Bills Tracked in 2015

Failure to comply is deemed an unfair trade practice and allows the person whose picture has not been removed to sue for civil penalties.

“Personal information” is not defined.

Read the legal memo we filed on H.B. 8 »

Read the legal memo we filed on S.B. 197 »

There is a second sales tax of 10% on the sale or rental of “sexually-oriented material.” This is defined as any material that contains nude images of breasts, genitals or sexual conduct.

The determination of what material is subject to either tax is to be made by the person or business making the sale or rental. Income derived from the tax must be reported by the retailer to the state on a monthly basis.

There is a second sales tax of 10% on the sale or rental of “sexually-oriented material.” This is defined as any material that contains nude images of breasts, genitals or sexual conduct.

The determination of what material is subject to either tax is to be made by the person or business making the sale or rental. Income derived from the tax must be reported by the retailer to the state on a monthly basis.

The bill is identical to H.B. 39, which died at the end of the first special session.

The right is limited to commercial use, but there is no explicit exemption for artistic or creative uses. There is a “fair use exception” for the use of a name, voice, signature, photograph, or likeness “used in connection with a news, public affairs, or sports broadcast or account of public interest, or a political campaign.”

The right extends beyond the life of the individual, but there is no specific limitation on the duration.

02/27/2015: The bill was amended to exempt from the right of publicity the use of a name, voice, signature or likeness in a play, book, magazine, newspaper, music composition, audiovisual work, or radio or television program, if it is fictional or nonfictional entertainment, or a dramatic, literary or musical work.

03/25/2015: The bill was amended for a second time to provide that the exemption for artistic uses only applies if the use is protected by the First Amendment. The text of the bill does not make clear whether the claimant or the defendant bears the burden of demonstrating that the use is protected by the First Amendment.

Read the legal memo we filed on S.B. 79 »

The bill includes the common list of exceptions for non-commercial uses.

The right extends beyond the life of the individual, but there is no specific limitation on the duration.

Read the legal memo we filed on A.B. 540/538 »

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 (A) being incarcerated in a state prison, a facility under the jurisdiction of the Division of Juvenile Justice, or a state hospital, (B) on parole, or (C) for any other reason.
3. The county sheriff, if the person is currently under the jurisdiction of the county by reason of (A) being incarcerated in a county jail, (B) on probation, postrelease community supervision, or mandatory supervision, or (C) for any other reason.
4. The California Victim Compensation and Government Claims Board.
5. The district attorney that prosecuted the relevant crime.
6. (A) The victim, if his or her contact information is reasonably available. (B) 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. 540/538 »

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 »

An intimate image is defined as depicting the genitals, public area or buttocks of a person or the breast of such other person who is female with less than a full opaque covering of any portion of such breast below the top of the nipple, or such other person engaged in sexual intercourse.

05/21/2015: The bill was amended on the House floor to remove the intent element of the crime. It now would criminalize the distribution of such image without consent if it causes harm.

Read the legal memo we filed on H.B. 6921 »

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 that “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 »

“Harass” is defined as engaging in conduct directed at a specific person, which causes substantial emotional distress to that person and serves no legitimate purpose.

There is no exception for images that are newsworthy or of public interest.

Any public retirement system that holds such investments on July 1, 2015 shall divest itself of all such investments no 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 wherein the defendant is not convicted because of “physical or mental disease, disorder or defect.”

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

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.

The existing Indiana law bars the possession of any image containing sexual conduct of anyone under the age of 18 or anyone who appears to be under the age of 18 if the material lacks serious literary, artistic, political or scientific value.

Read the legal memo we filed on S.B. 313 »

The existing Indiana law bars the possession of any image containing sexual conduct of anyone under the age of 18 or anyone who appears to be under the age of 18 if the material lacks serious literary, artistic, political or scientific value.

The bill is identical to S.B. 313.

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

A violation is a felony.

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 companies to scrub their contact list of addresses registered as minors.

It also bars any communication with the intent to annoy or alarm if a comment, request, suggestion or proposal is lewd, lascivious, filthy or indecent.

Failure to do so will be deemed an unlawful dissemination to a minor of material harmful to minors if the material being distributed is harmful to minors.

A publisher will not be held liable for allowing a minor to access material harmful to minors if the minor falsely acknowledged and attested that he or she is 18 years old.

Read the legal memo we filed on H.B. 153 »

See the lawsuit we filed challenging the law, Garden District Book Shop v. Caldwell »

There is an exception for an image “related to a matter of public interest, public concern or related to a public figure who is intimately involved in the resolution of important public questions, or by reason of his fame shapes events in areas of concern to society.”

Intimate parts are defined as “the fully unclothed, partially unclothed, or transparently clothed genitals, pubic area, or anus. If the person depicted in the image is a female, ‘intimate parts’ also means a partially or fully exposed nipple, including exposure through transparent clothing.”

A violation is subject to a prison sentence of up to two years, with or without hard labor, a fine of up to $10,000 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 is 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 »

04/03/2015: The bill was amended to limit the application to websites that charge a fee to remove the arrest photo.

Read the legal memo we filed on H.B. 744 »

A first violation shall be punished by a fine of no less than $1,000 or imprisonment for no 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 is 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 no more than 2 and a half years or in the state prison for no more than 5 years or by a fine of no more than $10,000 or by both such fine and imprisonment.

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 performance, work of art, literary work, theatrical work, musical work, motion picture, film or audiovisual work.”

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

The definition of “obscene” material lacks the serious value prong of the Miller test. It does allow evidence of serious value to be introduced but does not say for what purpose.

The legislation allows the court to dismiss a prosecution for “obscenity” if it is satisfied that the material is not “obscene.”

A first violation is subject to up to a year in jail, a $10,000 or both.

Businesses would have to scrub their list of electronic contacts every 30 days.

The message is not barred if, prior to sending it, the sender obtained consent from an age-verified adult that the message can be received at an adult-designated contact point.

Any registration for a specific minor expires the year the minor reaches the age of 18.

A violation of the law is a misdemeanor. It also creates a cause of action to bring a civil action against the sender of a message.

A law enforcement agency that allows a law enforcement officer to be accompanied and filmed retains full control over the content of any recording and must approve its use and any edited version of the content before the content or edited content may be aired.

The television or film production company must also obtain a release waiver from any person who is filmed interacting with a law enforcement officer.

There is an exception if the picture has been disseminated for a legitimate public purpose.

The “obscene for minors” law does not comply with the Miller/Ginsberg standard for material harmful to minors.

“Market or advertise” is defined as, in an exchange for monetary compensation, to make a communication to one of more individuals or to arrange for the dissemination to the public of communication about a product or service the primary purpose of which is to encourage the recipient of the communication to purchase or use the product or service.

An Internet website directed to minors is defined as “an Internet website, online service, website application program or mobile application program, or a portion thereof, that is created for the purpose of reaching an audience that is predominately comprised of minors, and is not intended for a more general audience comprised of adults.”

Among the material that could not be marketed or advertised for 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 or services.

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

This bill is 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.

The Attorney General must create a mechanism to allow anyone sending such communication to verify if the contact point is a minor. The fee to check shall not exceed three cents per contact point.

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.

Such a rating may contain, but shall not be limited to, descriptions 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 standardized designation commonly used to inform parents about video games regarding listening and viewing by their children.”

“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.

There is an exception for voluntary exposure in public or in a commercial setting. There is a second exception for “disclosures in the public interest,” but the specific list does not suggest this is a newsworthy exception.

Reasonable expectation of privacy is defined as when a person has consented to the disclosure of an image within the context of a confidential relationship and reasonably believes that it will not go beyond that relationship.

A violation is a felony. A person depicted in an image may also sue for damages to be computed at $1,000 per day or $10,000, whichever is greater.

10/12/2015: H.B. 792 was amended to add additional elements to the crime.

1. The distribution of an image must also be done with an intent to coerce, harass, intimidate, demean, humiliate or cause financial loss to the person in the image, or cause others to do so.
2. The person in the image must be identifiable from the image itself or information offered in connection with the image.

The bill was also amended to require that the image be distributed without affirmative consent of the person depicted.

There is no newsworthy exception.

A violation is a misdemeanor but the legislation also creates a private cause of action against each person who has distributed the image in violation of the first part, regardless of whether a criminal prosecution has been initiated or was successful. The plaintiff can seek economic, non-economic and exemplary or punitive damages and other remedies available by law, and obtain a temporary restraining order or a preliminary or permanent injunction ordering the person to cease distribution of the intimate image.

Read the legal memo we filed on S.B. 2357 »

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 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 »

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 »

02/27/2015: Amended to exempt from right of publicity literary work, theatrical work, musical composition, audio visual work, film, radio or television program. Also material that has political or newsworthy value.

There is no exception for newsworthy images.

Read the legal memo we filed on H.B. 101 »

“Sexually explicit” means any communication that 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.

There is no exception for newsworthy images.

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

There is an exception for news media that is licensed by the FCC or a regularly published newspaper or magazine.

There is an exception for publication of an image by a “bona fide member of the news media” and for law enforcement when acting in that capacity. “Bona fide member of the news media” is not defined.

Any business that owns or operates a website must remove such a picture within 48 hours of a request by the person depicted in the image. Failure to do so is subject to a $200 civil penalty. The Attorney General may also bring an action in the name of the state to restrain or enjoin a violation or threatened violation of the law.

1. He or she intends to have sex with the minor, or
2. Sends a communication that:
   1. the average person, applying contemporary standards, would find that taken as a whole appeals to a prurient interest harmful to minors;
   2. depicts or describe patently offensive representations or descriptions of sexual conduct; and
   3. taken as a whole, lacks serious literary, artistic, political and scientific value.

Patently offensive is defined by reference to the Texas obscenity statute.

Sexual conduct is defined as sexual acts, lascivious display of the genitals, anus or breasts if the person is a female.

1. if done intentionally without the “effective” consent of the person depicted,
2. the image was obtained or created under circumstances in which the depicted person had a reasonable expectation that it would remain private;
3. the distribution caused “harm,” and
4. the person in the image is identifiable, including when the picture is accompanied by identifying information or it is subsequently added by the person who distributes it or a third party.

There is no definition of “harm.”

There is no scienter element for the other elements of the crime. A person can be convicted without knowledge or foreseeability that the person depicted had an expectation of privacy, harm was caused or the identity of the person depicted.

A legal distribution of an image becomes illegal if a third party identifies the person in the picture.

The bill grants jurisdiction to Texas if an image is accessible in the state.

A violation is a criminal offense and it provides a cause of action to seek money damages and injunctive relief.

Read the legal memo we filed on S.B. 1135 »

This would include dissemination of any material that included advertisements, 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.

It would also be a crime to disseminate an altered photo of another person to “fraudulently” portray the person as nude or engaging 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 a civil cause 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 statute would be liable to the person depicted for $10,000 or actual damages, pain and suffering, emotional distress, economic damages and lost earnings, whichever is greater. The court can also impose injunctive relief.

“Adult bookstores” is defined as a commercial establishment that, as one of its principal business purpose, offers for sale or rental material that depicts or describes “specified sexual activities” or “specified anatomical areas.”

The bill criminalizes 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 existing West Virginia law.

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

Read the legal memo we filed on S.B. 128 »

“Adult bookstores” is defined as a commercial establishment that, as one of its principal business purposes, offers for sale or rental material that depicts or describes “specified sexual activities” or “specified anatomical areas.”