Legal Alerts

California Governor Jerry Brown Signs Into Law Senate Bill 255

On October 1, 2013, Governor Jerry Brown signed into law a bill that makes it a crime to publish nude photos or videos of someone without his or her consent, where the perpetrator has “intent to cause serious emotional distress” and where, as a result, the victim suffers serious emotional distress. 

This law is commonly referred to as the “revenge porn” law because the prohibited act primarily surfaces where the victim’s disgruntled, former partner retaliates by disseminating indecent photos or videos of the victim, without his or her permission. 

This law does not prohibit the consensual publishing of such images. Additionally, the law does not apply if the victim personally took the pictures or made the videos. Therefore, the only person that can be held accountable under this law is the person who created the actual images. Consequently, distribution of indecent photos or videos by the recipient of such images, that did not personally create the images, does not trigger this law. This glaring loophole is a concern for proponents of the law because reports have established that a large number of revenge porn victims created the images themselves, however, these images are later published without their consent.

The punishment for violation of the law is up to six months in jail and a $1,000 fine. A second or subsequent offense, or any offense where the victim is a minor, carries more serious penalties. 

According to the author of the bill, Sen. Anthony Cannella, R-Ceres, the law is motivated in part by the growing number of social media platforms, such as Twitter and Facebook, which have contributed to the mounting incidents of revenge porn. 

Sen. Leland Yee, D-San Francisco, was the only vote against the bill. Yee, similar to the American Civil Liberties Union, opposed the bill due to the fear of infringing the freedom of speech. 
The First Amendment has been a major reason why states other than California, the second state after New Jersey, have delayed criminalizing revenge porn. Recently, Florida considered a law banning revenge porn, but dropped it over First Amendment concerns. Other states, such as New York and Wisconsin, have begun to draft proposals for anti-revenge laws. 

Prior to the passing of the law, victims of revenge porn had to rely on civil privacy lawsuit to stop the offenders—a remedy that many victims were reluctant to pursue due to the expense of civil lawsuits and the possibility of attracting media attention.

Dissemination of such images may occur in the workplace. Accordingly, employers must be prepared to take immediate disciplinary measures against the harassers, to both stop the crime and also prevent potential sexual harassment claims against the employers.
 

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