Bills Tracked in 2014

Present law limits this designation to businesses with the sale or rental of such items as its primary business.

Failure to comply with a request to takedown an arrest photo is considered a deceptive trade practice subject to all remedies including civil penalties.

The bill was amended to add a limited exemption for websites of newspapers, periodicals, TV, radio or cable news.

Present law limits this designation to businesses with the sale or rental of such items as its primary business.

This is a companion to H.B. 119. Read the legal memo we filed on S.B. 222 »

There is an exception for law enforcement, medical treatment, and images involving voluntary exposure in a public or commercial setting.

There is nothing in the bill that excludes re-publication of an image. A violation is a felony.

The law allows local municipalities to enact similar provisions requiring that visual or other evidence be turned over to local law enforcement within five days.

The bill was amended in the House to remove the requirement that requires anyone who has evidence of animal cruelty must turn it over to the Department of Agriculture.

It also bars the site operator from allowing a third party to capture information about the minor for marketing such items or service to the minor.

The site operator must permit a minor to remove content or information from the site that the minor had posted. The site must make the minor aware that he or she can do so.

It includes but isn’t limited to any actual or attempted recording of the child’s image or voice, or both, without the written consent of the child’s parent or legal guardian, by following the child’s activities or lying in wait.

The conduct must be such as would cause a reasonable child to suffer substantial emotional distress, and line actually cause the victim to suffer substantial emotional distress.

“Commercial website” is defined as a web site that charges a fee to remove a person’s mug shot or other basic information from a website.

There is a specific exclusion from the defition of a commercial website for a website operated by a newspaper, periodical, wire service, radio or television station or network, news or feature syndicate or cable television station.

04/02/2014: The bill was amended to  limit its application to sites that charge a fee to remove the photograph from the publication or website.

04/21/2014: S.B. 489 was amended so it does not apply to voluntary exposure in a public or commercial setting or if the person in the image is not clearly identifiable.

“Sexually oriented material” shall mean any book, article, magazine, publication or written matter of any kind, drawing, etching, painting, photograph, motion picture film or sound recording, which depicts sexual activity, actual or simulated, involving human beings or human beings and animals, or which exhibits uncovered
human genitals or pubic region in a lewd or lascivious manner or which exhibits human male genitals in a discernibly turgid state, even if completely covered.

The website would also be barred from marketing: Alcoholic liquor; Tobacco products; Tobacco substitutes; Firearm;,Ammunition for a firearm, or BB guns; Firearm training course; Electronic control devices; Graffiti implements; Fireworks; Tanning equipment or tanning facility; Dietary supplement products containing ephedrine; Lottery, internet lottery, internet table, etc; Salvia divinorum or Salvinorin A; Body-piercing; Branding; Tattoos; Drug paraphernalia; or Tongue-splitting.

H.B. 261 would also require such websites to provide an “eraser” button to allow minors to remove or hide posts if made by a poster while a minor.

The legislation would be enforced by the Attorney General under his or her general powers regarding consumer protection and consumer fraud.
There is a private right of action that may be available under Delaware’s Consumer Fraud Act.

The existing law criminalizes only images of actual minors engaged in sexual conduct.

The person may cause the unknowing person to be wrongfully identified by including their name, address, telephone number or email. It can also be done by imposing the facial image of the wrongfully identified person onto the body of a person appearing nude or engaged in sexual activity.

A violation is subject to up to a year in prison, a fine up to $1,000 or both.

The Right of Publicity does not apply to any literary work, dramatic work, fictional work, historical work, audiovisual work, or musical work regardless of the media in which the work appears or is transmitted; material that has political or newsworthy value; original works of fine art; or an advertisement or commercial announcement for a use permitted above.

A use of an aspect of an individual’s persona in connection with any news, public
affairs, sports broadcast, or account or political campaign shall not constitute a use for which consent is required.

The law also bars any person who publishes an individual’s arrest booking photograph from charging a fee for removing such photograph from the person’s publication or website.

It isn’t clear that the publisher would be required to take the image down.

02/27/13 H.B. 150 was amended in the Judiciary Committee and passed out 2.26.2013.

The amended bill would require that anyone who publishes mug shots for people who aren’t prosecuted, are found innocent, go into a drug treatment program or certain other outcomes must remove them upon request by the person in the picture. Failure to do so is unlawful.

There appears to be an exception for: Acts done by the publisher, owner, agent, or employee of a newspaper, periodical, or radio or television station, or website in the publication or dissemination of news or commentary.

The Right of Publicity language was removed from the bill.

The law would not apply to law enforcement or “legitimate” medical, scientific or educational activities. “Legitimate” is not defined.

The finder of fact my infer that a communication is intended to annoy if it transmitted for the purpose of exposing an individual to public hatred.

Constructive invasion of privacy includes assault or false imprisonment.

A victim of constructive invasion of privacy may recover general damages, special damages and punitive damages of up to three times the combined total of the general and special damages.

If the invasion of privacy is committed for a commercial purpose, the person who captured the content is subject to disgorgement of the proceeds.

Any person who directs, solicits, induces or causes the invasion of privacy is subject to the same damages.

The bill would also subject to a cause of action any person who transmits, publishes or otherwise disseminates the images, sound recording or other impression or retransmits, republishes or otherwise further disseminates the content if:

(1) The person had actual knowledge that the content was taken or captured in violation of this section; and

(2) The person received compensation, monetary or otherwise, for the rights to the unlawfully obtained visual image, sound recording, or other physical impression.

It also requires sites to allow parents to be able to “erase” anything their minor child has posted without permission or knowledge of the minor.

04/02/14
The bill was amended to bar the ability of a minor’s parent from erasing material posted by the minor.

“Intimate parts” is defined as unclothed genitals, pubic area, buttocks or, if a female, an unclothed fully or partially developed breast.

There is an exception for images involving voluntary exposure in a public or commercial setting. There’s a second exception for dissemination that serves a public purpose.

A violation is a Class 4 felony.

The period of limitations shall not run during the time period in which the person entitled to bring the action undertakes to discover the identity of one who may be responsible for damages.

Presently the statute of limitations is two years from time of publication.

03/10/14 The bill was amended to cap the statute of limitations at three years regardless of whether the speech was anonymous, under a false name or the author was not identified

All website administrators must have contact information to allow take down requests to be made in any section of the site that allows comments.

It would also make it unlawful for any person engaged in “placing, posting, publishing, reproducing or maintaining an Internet site to solicit or accept payment of a fee for removal of a person’s “private material” or “identifying information” if it has been posted on the site without the knowledge and consent of that person.

“Private information” is any image that includes nudity, a state of sexual excitement or sexual conduct.

“Identifying information” means name, address, phone number or email.

09/08/14
The bill was amended to provide that the posting must be done with intent to cause emotional distress.

Also, an exception was added for images published by the “news media” that are of “substantial public interest.”

“News media” is defined as “a newspaper or other periodical issued at regular intervals whether in print or electronic format, a news service whether in print or electronic format, a radio station, a television station, a television network, a community antenna television service, or a person or corporation engaged in making news reels or other motion picture news for public showing.”

It would also broaden the law to apply to all non-commercial establishments. Presently, it only applies to commercial establishments.

It would also broaden the law to apply to all non-commercial establishments. Presently, it only applies to commercial establishments.

This bill is the same as H.B. 2165 that was introduced last year but failed to make it out of committee.

This bill makes the same change to the scienter requirement as H.B.2496 which is pending in the House and H.B. 2165 that was introduced last year but failed to make it out of committee.

“Private erotic matter” is defined as any image which depicts the exposure of unclothed or apparently unclothed human genitals, buttocks, or nipple of the female breast or sexual conduct, that was created for private use with the consent of the person depicted and without authorization to distribute.

It would also be a crime to communicate with a person in any written form in a manner which causes annoyance or alarm and “serves no purpose of legitimate communication.”

An “age verification system” is defined as technology used by a website to confirm that a user attempting to access the website is at least 18 year old.

Intimate parts is defined as naked genitals, buttocks, pubic area or female nipple.

Disclosure includes republishing or redistributing. The bill would not apply to voluntary exposure in public or a commercial setting.

Disclose is defined as any distribution of the image(s) including republication.

Intimate parts is defined as naked genitals, buttocks, pubic area or female nipple.

The legislation contains two notable exemptions: First it exempts disclosure of an image with a bona fide and lawful scientific, educational, governmental, news or other similar public purpose.

Second, it exempts a picture taken of someone who voluntarily exposes him or herself in a public or commercial setting.

There is an exception for disclosure for any “bona fide and lawful public purpose.” The law does not apply to images captured of someone who voluntary exposes him or herself in public or in a commercial setting.

“Partially nude” is defined as exposure of the human genitals, buttocks, pubic area or female breast below a point immediately above the top of the areola.

The commission will study, investigate, and provide conclusions regarding: (i) the social benefits, impacts and implications of video games in general and killing games in particular, comparing the impact on youth with the impact on adults; (ii) the use of video games as military training devices, educational devices, and other training applications; (iii) how video games compare to other forms of media in terms of their ability to recreate a realistic experience, to desensitize the consumer, to train the consumer to accept certain ideas, and to teach the player new skills or capabilities; (iv) the addictive quality of video games; (v) any connection, including any exposure to or imitation of behaviors exhibited in video games, between killing games and actual violence, including rampage killings that have taken place since 1990; (vi) the reasoning and conclusions drawn in the majority, concurring, and dissenting opinions in Brown v. Entertainment Merchants Association, as well as other freedom of speech considerations relative to the regulation of video games, in light of the conclusions drawn by the commission pursuant to (i)-(v); and (vii) the anticipated cost of any proposals to regulate video games.

The right does not apply to: (i) use of a personality’s identity as part of a news report or commentary or as part of an artistic or expressive work, such as a live performance, work of art, literary work, theatrical work, musical work, audiovisual work, motion picture, television program, radio program or the like, (ii) use of a personality’s identity in an advertisement, promotion or commercial announcement for any such news report, commentary or work containing the personality’s identity, (iii) use of a personality’s identity in the personality’s role as a member of the public where the personality is not named or similarly identified, (iv) use of a personality’s identity or a group of personalities’ identities in a manner that is incidental or de minimis or (v) use of a personality’s identity in a manner that is otherwise permitted by law.

The bill also makes it illegal to refuse or fail to remove such a photo upon written request by the person depicted regardless the motivation for posting it.

This provision applies regardless of whether the person depicted in the image consented to the image being captured except if the person knew the picture would be “sexually explicit” and signed a knowing release to allow it to be posted.

“Sexually explicit” is defined as display of a person’s genitalia, anus or, if female, any part of the nipple or areola.

it is an affirmative defense that the person who posted the image took all reasonable steps to have it removed upon written request.

A first violation is punishable by up to 93 days in jail, a $500 fine, or both. A second offense is punishable by up to a year in prison, a $1,000 fine, or both.

The legislation also requires any publisher who seeks access to an arrest photo to explain how the image will be used and every location it will appear. Any re-publisher who receives the image from a publisher who obtained the picture from the state must also file this information.

H.F. 1940 would not require that the person requesting that the information be removed live in Minnesota nor does the website subject to the request to take down the information need to be located in the state.

The legislation also requires any publisher who seeks access to an arrest photo to explain how the image will be used and every location it will appear. Any re-publisher who receives the image from a publisher who obtained the picture from the state must also file this information.

H.F. 1863 would not require that the person requesting that the information be removed live in Minnesota nor does the website subject to the request to take down the information need to be located in the state.

The bill is a companion to H.F. 1940

“Sexually oriented material” is defined as contains representations or descriptions, actual or simulated, of masturbation, sodomy, excretory functions, lewd exhibition of the genitals or female breasts, sadomasochistic abuse (for the purpose of sexual stimulation or gratification), homosexuality, lesbianism, bestiality, sexual intercourse, or physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or the breast or breasts of a female for the purpose of sexual stimulation, gratification or perversion.
The definition does not include any part of the Miller/Ginsberg test.

A violation of the law would be subject to no less than one year in prison and no more than five years in prison.

Also, the Missouri law barring dissemination of harmful to minors material to minors does not apply to the Internet.

The amendments would increase the penalty for certain violations of the law.

10/06/14 The bill was amended to remove 573.090 from the Missouri code of statutes. The law was held unconstitutional in VSDA v. Webster.

However, the existing enticement statute is unconstitutional. It creates the crime of enticement by electronic communication device if he or she is nineteen eighteen years of age or over and knowingly and intentionally utilizes an electronic communication device to contact a child under sixteen years of age or a peace officer who is believed by such person to be a child under sixteen years of age and in so doing:

(a) Uses or transmits any indecent, lewd, lascivious, or obscene language, writing, or sound;

(b) Transmits or otherwise disseminates any visual depiction of sexually explicit conduct; or

(c) offers or solicits any indecent, lewd or lascivious act.

A court must also decline to recognize a foreign defamation judgement if: (a) The defendant in the proceeding in the foreign court did not receive notice of the proceeding in sufficient time to enable such defendant to provide a defense; (b) The judgment was obtained by fraud;
(c) The cause of action or claim for relief on which the judgment is based is repugnant to the public policy of this state; (d) The judgment conflicts with another final and conclusive order; (e) The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceedings in that court; (f) In the case of jurisdiction based only on personal service, the foreign court was an inconvenient forum for the trial of the action; or (g) The foreign jurisdiction where judgment was rendered would not give recognition to a similar judgment rendered in this state;

Any person against whom a foreign defamation judgement has been entered may bring a declaratory judgement or seek an injunction to bar enforcement. The action may be brought prior to the foreign adjudication being completed.

Courts in the state are granted jurisdiction over anyone bringing a defamation in a foreign territory by virtue of that action having been filed.

The removal shall be without charge to the person.

Among the products material that could not be marketed or advertised to minors is “obscene for minors” material, however the definition of this material does not include the Miller/Ginsberg standard.

An operator is deemed to have complied if he or she has taken reasonable steps to avoid marketing or advertising (or allowing others to do so) of the list of goods and services.

The bill also would require the site to allow minors to remove information the minor had posted. The post must be erased within 7 days.

This bill is a companion to S.B. 1256.

This resolution is a direct response to a judge striking down a New Jersey law barring certain advertising on Backpage.com.

This resolution is a direct response to a judge striking down a New Jersey law barring certain advertising on Backpage.com.

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

Video game retailers would be required to display any such video games in a location that is inaccessible to minors.

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

This is a companion bill to S.B. 308.

This bill is introduced each session in New York

This law was found to violate the First Amendment in American Library Association v. Pataki.

This bill is a companion to S.B. 5196.

Sexual or other intimate parts is not defined.

Neither annoy nor alarm is defined.

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.

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.

It is a companion to S.B. 5954.

There is an enhanced penalty if the image is distributed with the intent to cause emotional harm or to obtain profit.

There is a further enhanced penalty if the person disseminating the image or a reproduction of the image if the image is received or obtained without the consent of the person who had first possession of the image.

Images that are wrongfully taken, obtained or withheld are subject to New York’s larceny law. Images depicting anyone less than 18 years old are subject to child pornography laws.

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

Video game retailers would be required to display any such video games in a location that is inaccessible to minors.

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

This is a companion bill to A.B. 2663.

There is no time limit after which permission would not be necessary.

S.B. 3036 also makes it a crime to use the image of any living person advertising or trade purposes without the person’s written permission or the permission of their parent or guardian if the person is a minor.

There is no definition of advertising or of for trade purposes.

This bill is a companion to A.B. 7843.

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

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.

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.

It is a companion to A.B. 8214.

“Mental distress” means: (a) Any mental illness or condition that involves some temporary substantial incapacity; or (b) Any mental illness or condition that would normally require psychiatric treatment, psychological treatment, or other mental health services, whether or not any person requested or received those services.

“Nude” is defined as any showing of the genital, buttocks, pubic area or a female breast below the top of the areola less than opaquely covered.

“Intimate partner” is not defined. This bill is a companion to S.B. 1167.

They also allow the Attorney General or a district attorney to sue on behalf of the crime victim.
The cause of action is not limited to the term of incarceration.

“Nude” is defined as any showing of the genital, buttocks, pubic area or a female breast below the top of the areola less than opaquely covered.

“Intimate partner” is not defined. This bill is a companion to H.B. 1901

A violation of the legislation would be a felony subject to five years in prison, a fine of $5,000 or both.

It would also bar dissemination of any image of sexual activity or the intimate areas’ of another person without the consent of all people in the picture regardless of whether it is that person engaging in sexual activity or with an intimate area visible.

It is a companion to S.B. 550.

The bill does not define any of these terms.

A violation of the legislation would be a felony subject to five years in prison, a fine of $5,000 or both. Any person convicted of violating 11-9-1.5 would have to file with the state as a sex offender.
This bill is a companion to S.B. 2610.

A violation of the legislation would be a felony subject to five years in prison, a fine of $5,000 or both.

It would also bar dissemination of any image of sexual activity or the intimate areas’ of another person without the consent of all people in the picture regardless of whether it is that person engaging in sexual activity or with an intimate area visible.

It is a companion to H.B. 5570.

A violation of the legislation would be a felony subject to five years in prison, a fine of $5,000 or both. Any person convicted of violating 11-9-1.5 would have to file with the state as a sex offender.
The bill is a companion to H.B. 7766.

It is a companion to S.B. 1248.

It also increases the severity of the crime to a Class A misdemeanor from a Class C.

There’s no exception for newsworthy images.

“Sexually explicit” means any communication which relates to or describes “sexual conduct.”
“Sexual conduct” is defined as sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.

There is no reference to the three prong Miller/Ginsberg test.

It would be unlawful to sell or rent any video game rated Mature to anyone less than 17 years old.

It would also be unlawful to sell or rent any video game that does have a rating
label clearly displayed on its packaging signifying a rating determined by the ESRB.

Any retailer that sells video games would be required to display in a clear and conspicuous location information about the ESRB rating system.

The Federal Trade Commission would be given the authority to enforce this law. Any violation would be deemed an unfair or deceptive act or practice and subject to a fine of up to $5,000.

NAS is given 15 months to submit the report to Congress, the Federal Trade Commission, the Federal Communications Commission and the Department of Health and Human Services.

“Intimate image” is an image that depicts the genitals or pubic area or female breast if less than opaquely covered or actual or simulated sexual conduct.

There is an exception for 1) law enforcement, lawful and generally accepted medical practices, 2) for images where the person depicted voluntarily allows public exposure or 3) images captured in a lawful commercial setting.

Amended 2/6 to add requirement that the images must be distributed with an intent to cause severe emotional distress or harm and actual harm occurs as a result of the pictures being distributed.

The intent to annoy may be inferred from the use of lewd of lascivious language.

Companion to S.B. 5584.

Companion to H.B. 1051.

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.

“Harmful matter is defined as any material containing any representation or image of a person which depicts sexually explicit nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors, and any matter containing explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct, or sadomasochistic abuse and which, taken as a whole, is harmful to minors.

The Miller/Ginsberg three prong test for material harmful to minors is not included in any West Virginia statute.

1. The message invites a person to contact a specific individual and use obscene, lewd, or profane language or suggest a lewd or lascivious act in the invited communication.

2. The original message includes information on how to contact the individual.

3. The person sending the original message intends that the targeted person be harassed, frightened, intimidated, threatened, or abused by the invited communication.

4. As a result of the original message, a person contacts the targeted person and the targeted person is harassed, frightened, intimidated, threatened, or abused.

There is a separate offense if lewd, lascivious or obscene language is used in the communication to the targeted person.

Present Wisconsin law already bars sending such a message by email.

This bill is a companion to S.B. 184

Consent to the capture of the image or giving such a picture, if self-taken, is not consent to it being disseminated.

Nudity is defined as any human being who has less than fully and opaquely covered genitals, pubic area or buttocks, any female human being who has less than a fully opaque covering over any portion of a breast below the top of the nipple, or any male human being with covered genitals in a discernibly turgid state.

This bill is a companion to S.B. 367.

Present Wisconsin law already bars sending such a message by email.

Consent to the capture of the image or giving such a picture, if self-taken, is not consent to it being disseminated.

“Nudity” is defined as any human being who has less than fully and opaquely covered genitals, pubic area or buttocks, any female human being who has less than a fully opaque covering over any portion of a breast below the top of the nipple, or any male human being with covered genitals in a discernibly turgid state.

This bill is a companion to A.B. 462.