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SB-53 Unsolicited images.(2021-2022)

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Date Published: 04/29/2021 09:00 PM
SB53:v96#DOCUMENT

Amended  IN  Senate  April 29, 2021
Amended  IN  Senate  April 13, 2021
Amended  IN  Senate  March 05, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 53


Introduced by Senator Leyva
(Principal coauthor: Senator Gonzalez)
(Principal coauthor: Assembly Member Lorena Gonzalez)
(Coauthors: Senators Limón and Rubio)
(Coauthors: Assembly Members Aguiar-Curry, Petrie-Norris, and Luz Rivas)

December 07, 2020


An act to add Section 1708.88 to the Civil Code, and to add Section 314.5 to the Penal Code, relating to unsolicited images.


LEGISLATIVE COUNSEL'S DIGEST


SB 53, as amended, Leyva. Unsolicited images.
(1) Existing law makes it a crime for a person to willfully and lewdly expose their private parts in a public place where there are other persons present who may be offended or annoyed.
This bill would make it a crime for a person to knowingly send an unsolicited image by electronic means means, directed to another person, depicting any person engaging in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or masturbation or depicting the exposed genitals or anus of any person. The bill would make the crime punishable as an infraction by a fine of not exceeding $250 for a first offense and $750 not exceeding $500 for a 2nd or subsequent offense. By creating a new crime, this bill would impose a state-mandated local crime.
(2) Existing law creates a private cause of action against a person who intentionally distributes material that exposes an intimate body part of another person or shows that other person engaging in sexual conduct if the person knew that the other person had a reasonable expectation that the material would remain private.
This bill would create a private cause of action against a person who knowingly sends an unsolicited image, as specified, by electronic means depicting any person engaging in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or masturbation or depicting the exposed genitals or anus of any person. The bill would entitle the plaintiff to recover economic and noneconomic damages or statutory damages of a sum not less than $1,500 but not more than $30,000, as well as punitive damages, reasonable attorney’s fees and costs, and other available relief, including injunctive relief, as specified.
(3) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1708.88 is added to the Civil Code, to read:

1708.88.
 (a) A private cause of action lies against a person who knowingly sends an image, that the person knows or reasonably should know is unsolicited, by electronic means, depicting a person engaging in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or masturbation or depicting the exposed genitals or anus of any person.
(b) For purposes of this section, an image is “unsolicited” if the recipient has not requested the image, has not consented to its transmittal, or has expressly forbidden its transmittal. An “image” includes, but is not limited to, a moving visual image.
(c) (1) A prevailing plaintiff who suffers harm as a result of receiving an image in violation of subdivision (a) may recover economic and noneconomic damages proximately caused by the transmittal of the image, including damages for emotional distress.
(2) A prevailing plaintiff who suffers harm as a result of receiving an image, the transmittal of which had been expressly forbidden by the plaintiff, in violation of subdivision (a), may recover the following:
(A) Economic and noneconomic damages proximately caused by the sending of the image, including damages for emotional distress.
(B) Upon request of the plaintiff at any time before the final judgment is rendered, the plaintiff may, in lieu of those damages specified in subparagraph (A), recover an award of statutory damages of a sum of not less than one thousand five hundred dollars ($1,500) but not more than thirty thousand dollars ($30,000).
(C) Punitive damages.
(D) Reasonable attorney’s fees and costs.
(E) Any other available relief, including injunctive relief.
(3) The remedies provided by this section are cumulative and shall not be construed as restricting a remedy that is available under any other law.
(d) This section does not apply to any of the following:
(1) An internet service provider, mobile data provider, or operator of an online or mobile application, to the extent that the entity is transmitting, routing, or providing connections for electronic communications initiated by or at the direction of another person.
(2) Any service that transmits images or audiovisual works, including, without limitation, an on-demand, subscription, or advertising-supported service.
(3) A health care provider transmitting an image for a legitimate medical purpose.

SEC. 2.

 Section 314.5 is added to the Penal Code, to read:

314.5.
 (a) It is unlawful for a person to knowingly send an unsolicited image by electronic means means, directed to another person, depicting a person engaging in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or masturbation or depicting the exposed genitals or anus of any person.
(b) For purposes of this section, an image is “unsolicited” if the recipient has expressly forbidden its transmittal. notified the sender that its transmittal is forbidden. An “image” includes, but is not limited to, a moving visual image.
(c) A violation of this section is an infraction, punishable by a fine not to exceed two-hundred-fifty-dollar two hundred fifty dollars ($250) fine for a first offense, and by a seven-hundred-fifty-dollar ($750) fine not to exceed five hundred dollars ($500) for a second or subsequent offense.
(d) This section does not apply to any of the following:
(1) An internet service provider, mobile data provider, or operator of an online or mobile application, to the extent that the entity is transmitting, routing, or providing connections for electronic communications initiated by or at the direction of another person.
(2) Any service that transmits images or audiovisual works, including, without limitation, an on-demand, subscription, or advertising-supported service.
(3) A health care provider transmitting an image for a legitimate medical purpose.
(e) This section does not preclude prosecution under any other law.

SEC. 3.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.