Bills We Tracked 2016

Present law requires that such offerings must be its primary business.

Read the legal memo we filed on H.B. 167 »

A “private image” is defined as a picture containing nudity, sexual activity or act of sexual excitement.

The person does not need to be recognizable in the image.

There’s no exception for newsworthy images.

Present law requires that such offerings must be its primary business.

It is a companion to H.B. 167

Read the legal memo we filed on S.B. 222 »

It then bars anyone from electronically communicating with the contact point to advertise a product that is illegal for a minor to buy (booze, butts and who knows what else) or for material harmful to minors.

Anyone wishing to advertise for those products must have their contact list scrubbed to remove any contact points on the do not contact list. The list must be scrubbed monthly.

There is an elaborate system to allow someone to send to a blocked address if an adult uses and verifies his or her age.

Anyone who violates the law is subject to a civil action by the parent or guardian of the minor. A court may award actual damages or $1,000, whichever is greater plus legal fees.

There is an exception for some filming within 20 feet if on private property, unless the law enforcement officer denies permission to do so.

A violation is subject to a $300 fine.

The bill adds that it should not be construed as a general right to film law enforcement activity outside of the 20-foot radius.

• (a)(1) It is not a violation of this subchapter if the name, voice, signature, photograph, or likeness of an individual is used:
  1. In connection with a news, public affairs, or sports broadcast, including the promotion of and advertising for a sports broadcast, an account of public interest, or a political campaign;
  2. In:
     1. Any play, book, magazine, newspaper, musical composition, visual work, work of art, audiovisual work, radio or television program if it is fictional or nonfictional entertainment, or a dramatic, literary, or musical work;
     2. A work of political, public interest, or newsworthy value including a comment, criticism, parody, satire, or a transformative creation of a work of authorship; or
     3. An advertisement or commercial announcement for any of the works described in subdivision (a)(1)(A) of this section or this subdivision (a)(1)(B);
  3. In a photograph or likeness where the individual appears as a member of the public, an attendee of a photographed event, or in a public place, and the individual is not named;
  4. By an institution of higher education or by a nonprofit organization, club, or supporting foundation that is authorized by the institution of higher education and established solely to advance the purposes of the institution of higher education if:
     1. The use is for educational purposes or to promote the institution of higher education and its educational, athletic, or other institutional objectives; and
     2. The individual is or was affiliated with the institution, including without limitation as a:
        1. Student or member of the faculty or staff;
        2. Donor or campus visitor; or
        3. Contractor, subcontractor, or employee;
  5. By any person practicing the profession of photography or his or her representative:
     1. To exhibit and display photographs in a personal portfolio through physical media or digital media unless the exhibit and display are continued by the person practicing the profession of photography after written notice objecting to the exhibit and display has been given by the individual or by his or her representative;
     2. To distribute photographs for license and sale or other transfer to third parties or to promote or advertise such activities; and
     3. To provide yearbooks to an educational institution or photographs for school publications; or
  6. By a service provider of a system or network, if the service provider:
     1. Does not have actual knowledge that a photograph or likeness on the system or network is in violation of this subchapter; or
     2. In the absence of such actual knowledge, is not aware of facts or circumstances from which a violation of this subchapter is apparent.

• (a)(1) It is not a violation of this subchapter if the name, voice, signature, photograph, or likeness of an individual is used:
  1. In connection with a news, public affairs, or sports broadcast, including the promotion of and advertising for a sports broadcast, an account of public interest, or a political campaign;
  2. In:
     1. Any play, book, magazine, newspaper, musical composition, visual work, work of art, audiovisual work, radio or television program if it is fictional or nonfictional entertainment, or a dramatic, literary, or musical work;
     2. A work of political, public interest, or newsworthy value including a comment, criticism, parody, satire, or a transformative creation of a work of authorship; or
     3. An advertisement or commercial announcement for any of the works described in subdivision (a)(1)(A) of this section or this subdivision (a)(1)(B);
  3. In a photograph or likeness where the individual appears as a member of the public, an attendee of a photographed event, or in a public place, and the individual is not named;
  4. By an institution of higher education or by a nonprofit organization, club, or supporting foundation that is authorized by the institution of higher education and established solely to advance the purposes of the institution of higher education if:
     1. The use is for educational purposes or to promote the institution of higher education and its educational, athletic, or other institutional objectives; and
     2. The individual is or was affiliated with the institution, including without limitation as a:
        1. Student or member of the faculty or staff;
        2. Donor or campus visitor; or
        3. Contractor, subcontractor, or employee;
  5. By any person practicing the profession of photography or his or her representative:
     1. To exhibit and display photographs in a personal portfolio through physical media or digital media unless the exhibit and display are continued by the person practicing the profession of photography after written notice objecting to the exhibit and display has been given by the individual or by his or her representative;
     2. To distribute photographs for license and sale or other transfer to third parties or to promote or advertise such activities; and
     3. To provide yearbooks to an educational institution or photographs for school publications; or
  6. By a service provider of a system or network, if the service provider:
     1. Does not have actual knowledge that a photograph or likeness on the system or network is in violation of this subchapter; or
     2. In the absence of such actual knowledge, is not aware of facts or circumstances from which a violation of this subchapter is apparent.

Read the legal memo we filed on A.B. 538 »

1. The court where the person was sentenced for the crime.
2. The Department of Corrections and Rehabilitation, if the person is currently under the jurisdiction of that department by reason of:
   1. being incarcerated in a state prison, a facility under the jurisdiction of the Division of Juvenile Justice, or a state hospital,
   2. on parole, or
   3. for any other reason.
3. The county sheriff, if the person is currently under the jurisdiction of the county by reason of
   1. being incarcerated in a county jail,
   2. on probation, postrelease community supervision, or mandatory supervision, or
   3. for any other reason.
4. The California Victim Compensation and Government Claims Board.
5. The district attorney that prosecuted the relevant crime.
   1. The victim, if his or her contact information is reasonably available.
   2. If the victim is deceased, his or her next of kin, if known and if their contact information is readily available.

“Entertainment product” means a book, play, screen play, television show, movie, advertising campaign, or other similar product that is based, in whole or in part, on the criminal actions of the person being paid.

Read the legal memo we filed on A.B. 540 »

“Confidential communication” is defined as any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or before a government body proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

The bar on disclosure also applies to any person who aids, abets, employs, or conspires with a person or persons to unlawfully do, permit, or cause to disclose the contents of the conversation in any manner or in any media.

There is no protection for the media in the legislation.

Read the legal memo we filed on A.B. 1671 »

There is an exception for republication of otherwise lawful public material.

The image does not have to be previously published without being identifiable.

08/27/2015: The bill was amended to remove this provision.

Read the legal memo we filed on S.B. 676 »

The bill also allows erasure of certain postings by minors and privacy policies for websites.

In addition, there is a requirement that “book service providers” may not disclose or provide to the government any “book service information” absent a warrant or court order.

06/15/2015: S.B. 68 has been amended to remove the bar on marketing “sexually oriented” material.

It has been replaced by a bar on advertising any material which, “predominately appeals to the prurient, shameful, or morbid interest of minors, is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and taken as a whole lacks serious literary, artistic, political, social, or scientific value for minors.”

The definition mirrors the Miller/Ginsberg standard but is not limited to sexual material and could apply to a wide range of speech, such as violent content, that is fully protected for minors.

Read the legal memo we filed on S.B. 68 »

The present laws bars advertising for material that satisfied the three prongs of the Miller/Ginsberg test but did not include the limitation to sexually explicit content.

“Identifiable minor” means a person who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark, or other recognizable feature.

“Identifiable minor” means a person who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark, or other recognizable feature.

This is a companion to H.B. 7055.

Any public retirement system which holds such investments on July 1, 2015, shall divest itself of all such investments not later than July 1, 2016.

The legislation also bars state criminal justice agencies from posting arrest photos except as required by law to be posted.

These restrictions do not apply to conviction data and to cases if the defendant is not convicted because of “physical or mental disease, disorder or defect.”

Read the legal memo we filed on H.B. 529 »

Promoting pornography to a minor bars the dissemination to a minor, exhibition, sale of an admission ticket or allowing a minor to enter a movie theater if the content contains sexual content that appeals to a minor’s prurient interest in sex and, taken as a whole, lacks serious value.

A minor is anyone 16 years old or younger.

“A publisher or producer who obtains a written or electronic agreement from the advertiser that the advertiser will not advertise any service in violation of state or federal law shall be entitled to a rebuttable presumption of compliance with this section.”

Advertising includes in any newspaper or magazine, broadcasting commercials or distributing commercial messages through any electronic communication system, including but not limited to the Internet.

“Intimate areas” is defined by reference to another section. “Nude condition” is not defined.

Promoting pornography to a minor bars the dissemination to a minor, exhibition, sale of an admission ticket or allowing a minor to enter a movie theater if the content contains sexual content that appeals to a minor’s prurient interest in sex and, taken as a whole, lacks serious value.

A minor is anyone 16 years old or younger.

The bill is a companion to H.B. 1516.

The regulation of material that is indecent would broaden the existing law to include dialogue with words about sex or excretory functions.

The bill is similar to US H.B. 285 (Congresswoman Wagner’s version of the SAVE Act.)

It also makes it a disorderly conduct offense to refuse to provide a law enforcement agency or peace officer with that uploaded video upon request.

Existing law defines as harassment communication with another person in writing or by using a computer network or electronic communication with the intent to annoy, alarm or ridicule, but with no intent of legitimate communication.

“No intent of legitimate communication” is not defined.

A violation is a class B misdemeanor. There is also a cause of action granted to the victim to bring a civil cause of action to recover:

1. Actual damages,
2. Equitable relief, including injunctive relief,
3. Punitive damages,
4. Reasonable attorney’s fees and court costs,
5. Any other relief a court considers proper.

Subsection 4(b)(2) and (3) criminalizes the dissemination of material that describes sexual conduct of minors (subsection 4(b)(4) only applies to depictions).

Subsection 4(c) applies to the same material but is a higher level felony if other elements are met.

Subsection 4(d) makes illegal depictions of adults that lack serious value and drawings that are, by definition, not photographic images.

Subsection 4(e) criminalizes depictions of adults who appear to be minors, regardless of whether the depiction has serious value.

Read the legal memo we filed on S.B. 14 »

The bill does not explicitly apply the prohibition on dissemination by the Internet or other general distribution, but that is a reasonable reading of the law with these changes.

“Electronic communication device” is defined as a telephone, mobile telephone or other electronic device used to move information from one place to another.

Read the legal memo we filed on S.F. 2039 »

The bill does not explicitly apply the prohibition on dissemination by the Internet and other general distribution, but that is a reasonable reading of the law with these changes.

“Electronic communication device” is defined as a telephone, mobile telephone or other electronic device used to move information from one place to another.

Neither “nude” nor “state of undress” is defined in the bill or existing section of the law.

A violation is a felony.

03/18/2016: H.B. 2062 was amended to remove any references to non-consensual distribution of images.

There is an enhanced penalty if the distribution is done to gain anything of value, done with an intent to annoy or alarm, the image is paired with personally identifiable information or maintaining a website that contains the image.

No one may then send or cause to be sent to any contact point registered with the state a communication that has the primary purpose of advertising or promoting material harmful to minors or any good or service that a minor is prohibited from purchasing by law.

The state will then create a system to allow to scrub their contact list of addresses registered as minors.

05/27/2016: The bill was amended to include the intent to harass, threaten or intimidate.

“Profane material” is defined as any material including, but not limited to, t-shirts, other clothing, signs, displays, and any other matter, which includes language that is “vituperative, invective, blasphemous, or offensive.”

A violation of the section is subject to up to two years in prison, a $2,000 fine or both.

Nudity is defined as fully nude, partially nude or transparently clothed genitals, pubic area, anus or any portion of the breast of a female below the top of the areola.

06/15/2015: The bill was amended to limit it to images disseminated with an intent to harass, torment or threaten and the dissemination has no newsworthy or public purpose.

There is no limitation to images where the person had a reasonable expectation of privacy.

Read the legal memo we filed on L.D. 679 »

“Electronically transmit” includes, but not limited to, electronic mail or text messaging or through social media or a “community online forum.”

“Sexually explicit conduct” is not defined.

07/01/2015: The bill was amended to remove the section restricting the dissemination to minors of sexual material but that does not meet the Miller/Ginsberg test for what is illegal for minors.

Read the legal memo we filed on L.D. 1114 »

Read the legal memo we filed on H.B. 30 »

A first violation shall be punished by a fine of not less than $1,000 or imprisonment for not less than 1 year, or by both such fine and imprisonment.

Neither substantial emotional distress nor humiliation are defined in the legislation.

There is no reasonable expectation of privacy element of the crime.

There are no exceptions for commercial or voluntary nudity or for newsworthy images.

The Attorney General then determines if the contract was entered into for the unique knowledge of the crime or notoriety related to it. If the Attorney General deems that it is, the state keeps the bonded money to pay any civil damages related to the crime. After all claims are paid, the state is entitled to keep 50 percent of the balance of the bond for the victim compensation fund. The other half is to be returned to the contracting party.

A “defendant” is defined as anyone charged with or convicted of a crime, or has voluntarily admitted to having committed the crime. Failure to do so is subject to a civil penalty equal to the value of the contract. If the failure is willful, it is subject to a civil fine of up to three times the value of the contract.

Read the legal memo we filed on H.B. 1399 »

There’s an exception for disclosure for the purpose of “any bona fide and lawful public purpose.”

A violation is subject to imprisonment in the house of correction for not more than 2 1/2 years or in the state prison for not more than 5 years or by a fine of not more than $10,000, or by both such fine and imprisonment.

Read the legal memo we filed on H.B. 1513 »

There is an exception for media that is similar to the Right of Publicity exemption language: “The use of sexually explicit visual material that is part of a news report or commentary or an artistic or expressive work, such as a performance, work of art, literary work, theatrical work, musical work, motion picture, film, or audiovisual work.”

Read the legal memo we filed on S.B. 508 »

“Intimate parts” means the fully unclothed, partially unclothed, or transparently clothed genitals, pubic area, anus of the person depicted, or if the person is a female, a partially or fully exposed nipple.

Sexual activity is defined to include intentional touching of a person’s “intimate parts.”

There is an exception for distribution of an image that “relates to a matter of public concern and dissemination serves a lawful public purpose.”

There are enhanced penalties if the person who disseminates the image does so:

• if the person depicted suffers financial loss;
• the dissemination is done with intent to profit;
• the person maintains a web site for the purpose of disseminating the image;
• the person posts the image on a pornographic Web site;
• or the person includes “personal information” of the person depicted.

“Personal information” is defined to include a person’s full name, last name and first initial, first name and last initial, social media address, or physical address.

A violation would also be deemed an act of harassment that allows a court to issue an injunction. It is also classified as a “qualified domestic violence-related offense.”

H.F. 2741 also creates a separate private cause of action for acts that would violate the criminal section. Under the cause of action, the person depicted in the image can be awarded general and special damages, including mental anguish; an amount equal to any profit made from the dissemination, a civil penalty of up to $10,000; and reasonable attorney’s fees.

The court may also impose a temporary or permanent injunction or restraining order to prevent further harm to the plaintiffs. Failure to comply can be subject to a fine of $1,000 a day.

The bill was amended to remove any exception for non-commercial uses.

“Intimate parts” means the fully unclothed, partially unclothed, or transparently clothed genitals, pubic area, anus of the person depicted, or if the person is a female, a partially or fully exposed nipple.

Sexual activity is defined to include intentional touching of a person’s “intimate parts.”

There is an exception for distribution of an image that “relates to a matter of public concern and dissemination serves a lawful public purpose.”

There are enhanced penalties if the person who disseminates the image does so:

• if the person depicted suffers financial loss;
• the dissemination is done with intent to profit;
• the person maintains a web site for the purpose of disseminating the image;
• the person posts the image on a pornographic Web site;
• or the person includes “personal information” of the person depicted.

“Personal information” is defined to include a person’s full name, last name and first initial, first name and last initial, social media address, or physical address.

A violation would also be deemed an act of harassment that allows a court to issue an injunction. It is also classified as a “qualified domestic violence-related offense.”

S.F. 2713 also creates a separate private cause of action for acts that would violate the criminal section. Under the cause of action, the person depicted in the image can be awarded general and special damages, including mental anguish; an amount equal to any profit made from the dissemination, a civil penalty of up to $10,000; and reasonable attorney’s fees.

The court may also impose a temporary or permanent injunction or restraining order to prevent further harm to the plaintiffs. Failure to comply can be subject to a fine of $1,000 a day.

The bill was amended to remove any exception for non-commercial uses.

There is an exception for the dissemination of such an image for a lawful public purpose.

It then bars anyone from knowingly sending a communication to a contact point that has been on the list for more than 30 calendar days if the primary purpose of the communication is to directly or indirectly advertise or otherwise link to a communication that advertises a product or service that a minor is prohibited by law from purchasing or that contains or has the primary purpose of advertising or promoting material that is harmful to minors.

Anyone wishing to advertise for those products must pay to have their contact list scrubbed to remove anyone on the do not contact list. The list must be scrubbed monthly.

There is an elaborate system to allow someone to send to a blocked address if an adult uses and verifies his or her age.

Anyone who violates the law is subject to a civil action by the parent or guardian of the minor.

The bill is identical to S.B. 1031.

It then bars anyone from knowingly sending a communication to a contact point that has been on the list for more than 30 calendar days if the primary purpose of the communication is to directly or indirectly advertise or otherwise link to a communication that advertises a product or service that a minor is prohibited by law from purchasing or that contains or has the primary purpose of advertising or promoting material that is harmful to minors.

Anyone wishing to advertise for those products must pay to have their contact list scrubbed to remove anyone on the do not contact list. The list must be scrubbed monthly.

There is an elaborate system to allow someone to send to a blocked address if an adult uses and verifies his or her age.

Anyone who violates the law is subject to a civil action by the parent or guardian of the minor.

It makes it a crime to contact someone electronically with the intent to annoy or offend (or terrify, intimidate, threaten or harass) the person and use indecent, lewd, lascivious, or obscene language or suggest any indecent, lewd, or lascivious act.

The use of indecent, lewd, or obscene language or the making of a threat or lewd suggestion is deemed to be prima facie evidence of intent to annoy or offend (terrify, intimidate, threaten or harass).

“Electronic communication device” is defined as any device which, in its ordinary and intended use, transmits by electronic means writings, sounds, visual images, or data of any nature to another electronic communication device.

Read the legal memo we filed on L.B. 892 »

“Intimate parts” is defined to include genitals and breasts of a female if nude or in clothes that are transparent.

“Sexual activity” includes touching of the clothed genitals, anus or female breast. It also includes “bondage” or “fetter” regardless of whether they are in a sexual context. There’s no definition of “fetter.”

There is an exception if the dissemination is for a lawful purpose, but the term is not defined.

A violation is a Class B felony.

12/07/2016: Amended to require an intent to harass, threaten or coerce.

Read the legal memo we filed on S.B. 465 »

The bill would bar marketing material that is obscene for minors but NJ’s law is clearly unconstitutional and woefully out of date.

Instead of using the three prongs of the Miller/Ginsberg test, it defines obscene material as:

1. “Obscene material” means any description, narrative account, display, depiction of a specified anatomical area or specified sexual activity contained in, or consisting of, a picture or other representation, publication, sound recording, live performance or film, which by means of posing, composition, format or animated sensual details, emits sensuality with sufficient impact to concentrate prurient interest on the area or activity.
2. “Obscene film” means any motion picture film or preview or trailer to a film, not including newsreels portraying actual current events or pictorial news of the day, in which a scene, taken by itself:
   1. Depicts a specified anatomical area or specified sexual activity, or the simulation of a specified sexual activity, or verbalization concerning a specified sexual activity; and
   2. Emits sensuality sufficient, in terms of the duration and impact of the depiction, to appeal to prurient interest.
3. “Specified anatomical area” means:
   1. Less than completely and opaquely covered human genitals, pubic region, buttock or female breasts below a point immediately above the top of the areola; or
   2. Human male genitals in a discernibly turgid state, even if covered.

“Social networking website” is defined as a website which is accessible to third parties and on which users under the age of 18 located in New Jersey may post personal information and through which third parties may communicate with such users.

“Sexually offensive communication” includes any communication that meets New Jersey’s definition of obscene for minors. The definition is clearly unconstitutional. It is defined “any description, narrative account, display or depiction of a specified anatomical area or specified sexual activity, which by means of posing, composition, format or animated sensual details, emits sensuality with sufficient impact to concentrate prurient interest on the area or activity.” There is an additional definition for scenes in films, taken by themselves, if they meet a two part test:

1. Depicts a specified anatomical area or specified sexual activity, or the simulation of a specified sexual activity, or verbalization concerning a specified sexual activity; and
2. Emits sensuality sufficient, in terms of the duration and impact of the depiction, to appeal to prurient interest.

Anyone who violates this section is liable to the recipient of the email for $5,000 plus legal fees or actual damages, whichever is greater.

“Actual damages” shall consist of “compensatory” and punitive damages and costs of suit, including reasonable attorney’s fees. “Compensatory damages” may include, but are not limited to, damages for pain and suffering, medical expenses, emotional trauma, diminished childhood, diminished enjoyment of life, costs of counseling, and lost wages.

The person who sends the communication shall also be liable to the social networking site for $1,000 plus attorney’s fees.

In addition, a social networking website operator must revoke, in the most expedient time possible without unreasonable delay, the website access of any user or third party upon receipt of information that provides a reasonable basis to conclude that the user or third party violated this legislation.

However, a social networking website operator shall not be deemed to be in violation of subsection a. of this section if the operator maintains a reporting mechanism available to the user that meets the following requirements:

1. the social networking website displays, in a conspicuous location, a readily identifiable icon or link that enables a user or third party to report to the social networking website operator a sexually offensive or abusive communication transmitted through the social networking website;
2. the operator conducts a review, in the most expedient time possible without unreasonable delay, of any report by a user or third party, including investigation and referral to law enforcement if appropriate, and provides users and third parties with the opportunity to determine the status of the operator’s review or investigation of any such report; and
3. the mechanism provides the means to enable a user to block communications from third parties whom users allege have transmitted a sexually offensive or abusive communication.

The bill also bars sending any minor in New Jersey an “abusive communication,” which is defined as any communication which a reasonable person would believe is intended to threaten, intimidate or harass another person. There is no subjective intent element.

New Jersey’s “obscene for minors” law is unconstitutionally overbroad in several respects.

A person who violates this section is liable to the social networking website operator in a civil action for damages of $1,000, plus attorney’s fees, for each violation.

A person who violates this section is also liable to the recipient of the communication in a civil action for damages in the amount of $5,000, plus attorney’s fees, or actual damages, whichever is greater.

Actual damages shall consist of compensatory and punitive damages plus reasonable attorney’s fees. Compensatory damages may include, but are not limited to, damages for pain and suffering, medical expenses, emotional trauma, diminished childhood, diminished enjoyment of life, costs of counseling, and lost wages.

It then bars anyone from knowingly sending a communication to a contact point that has been on the list for more than thirty calendar days if the primary purpose of the communication is to directly or indirectly advertise or otherwise link to a communication that advertises a product or service that a minor is prohibited by law from purchasing or that contains or has the primary purpose of advertising or promoting material that is harmful to minors.

Anyone wishing to advertise for those products must have their contact list scrubbed to remove any contact points on the do not contact list. The list must be scrubbed monthly.

There is an elaborate system to allow someone to send to a blocked address if an adult uses and verifies his or her age.

Anyone who violates the law is subject to a civil action by the parent or guardian of the minor. A court may award actual damages or $1,000, whichever is greater plus legal fees.

A person who consents to a picture being taken or possessed in a “private” or “confidential” relationship retains a reasonable expectation of privacy beyond the end of that relationship.

The person in the image does not have to be identifiable.

“Disclosure” is defined as any dissemination of the image. It does not exclude republishing of the image.

“Intimate parts” are defined as naked genitals, pubic area, buttocks or the nipple of an adult female.

The law would not apply to images of voluntary exposure in public or commercial settings.

There is no exception for newsworthy, historic or artistic images.

The bill is identical to A.B. 8214, which was sponsored by Assemblyman Braunstein last year.

“Sexual or other intimate parts” is not defined.

Neither “annoy” nor “alarm” is defined.

The person in the image does not have to be identifiable

This bill is the same as A.B. 8204 that Assemblywoman Gunther introduced in 2014.

There is an enhanced penalty if the dissemination is with the intent to cause serious emotional distress or to obtain profit.

Among the restrictions are material harmful to minors, which is defined in reference to the section of the New York law that was struck down in ALA v. Pataki.

The law also bars the use of information gathered about a specific minor to advertise to that minor.

It also allows minors registered to use a website to have content he or she generated to be removed or hidden.

Such a rating may contain, but shall not be limited to, depictions descriptive of, advocating, or glamorizing commission of violent crime, suicide, sodomy, rape, incest, bestiality, sadomasochism, any sexual activity in a violent context or encouraging murder, violent racism, religious violence, morbid violence or illegal use of drugs or alcohol.

Retailers must display such video games in an adults only section of the retail location.

“Rating” is defined as “the standard designation commonly used to inform parents about video games regarding listening and viewing by their children.”

Section 34 of the bill provides an exception to the right for certain expressive uses. It protects artistic and creative works and allows book, plays, magazines, newspapers, music, film, radio, television and other media to use a living or deceased individual’s name or likeness in a ranger of fictional and non-fictional works.

This exception for non-commercial works is very similar to such exceptions that have been included in almost every recent state law granting a right of publicity. However, the expressive use protection in Section 34 is not available if it meets three conditions: “the work does not contain an image or likeness that is primarily commercial, not transformative and is not otherwise protected by the First Amendment to the United States Constitution or New York Constitution.”

Read the legal memo we filed on A.B. 7904 »

“Pornographic magazines or materials” is defined as magazines or materials showing acts of sexual intercourse or acts of sexual perversion. The latter term is not defined. The bill specifically exempts bona fide medical photographs or materials.

“Annoy,” “alarm” and “harass” are not defined. “Sexual or other intimate parts” is also not defined in the bill.

The bill does not require that the person in the image be identifiable.

The bill is identical to S.B. 5946, which Senator Boyle introduced last year.

“Annoy,” “alarm” and “harass” are not defined. “Sexual or other intimate parts” is also not defined in the bill.

The bill does not require that the person in the image be identifiable.

The bill is identical to S.B. 5946, which Senator Boyle introduced last year.

“Intimate parts” is defined as genitals, pubic area, buttocks, or the nipple of an adult female.

A person who has consented to the capture or possession of an image within the context of a private or confidential relationship retains a reasonable expectation of privacy with regard to disclosure beyond that relationship.

There is no exception for newsworthiness or public interest.

Section 34 of the bill provides an exception to the right for certain expressive uses. It protects artistic and creative works and allows books, plays, magazines, newspapers, music, film, radio, television and other media to use a living or deceased individual’s name or likeness in a ranger of fictional and non-fictional works.

This exception for non-commercial works is very similar to such exceptions that have been included in almost every recent state law granting a right of publicity. However, the expressive use protection in Section 34 is not available if it meets three conditions: “the work does not contain an image or likeness that is primarily commercial, not transformative and is not otherwise protected by the First Amendment to the United States Constitution or New York Constitution.”

Read the legal memo we filed on S.B. 5650 »

“Sexual act” is defined as “sexual activity,” masturbation, an act involving a bodily substance that is performed for the purpose of sexual arousal or gratification or sado-masochistic abuse. “Sexual activity” is not defined.

There is an exception if the image is part of a “news report or commentary or an artistic or expressive work, such as a performance, work of art, literary work, theatrical work, musical work, motion picture, film, or audiovisual work.”

A first violation is a misdemeanor. A subsequent violation is a felony. In addition to any criminal penalty, the court may order the defendant to forfeit any income or other property obtained by disseminating the image. It can also order the forfeit of any property used to violate the law. This likely would include a website used to publish the image.

“Intimate parts” is defined as the fully unclothed, partially unclothed or transparently clothed genitals, pubic area or female adult nipple.

Sexual conduct is defined as sexual intercourse including genitals, anus or oral sex.

There is an exception for the dissemination of an image when it serves a lawful purpose.

A first violation is a misdemeanor. A second and subsequent violations are punishable as a felony subject to no less than one year in prison, a fine of $25,000 or both.

03/18/2016: Amended to bar charging a fee to remove an arrest photo.

A person who has consented to the capture or possession of an image within the context of a private or confidential relationship retains a reasonable expectation of privacy with regard to disclosure beyond that relationship.

There is an exception for images that serve a “bona fide and lawful purpose.”

A violation is punishable as a misdemeanor. However, a second or subsequent violation of this section, he or she shall be guilty of a felony punishable by no less than 1 year in prison, a fine of up to $100,000 or both.

Re-publishers are not liable unless they have actual knowledge that the picture was initially disseminated illegally.

There is a catchall that “constitutionally protected material” is exempted from the legislation.

Read the legal memo we filed on H.B. 5770 »

There is a second crime that bars a “third-party recipient” from distributing such an image if the person has actual knowledge of the image violating the previous elements. There is an exception to the legislation for the dissemination of such an image if it “serves a lawful purpose” or the image “constitutes a matter of public concern.”

A violation is subject to up to one year in prison.

Read the legal memo we filed on H.B. 7537 »

There is a catchall that “constitutionally protected material” is exempted from the legislation.

A violation is a felony subject to 3 years in prison, a fine of $3,000 or both.

Read the legal memo we filed on S.B. 625 »

Re-publishers are not liable unless they have actual knowledge that the picture was initially disseminated illegally under this section.

There is a catchall that “constitutionally protected material” is exempted from the legislation.

Read the legal memo we filed on S.B. 630 »

There is a second crime that bars a “third-party recipient” from distributing such an image if the person has actual knowledge of the image violating the previous elements. There is an exception to the legislation for the dissemination of such an image if it “serves a lawful purpose” or the image “constitutes a matter of public concern.”

A violation is subject to up to one year in prison.

This is identical to H.B. 7537.

Read the legal memo we filed on S.B. 2540 »

A violation is subject to 30 days in jail, a $500 fine or both.

The legislation also provides a cause of action against the publisher for failing to remove or change information that has been published.

Read the legal memo we filed on S.B. 255 »

1. Disclosing identity of informants not otherwise known;
2. The premature release of information to be used in a prospective law enforcement action;
3. Disclosing investigatory techniques not otherwise known outside the government;
4. By endangering the life, health, or property of any person; or
5. Disclosing any contents of intercepted wire, oral, or electronic communications not otherwise disclosed during a trial.

“Sexually explicit nudity” is defined as:

1. uncovered, or less than opaquely covered human genitals, pubic area, or buttocks, or the nipple or any portion of the areola of the human female breast; or
2. covered human male genitals in a discernibly turgid state.

Read the legal memo we filed on H.B. 1243 »

It also makes it illegal to communicate with a person or transmit or display an image without a legitimate purpose for the purpose of alarming, annoying, or embarrassing the person.

Communication is defined as a person contacts, transmits, or conveys a written or verbal thought or message to another person by means that includes any writing or in print publications; electronic means, display on or by means of any computer system; or posts to social media.

Companion to S.B. 2282.

“Intimate parts” is defined as the naked genitals, public area, anus, or post-pubescent nipple of a female.

“Sexual act” is defined to include but not be limited to masturbation, genital, anal, or oral sex, sexual penetration with an object, or the transfer or transmission of semen upon any part of a depicted person’s body.

It also makes it illegal to communicate with a person or transmit or display an image without a legitimate purpose for the purpose of alarming, annoying or embarrassing the person.

Communication is defined as a person contacts, transmits, or conveys a written or verbal thought or message to another person by means that includes any writing or in print publications; electronic means, display on or by means of any computer system; or posts to social media.

“Intimate parts” is defined as the naked genitals, public area, anus, or post-pubescent nipple of a female.

“Sexual act” is defined to include but not be limited to masturbation, genital, anal, or oral sex, sexual penetration with an object, or the transfer or transmission of semen upon any part of a depicted person’s body.

The bill is identical to H.B. 2299.

This would include dissemination of any material that included ads such as alternative newspapers.

The Director is granted authority to investigate and, where appropriate, refer for prosecution any violation of federal criminal law relating to or involving customs, trade, or import or export control of “pornography” as contraband or as an aspect of sex trafficking.

There is an exception for:

1. a customary and normal veterinary or agricultural husbandry practice;
2. the slaughter of animals for food;
3. hunting, trapping, fishing, predator control, or pest control;
4. medical or scientific research; or
5. necessary to protect the life of person or property of a person from a serious threat caused by an animal.

“Covered communication” is defined as a written, oral, or pictorial review, performance assessment of, or other similar analysis of, including by electronic means, the goods, services, or conduct of a person by an individual who is party to a form contract with respect to which such person is also a party.

Nudity and “sexually explicit conduct” include exposure of the naked genitals, or a nipple of a female breast and actual or simulated lascivious display of the “pubic area,” oral, anal or genital sex, bestiality, masturbation and sadistic or masochistic abuse.

There is an exception for images the disclosure of which is “in the bona fide public interest.”

There is a second exception for images of voluntary nudity in public or in a lawful commercial setting.

A violation is subject to up to 5 years in prison, a fine or both.

There is an exception for:

1. a customary and normal veterinary or agricultural husbandry practice;
2. the slaughter of animals for food;
3. hunting, trapping, fishing, predator control, or pest control;
4. medical or scientific research; or
5. necessary to protect the life of person or property of a person from a serious threat caused by an animal.

Personal identifying information is defined as: name; birth date; address; telephone number; drives license number; Social Security number; place of employment; employee identification numbers or other personal identification numbers; mother’s maiden name; electronic identification numbers; or, electronic signatures.

It would also be a crime to disseminate an altered photo of another person to “fraudulently” portray the person as nude or engage in sexual conduct without the other person’s knowledge or consent.

There is no exception for newsworthy images.

Read the legal memo we filed on H.B. 105 »

“Entrusted” is defined as the image was obtained under circumstances where both parties should reasonably understand that the image was to remain private.

An “intimate image” is defined as a person’s intimate apparel, nude or the touching of a person’s intimate body parts done for the purpose of “gratifying sexual desire.”

There is a second version of the crime deemed a criminal invasion of privacy if he or she distributes the image the same as above but obtained it under circumstances in which a reasonable person would know or understand that the image was to remain private.

There is no exception for newsworthy images but there is one for “distribution made in the public interest including, but not limited to, the reporting of unlawful conduct, or the lawful and common practices of law enforcement, criminal reporting, legal proceedings, or medical treatment.”

There are criminal penalties and civil causes of action as remedies.

“Entrusted” is defined as the image was obtained under circumstances where both parties should reasonably understand that the image was to remain private.

Factors for determining whether a picture was “entrusted” are:

1. The nature of the relationship between the parties;
2. The circumstances under which the intimate image was taken;
3. The circumstances under which the intimate image was distributed; and
4. Any other relevant factors.

“Intimate image” includes visual depictions of a person in intimate apparel, less than opaque clothing, touching of any person’s intimate body parts for the purpose of gratifying sexual desire.

Anyone who violates the statue would be liable to the person depicted for $10,000 or actual damages, pain and suffering, emotional distress, economic damages and lost earning, whichever is greater. The court can also impose injunctive relief.

06/01/16: Amended to apply to solely to first responders.

The bill would criminalize the dissemination or display of such content by brick and mortar retailers and theaters and by Internet.

However, there is no definition of “harmful to minors” in this bill or in existing West Virginia law.

A violation would be punishable by up to five years in prison, a fine of $25,000 or both.

Also, the harmful to minors law is overbroad. It includes in the definition of material harmful to minors images, descriptions or verbal narration of “physical torture or brutality.”

The law allows the Attorney General greater latitude in obtaining subpoenas, seeking forfeiture of property used in committing the crime and an added surcharge for anyone convicted of an Internet crime against children.

It is the same as SB 546.

Also, the harmful to minors law is overbroad. It includes in definition of material harmful to minors images, descriptions or verbal narration of “physical torture or brutality.”

The law allows the Attorney General greater latitude in obtaining subpoenas, seeking forfeiture of property used in committing the crime and an added surcharge for anyone convicted of an Internet crime against children.

There is an exception if the publication is related to a “newsworthy event.” “Newsworthy event” is defined as matter of public interest, of public concern or related to a public figure who is closely involved in the resolution of important public questions or by reason of his or her fame shapes events in areas of concern to society.

A first violation is subject to up to one year in prison.