AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

 

In recent years, there has been a disturbing Internet trend of sexually explicit images disclosed without the consent of the depicted person, resulting in immediate and in many cases, irreversible harm to the victim. Victims' images are often posted with identifying information such as name, contact information, and links to their social media profiles. The victims are frequently threatened with sexual assault, harassed, stalked, fired from jobs, and forced to change schools. Some victims have even committed suicide.

 

In many instances, the images are disclosed by a former spouse or partner who is seeking revenge. This practice has been commonly referred to as "revenge pornography" by the media. To add insult to injury, "revenge porn websites" are further preying on victims by charging fees to remove the sexually explicit images from the internet.

 

S.B. 1135 preserves relationship privacy by providing victims both civil and criminal remedies when these intimate images are disclosed in a nonconsensual manner and cause harm to the depicted person.

 

S.B. 1135 amends current law relating to the civil and criminal liability for the unlawful disclosure or promotion of certain intimate visual material and creates an offense.

 

RULEMAKING AUTHORITY

 

This bill does not expressly grant any additional rulemaking authority to a state officer, institution, or agency.

 

SECTION BY SECTION ANALYSIS

 

SECTION 1. Requires that this Act be known as the Relationship Privacy Act.

 

SECTION 2. Amends Title 4, Civil Practice and Remedies Code, by adding Chapter 98B, as follows:

 

CHAPTER 98B. UNLAWFUL DISCLOSURE OR PROMOTION OF INTIMATE VISUAL MATERIAL  

 

Sec. 98B.001. DEFINITIONS. Defines “intimate parts,” “promote,” “sexual conduct,” “visual material,” and “intimate visual material.”

 

Sec. 98B.002. LIABILITY FOR UNLAWFUL DISCLOSURE OR PROMOTION OF CERTAIN INTIMATE VISUAL MATERIAL. (a) Provides that a defendant is liable, as provided by this chapter, to a person depicted in intimate visual material for damages arising from the disclosure of material if:

 

(1) the defendant discloses the intimate visual material without the effective consent of the depicted person;

 

(2) the intimate visual material was obtained by the defendant or created under circumstances in which the depicted person had a reasonable expectation that the material would remain private;

 

(3) the disclosure of the intimate visual material causes harm to the depicted person; and

 

(4) the disclosure of the intimate visual material reveals the identity of the depicted person in any manner, including through:

 

(A) any accompanying or subsequent information or material related to the intimate visual material; or

 

(B) information or material provided by a third party in response to the disclosure of the intimate visual material.

 

(b) Provides that a defendant is liable, as provided by this chapter, to a person depicted in intimate visual material for damages arising from the promotion of the material if, knowing the character and content of the material, the defendant promotes intimate visual material described by Subsection (a) on an Internet website or other forum for publication that is owned or operated by the defendant.

 

Sec. 98B.003.  DAMAGES. (a) Requires that a claimant who prevails in a suit under this chapter be awarded:

 

(1)  actual damages, including damages for mental anguish;

 

(2)  court costs; and

 

(3)  reasonable attorney's fees.

 

(b) Authorizes a claimant who prevails in a suit under this chapter to recover exemplary damages, in addition to an award under Subsection (a).

 

Sec. 98B.004. INJUNCTIVE RELIEF. Authorizes a court in which a suit is brought under this chapter, on the motion of a party, to issue a temporary restraining order or a temporary or permanent injunction to restrain and prevent the disclosure or promotion of intimate visual material with respect to the person depicted in the material.

 

(b) Authorizes a court that issues a temporary restraining order or a temporary or permanent injunction under Subsection (a) to award to the party who brought the motion damages in the amount of:

 

(1) $1,000 for each violation of the court's order or injunction, if the disclosure or promotion of intimate visual material is wilful or intentional; or

 

(2) $500 for each violation of the court's order or injunction, if the disclosure or promotion of intimate visual material is not wilful or intentional.

 

Sec. 98B.005. CAUSE OF ACTION CUMULATIVE. Provides that the cause of action created by this chapter is cumulative of any other remedy provided by common law or statute.

 

Sec. 98B.006.  JURISDICTION. Provides that a court has personal jurisdiction over a defendant in a suit brought under this chapter if:

 

(1) the defendant resides in this state;

 

(2) the claimant who is depicted in the intimate visual material resides in this state;

 

(3) the intimate visual material is stored on a server that is located in this state; or

 

(4) the intimate visual material is available for view in this state.

 

Sec. 98B.007. LIBERAL CONSTRUCTION AND APPLICATION; CERTAIN CONDUCT EXCEPTED. (a) Requires this chapter to be liberally construed and applied to promote its underlying purpose to protect persons from, and provide adequate remedies to victims of, the disclosure or promotion of intimate visual material.

 

(b) Provides that this chapter does not apply to a claim brought against an interactive computer service, as defined by 47 U.S.C. Section 230, for a disclosure or promotion consisting of intimate visual material provided by another person.

 

SECTION 3. Amends Chapter 21, Penal Code, by adding Section 21.16, as follows:

 

Sec. 21.16.  UNLAWFUL DISCLOSURE OR PROMOTION OF INTIMATE VISUAL MATERIAL. (a) Defines “intimate parts,” “promote,” “sexual conduct,” “simulated,” and “visual material.”

 

(b) Provides that a person commits an offense if:

 

(1) without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person with the person’s intimate parts exposed or engaged in sexual conduct;

 

(2) the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;

 

(3) the disclosure of the visual material causes harm to the depicted person; and

 

(4) the disclosure of the visual material reveals the identity of the depicted person in any manner, including through:

 

(A) any accompanying or subsequent information or material related to the visual material; or

 

(B) information or material provided by a third party in response to the disclosure of the visual material.

 

(c) Provides that a person commits an offense if the person intentionally threatens to disclose, without the consent of the depicted person, visual material depicting another person with the person’s intimate parts exposed or engaged in sexual conduct and the actor makes the threat to obtain a benefit:

 

(1) in return for not making the disclosure; or

 

(2) in connection with the threatened disclosure.

 

(d) Provides that a person commits an offense if, knowing the character and content of the visual material, the person promotes visual material described by Subsection (b) on an  Internet website or other forum for publication that is owned or operated by the person.

 

(e) Provides that it is not a defense to prosecution under this section that the depicted person:

 

(1) created or consented to the creation of the visual material; or

 

(2) voluntarily transmitted the visual material to the actor.

 

(f) Provides that it is an affirmative defense to prosecution under Subsection (b) or (d) that:

 

(1) the disclosure or promotion is made in the course of:

 

(A) lawful and common practices of law enforcement or medical treatment;

 

(B) reporting unlawful activity; or

 

(C) a legal proceeding, if the disclosure or promotion is permitted or required by law;

 

(2) the disclosure or promotion consists of visual material depicting in a public or commercial setting only a person’s voluntary exposure of the person’s intimate parts or the person engaging in sexual conduct; or

 

(3) the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, and the disclosure or promotion consists of visual material provided by another person.

 

(g) Provides that an offense under this section is a Class A misdemeanor.

 

(h) Authorizes the actor to be prosecuted under this section, the other law, or both, if conduct that constitutes an offense under this section also constitutes an offense under another law.

 

SECTION 4. (a) Provides that Chapter 98B, Civil Practice and Remedies Code, as added by this Act, applies only to a cause of action that accrues on or after the effective date of this Act. Provides that a cause of action that accrues before the effective date of this Act is governed by the law in effect immediately before that date, and that law is continued in effect for that purpose.

 

(b) Provides that Section 21.16, Penal Code, as added by this Act, applies to visual material disclosed or promoted, or threatened to be disclosed, on or after the effective date of this Act, regardless of whether the visual material was created or transmitted to the actor before, on, or after that date.  

 

SECTION 5. Effective date: September 1, 2015.