2160-S AMH MCCA CAMB 100

SHB 2160 - H AMD 512

By Representative McCabe

ADOPTED 06/11/2015

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. A new section is added to chapter 4.24 RCW to read as follows:

(1) A person distributes an intimate image of another person when that person intentionally and without consent distributes, transmits, or otherwise makes available an intimate image or images of that other person that was:

(a) Obtained under circumstances in which a reasonable person would know or understand that the image was to remain private; or

(b) Knowingly obtained by that person without authorization or by exceeding authorized access from the other person's property, accounts, messages, files, or resources.

(2) Any person who distributes an intimate image of another person as described in subsection (1) of this section and at the time of such distribution knows or reasonably should know that disclosure would cause harm to the depicted person shall be liable to that other person for actual damages including, but not limited to, pain and suffering, emotional distress, economic damages, and lost earnings, reasonable attorneys' fees, and costs. The court may also, in its discretion, award injunctive relief as it deems necessary.

(3) Factors that may be used to determine whether a reasonable person would know or understand that the image was to remain private include:

(a) The nature of the relationship between the parties;

(b) The circumstances under which the intimate image was taken;

(d) Any other relevant factors.

(4) It shall be an affirmative defense to a violation of this section that the defendant is a family member of a minor and did not intend any harm or harassment in disclosing the images of the minor to other family or friends of the defendant. This affirmative defense shall not apply to matters defined under RCW 9.68A.011.

(5) As used in this section, "intimate image" means any photograph, motion picture film, videotape, digital image, or any other recording or transmission of another person who is identifiable from the image itself or from information displayed with or otherwise connected to the image, and that was taken in a private setting, is not a matter of public concern, and depicts:

(a) Sexual activity, including sexual intercourse as defined in RCW 9A.44.010 and masturbation; or

(b) A person's intimate body parts, whether nude or visible through less than opaque clothing, including the genitals, pubic area, anus, or postpubescent female nipple.

(6) In an action brought under this section, the court shall:

(a) Make it known to the plaintiff as early as possible in the proceedings of the action that the plaintiff may use a confidential identity in relation to the action;

(b) Allow a plaintiff to use a confidential identity in all petitions, filings, and other documents presented to the court;

(c) Use the confidential identity in all of the court's proceedings and records relating to the action, including any appellate proceedings; and

(d) Maintain the records relating to the action in a manner that protects the confidentiality of the plaintiff.

(7) Nothing in this act shall be construed to impose liability on an interactive computer service, as defined in 47 U.S.C. 230(f)(2) as it exists on the effective date of this section, for content provided by another person."

EFFECT: Amends the Substitute House Bill by:

· Removing a requirement that distribution of certain intimate images must either intentionally or recklessly cause emotional distress;

· Requiring that a person know or reasonably should know that disclosure of an intimate image would cause harm

· Removing a minimum liability of up to $10,000;

· Creating an affirmative defense for a defendant who is a family member of a minor and who discloses an intimate image of the minor to family or friends if he or she did not intend any harm or harassment;

· Removing depictions of a person's intimate apparel from the definition of "intimate image";

· Adding "sexual activity" to the definition of "intimate image";

· Listing genitals, public area, anus, or postpubescent female nipples as intimate body parts; and

· Requiring the court to make it known to the plaintiff as early as possible that the plaintiff may use a confidential identity in relation to the action and allows the plaintiff to use a confidential identity in all petitions, filings, and other documents presented to the court.

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