Rep. Mary Edly-Allen
Filed: 5/22/2019
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1 | AMENDMENT TO SENATE BILL 1507
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2 | AMENDMENT NO. ______. Amend Senate Bill 1507 by replacing | ||||||
3 | everything after the enacting clause with the following:
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4 | "Section 1. Short title. This Act may be cited as the Civil | ||||||
5 | Remedies for Nonconsensual Dissemination of Private Sexual | ||||||
6 | Images Act. | ||||||
7 | Section 5. Definitions. As used in this Act: | ||||||
8 | (1) "Child" means an unemancipated individual who is less | ||||||
9 | than 18 years of age. | ||||||
10 | (2) "Consent" means affirmative, conscious, and voluntary | ||||||
11 | authorization by an individual with legal capacity to give | ||||||
12 | authorization. | ||||||
13 | (3) "Depicted individual" means an individual whose body is | ||||||
14 | shown, in whole or in part, in a private sexual image. | ||||||
15 | (4) "Dissemination" or "disseminate" means publication or | ||||||
16 | distribution to another person with intent to disclose. |
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1 | (5) "Harm" means physical harm, economic harm, or emotional | ||||||
2 | distress whether or not accompanied by physical or economic | ||||||
3 | harm. | ||||||
4 | (6) "Identifiable" means recognizable by a person other | ||||||
5 | than the depicted individual: | ||||||
6 | (A) from a private sexual image itself; or | ||||||
7 | (B) from a private sexual image and identifying | ||||||
8 | characteristic displayed in connection with the image. | ||||||
9 | (7) "Identifying characteristic" means information that | ||||||
10 | may be used to identify a depicted individual. | ||||||
11 | (8) "Individual" means a human being. | ||||||
12 | (9) "Parent" means an individual recognized as a parent | ||||||
13 | under laws of this State. | ||||||
14 | (10) "Private" means: | ||||||
15 | (A) created or obtained under circumstances in which a | ||||||
16 | depicted individual had a reasonable expectation of | ||||||
17 | privacy; or | ||||||
18 | (B) made accessible through theft, bribery, extortion, | ||||||
19 | fraud, voyeurism, or exceeding authorized access to an | ||||||
20 | account, message, file, device, resource, or property. | ||||||
21 | (11) "Person" means an individual, business or nonprofit | ||||||
22 | entity, public corporation, government or governmental | ||||||
23 | subdivision, agency, or other legal entity. | ||||||
24 | (12) "Sexual conduct" includes: | ||||||
25 | (A) masturbation; | ||||||
26 | (B) genital sex, anal sex, oral sex, or sexual |
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1 | activity; or | ||||||
2 | (C) sexual penetration of or with an object. | ||||||
3 | (13) "Sexual activity" means any: | ||||||
4 | (A) knowing touching or fondling by the depicted | ||||||
5 | individual or another person, either directly or through | ||||||
6 | clothing, of the sex organs, anus, or breast of the | ||||||
7 | depicted individual or another person for the purpose of | ||||||
8 | sexual gratification or arousal; | ||||||
9 | (B) transfer or transmission of semen upon any part of | ||||||
10 | the clothed or unclothed body of the depicted individual, | ||||||
11 | for the purpose of sexual gratification or arousal of the | ||||||
12 | depicted individual or another person; | ||||||
13 | (C) act of urination within a sexual context; | ||||||
14 | (D) bondage, fetish, sadism, or masochism; | ||||||
15 | (E) sadomasochistic abuse in any sexual context; or | ||||||
16 | (F) animal-related sexual activity. | ||||||
17 | (14) "Sexual image" means a photograph, film, videotape, | ||||||
18 | digital recording, or other similar medium that shows: | ||||||
19 | (A) the fully unclothed, partially unclothed, or | ||||||
20 | transparently clothed genitals, pubic area, anus, or | ||||||
21 | female post-pubescent nipple, partially or fully exposed, | ||||||
22 | of a depicted individual; or | ||||||
23 | (B) a depicted individual engaging in or being | ||||||
24 | subjected to sexual conduct or activity. | ||||||
25 | Section 10. Civil action. |
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1 | (a) Except as otherwise provided in Section 15, if a | ||||||
2 | depicted individual is identifiable to a reasonable person and | ||||||
3 | suffers harm from the intentional dissemination or threatened | ||||||
4 | dissemination by a person over the age of 18 of a private | ||||||
5 | sexual image without the depicted individual's consent, the | ||||||
6 | depicted individual has a cause of action against the person if | ||||||
7 | the person knew: | ||||||
8 | (1) the depicted individual did not consent to the | ||||||
9 | dissemination;
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10 | (2) the image was a private sexual image; and
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11 | (3) the depicted individual was identifiable.
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12 | (b) The following conduct by a depicted individual does not | ||||||
13 | establish by itself that the individual consented to the | ||||||
14 | nonconsensual dissemination of a private sexual image that is | ||||||
15 | the subject of an action under this Act or that the individual | ||||||
16 | lacked a reasonable expectation of privacy:
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17 | (1) consent to creation of the image; or
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18 | (2) previous consensual disclosure of the image.
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19 | (c) Nothing in this Act shall be construed to impose | ||||||
20 | liability on an interactive computer service, as defined in 47 | ||||||
21 | U.S.C. 230(f)(2), for content provided by another person. | ||||||
22 | Section 15. Exceptions to liability. | ||||||
23 | (a) A person is not liable under this Act if the person | ||||||
24 | proves that the dissemination of or a threat to disseminate a | ||||||
25 | private sexual image was: |
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1 | (1) made in good faith: | ||||||
2 | (A) by law enforcement; | ||||||
3 | (B) in a legal proceeding; or | ||||||
4 | (C) for medical education or treatment; | ||||||
5 | (2) made in good faith in the reporting or | ||||||
6 | investigation of: | ||||||
7 | (A) unlawful conduct; or | ||||||
8 | (B) unsolicited and unwelcome conduct; or | ||||||
9 | (3) related to a matter of public concern. | ||||||
10 | (b) Subject to subsection (c), a defendant who is a parent, | ||||||
11 | legal guardian, or individual with legal custody of a child is | ||||||
12 | not liable under this Act for a dissemination or threatened | ||||||
13 | dissemination of an intimate private sexual image of the child. | ||||||
14 | (c) If a defendant asserts an exception to liability under | ||||||
15 | subsection (b), the exception does not apply if the plaintiff | ||||||
16 | proves the disclosure was: | ||||||
17 | (1) prohibited by a law other than this Act; or | ||||||
18 | (2) made for the purpose of sexual arousal, sexual | ||||||
19 | gratification, humiliation, degradation, or monetary or | ||||||
20 | commercial gain. | ||||||
21 | (d) The dissemination of or a threat to disseminate a | ||||||
22 | private sexual image is not a matter of public concern solely | ||||||
23 | because the depicted individual is a public figure. | ||||||
24 | Section 20. Privacy of parties. | ||||||
25 | (a) In an action under this Act: |
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1 | (1) a plaintiff may proceed by using a pseudonym in | ||||||
2 | place of the true name of the plaintiff under Section 2-401 | ||||||
3 | of the Code of Civil Procedure; and | ||||||
4 | (2) the court may exclude or redact from all pleadings | ||||||
5 | and documents filed in the action other identifying | ||||||
6 | characteristics of the plaintiff. | ||||||
7 | (b) A plaintiff to whom paragraph (2) of subsection (a) | ||||||
8 | applies shall file with the court and serve on the defendant a | ||||||
9 | confidential information form that includes the excluded or | ||||||
10 | redacted plaintiff's name and other identifying | ||||||
11 | characteristics. | ||||||
12 | (c) The court may make further orders as necessary to | ||||||
13 | protect the identity and privacy of a plaintiff. | ||||||
14 | (d) If a plaintiff is granted privacy protections under | ||||||
15 | this Section, a defendant may file a motion with the court to | ||||||
16 | receive the same privacy protections. The court may deny or | ||||||
17 | grant the motion at its discretion. | ||||||
18 | Section 25. Remedies. | ||||||
19 | (a) In an action under this Act, a prevailing plaintiff may | ||||||
20 | recover: | ||||||
21 | (1) the greater of: | ||||||
22 | (A) economic and noneconomic damages proximately | ||||||
23 | caused by the defendant's dissemination or threatened | ||||||
24 | dissemination, including damages for emotional | ||||||
25 | distress whether or not accompanied by other damages; |
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1 | or | ||||||
2 | (B) statutory damages, not to exceed $10,000, | ||||||
3 | against each defendant found liable under this Act for | ||||||
4 | all disseminations and threatened disseminations by | ||||||
5 | the defendant of which the plaintiff knew or reasonably | ||||||
6 | should have known when filing the action or that became | ||||||
7 | known during the pendency of the action. In determining | ||||||
8 | the amount of statutory damages under this subsection, | ||||||
9 | consideration shall be given to the age of the parties | ||||||
10 | at the time of the disseminations or threatened | ||||||
11 | disseminations, the number of disseminations or | ||||||
12 | threatened disseminations made by the defendant, the | ||||||
13 | breadth of distribution of the image by the defendant, | ||||||
14 | and other exacerbating or mitigating factors; | ||||||
15 | (2) an amount equal to any monetary gain made by the | ||||||
16 | defendant from dissemination of the private sexual image; | ||||||
17 | and | ||||||
18 | (3) punitive damages. | ||||||
19 | (b) In an action under this Act, the court may award a | ||||||
20 | prevailing plaintiff: | ||||||
21 | (1) reasonable attorney's fees and costs; and | ||||||
22 | (2) additional relief, including injunctive relief. | ||||||
23 | (c) This Act does not affect a right or remedy available | ||||||
24 | under any other law of this State. | ||||||
25 | Section 30. Statute of limitations. |
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1 | (a) An action under subsection (b) of Section 10 for: | ||||||
2 | (1) a nonconsensual dissemination may not be brought | ||||||
3 | later than 2 years from the date the dissemination was | ||||||
4 | discovered or should have been discovered with the exercise | ||||||
5 | of reasonable diligence; and | ||||||
6 | (2) a threat to disseminate may not be brought later | ||||||
7 | than 4 years from the date of the threat to disseminate. | ||||||
8 | (b) Except as otherwise provided in subsection (c), this | ||||||
9 | Section is subject to the tolling statutes of this State. | ||||||
10 | (c) In an action under subsection (a) of Section 10 by a | ||||||
11 | depicted individual who was a minor on the date of the | ||||||
12 | dissemination or threat to disseminate, the time specified in | ||||||
13 | subsection (a) of this Section does not begin to run until the | ||||||
14 | depicted individual attains the age of majority.
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15 | Section 35. Severability. If any provision of this Act or | ||||||
16 | its application to any person or circumstance is held invalid, | ||||||
17 | the invalidity does not affect other provisions or applications | ||||||
18 | of this Act that can be given effect without the invalid | ||||||
19 | provision or application, and to this end, the provisions of | ||||||
20 | this Act are severable.".
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