of the third degree if it is
shown on the trial of the offense that:
(1) the person appearing to be depicted is younger
than 18 years of age; or
(2) the actor has been previously convicted of an
offense under this section [Class A misdemeanor].
(c-1) It is not a defense to prosecution under this section
that the deep fake media:
(1) contains a disclaimer stating that the media was
unauthorized or that the person appearing to be depicted did not
participate in the creation or development of the deep fake media;
or
(2) indicates, through a label or otherwise, that the
depiction is not authentic.
(c-2) It is an affirmative defense to prosecution under this
section that the production or distribution of the deep fake media
occurs in the course of:
(1) lawful and common practices of law enforcement or
medical treatment;
(2) reporting unlawful activity; or
(3) a legal proceeding, if the production or
distribution is permitted or required by law.
SECTION 6. The changes in law made by this Act to Section
21.165, Penal Code, apply only to an offense committed on or after
the effective date of this Act. An offense committed before the
effective date of this Act is governed by the law in effect on the
date the offense was committed, and the former law is continued in
effect for that purpose. For purposes of this section, an offense
was committed before the effective date of this Act if any element
of the offense occurred before that date.
SECTION 7. (a) Except as provided by Subsection (b) of this
section, this Act takes effect September 1, 2025.
(b) Chapter 121, Business & Commerce Code, as added by this
Act, takes effect September 1, 2026.