Illinois General Assembly - Full Text of HB1912
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Full Text of HB1912  102nd General Assembly

HB1912 102ND GENERAL ASSEMBLY

  
  

 


 
102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB1912

 

Introduced 2/17/2021, by Rep. Deanne M. Mazzochi - Chris Bos and Jonathan Carroll

 

SYNOPSIS AS INTRODUCED:
 
740 ILCS 190/5
740 ILCS 190/10
740 ILCS 190/15
740 ILCS 190/20
740 ILCS 190/25
740 ILCS 190/30

    Amends the Civil Remedies for Nonconsensual Dissemination of Private Sexual Images Act. Provides that a depicted individual may bring an action if the person reasonably expects to suffer actual harm (rather than only suffer harm) from the intentional dissemination or threatened dissemination of a private sexual image. Provides that any interactive computer service that disseminates or threatens to disseminate content provided by another person that constitutes a private sexual image is prohibited. Provides that an individual depicted in a private sexual image has an individual interest or in determining the right to license, sell, transmit, profit, or otherwise set terms to permit or exclude access to the private sexual image. Provides that if an interactive computer service fails to remove a private sexual image at the request of an individual who holds an intellectual property image right to the private sexual image, the interactive computer service is subject to appropriate remedies or at least $1,000 per day for each day that the request to remove the private sexual image is not honored, whichever is greater. Provides additional liability exceptions. Provides that the statutory damages a plaintiff may recover shall be at least $500 per occurrence (rather than shall not exceed $10,000). Provides that the voluntary removal of private sexual images or the failure to proceed on a threatened dissemination of private sexual images shall reduce the statutory damages by 50%. Provides that the punitive damages a plaintiff may recover shall be for extraordinary, willful, and wanton behavior, litigation misconduct during enforcement proceedings, or both. Changes the statute of limitations. Makes other changes.


LRB102 13264 LNS 18608 b

 

 

A BILL FOR

 

HB1912LRB102 13264 LNS 18608 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Civil Remedies for Nonconsensual
5Dissemination of Private Sexual Images Act is amended by
6changing Sections 5, 10, 15, 20, 25, and 30 as follows:
 
7    (740 ILCS 190/5)
8    Sec. 5. Definitions. As used in this Act:
9    (1) "Child" means an unemancipated individual who is less
10than 18 years of age.
11    (2) "Consent" means affirmative, conscious, and voluntary
12authorization by an individual with legal capacity to give
13authorization.
14    (3) "Depicted individual" means an individual whose body
15is shown, in whole or in part, in a private sexual image.
16    (4) "Dissemination" or "disseminate" means publication or
17distribution to another person with intent to disclose.
18    (5) "Harm" means physical harm, economic harm, or
19emotional distress whether or not accompanied by physical or
20economic harm.
21    (6) "Identifiable" means recognizable by a person other
22than the depicted individual:
23        (A) from a private sexual image itself; or

 

 

HB1912- 2 -LRB102 13264 LNS 18608 b

1        (B) from a private sexual image and identifying
2    characteristic displayed in connection with the image.
3    (7) "Identifying characteristic" means information that
4may be used to identify a depicted individual.
5    (8) "Individual" means a human being.
6    (8.5) "Intellectual property image right" means a property
7interest in the content of a private sexual image.
8    (9) "Parent" means an individual recognized as a parent
9under laws of this State.
10    (10) "Private" means:
11        (A) created or obtained under circumstances in which a
12    depicted individual had a reasonable expectation of
13    privacy; or
14        (B) made accessible through theft, bribery, extortion,
15    fraud, voyeurism, or exceeding authorized access to an
16    account, message, file, device, resource, or property.
17    (11) "Person" means an individual, business or nonprofit
18entity, public corporation, government or governmental
19subdivision, agency, or other legal entity.
20    (12) "Sexual conduct" includes:
21        (A) masturbation;
22        (B) genital sex, anal sex, oral sex, or sexual
23    activity; or
24        (C) sexual penetration of or with an object.
25    "Sexual conduct" includes sexual acts as defined by 18
26U.S.C. 2246.

 

 

HB1912- 3 -LRB102 13264 LNS 18608 b

1    (13) "Sexual activity" means any:
2        (A) knowing touching or fondling by the depicted
3    individual or another person, either directly or through
4    clothing, of the sex organs, anus, or breast of the
5    depicted individual or another person for the purpose of
6    sexual gratification or arousal;
7        (B) transfer or transmission of semen upon any part of
8    the clothed or unclothed body of the depicted individual,
9    for the purpose of sexual gratification or arousal of the
10    depicted individual or another person;
11        (C) act of urination within a sexual context;
12        (D) bondage, fetish, sadism, or masochism;
13        (E) sadomasochistic abuse in any sexual context; or
14        (F) animal-related sexual activity.
15    "Sexual activity" includes sexual acts as defined by 18
16U.S.C. 2246.
17    (14) "Sexual image" means a photograph, film, videotape,
18digital 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    "Sexual image" includes depictions of sexual acts as
26defined by 18 U.S.C. 2246.

 

 

HB1912- 4 -LRB102 13264 LNS 18608 b

1(Source: P.A. 101-556, eff. 1-1-20.)
 
2    (740 ILCS 190/10)
3    Sec. 10. Civil action.
4    (a) Except as otherwise provided in Section 15, if a
5depicted individual is identifiable to a reasonable person and
6suffers or reasonably expects to suffer actual harm from the
7intentional dissemination or threatened dissemination by a
8person over the age of 18 of a private sexual image without the
9depicted individual's consent, the depicted individual has a
10cause of action against the person if the person knew:
11        (1) the depicted individual did not consent to the
12    actual or threatened dissemination;
13        (2) the image was a private sexual image; and
14        (3) the depicted individual was identifiable.
15    (b) The following conduct by a depicted individual does
16not establish by itself that the individual consented to the
17nonconsensual dissemination of a private sexual image that is
18the subject of an action under this Act or that the individual
19lacked a reasonable expectation of privacy:
20        (1) consent to creation of the image; or
21        (2) previous consensual disclosure of the image,
22    unless that consent has been revoked.
23    (c) Any Nothing in this Act shall be construed to impose
24liability on an interactive computer service, as defined in 47
25U.S.C. 230(f)(2), that disseminates or threatens to

 

 

HB1912- 5 -LRB102 13264 LNS 18608 b

1disseminate for content provided by another person that
2constitutes a private sexual image is prohibited.
3    (d) It is presumed that an individual depicted in a
4private sexual image has an intellectual property right. An
5individual depicted in a private sexual image has an
6individual interest or, if more than one person is depicted, a
7joint interest in determining the right to license, sell,
8transmit, profit, or otherwise set terms to permit or exclude
9access to the private sexual image. Any agreement seeking to
10eliminate, transfer, sell, license, or otherwise limit a
11depicted individual's intellectual property image right is not
12enforceable unless it is in writing.
13    If an interactive computer service fails to remove a
14private sexual image at the request of an individual who holds
15an intellectual property image right to the private sexual
16image, the interactive computer service is subject to the
17appropriate remedies under Section 25 or at least $1,000 per
18day for each day that the request to remove the private sexual
19image is not honored, whichever is greater.
20(Source: P.A. 101-556, eff. 1-1-20.)
 
21    (740 ILCS 190/15)
22    Sec. 15. Exceptions to liability.
23    (a) A person is not liable under this Act if the person
24proves that the dissemination of or a threat to disseminate a
25private sexual image was:

 

 

HB1912- 6 -LRB102 13264 LNS 18608 b

1        (1) made in good faith:
2            (A) by law enforcement;
3            (B) pursuant to a threatened, anticipated, or
4        actual dissemination in a legal proceeding; or
5            (C) for medical education or treatment;
6            (D) pursuant to a release;
7            (E) in defense to an accusation of sexual assault
8        or rape by a depicted individual; or
9            (F) by such other circumstances as a court may
10        find reasonable and just.
11        (2) made in good faith in the reporting or
12    investigation of:
13            (A) unlawful conduct; or
14            (B) unsolicited and unwelcome conduct; or
15        (3) related to a matter of public concern.
16    (b) Subject to subsection (c), a defendant who is a
17parent, legal guardian, or individual with legal custody of a
18minor child is not liable under this Act for a dissemination or
19threatened dissemination of an intimate private sexual image
20of the minor child if made with consent. A parent, legal
21guardian, or individual with legal custody of a minor child
22may bring an action on behalf of the minor child at any time.
23    (c) If a defendant asserts an exception to liability under
24subsection (b), the exception does not apply if the plaintiff
25proves the disclosure was:
26        (1) prohibited by a law other than this Act; or

 

 

HB1912- 7 -LRB102 13264 LNS 18608 b

1        (2) made for the purpose of sexual arousal, sexual
2    gratification, humiliation, degradation, or monetary or
3    commercial gain.
4    (d) The dissemination of or a threat to disseminate a
5private sexual image is not a matter of public concern solely
6because the depicted individual is a public figure.
7(Source: P.A. 101-556, eff. 1-1-20.)
 
8    (740 ILCS 190/20)
9    Sec. 20. Privacy of parties.
10    (a) In an action under this Act:
11        (1) a plaintiff may proceed by using a pseudonym for
12    both the plaintiff and defendant in place of the true name
13    of the plaintiff and defendant under Section 2-401 of the
14    Code of Civil Procedure; and
15        (2) the court may exclude or redact from all pleadings
16    and documents filed in the action other identifying
17    characteristics of the plaintiff and defendant.
18    (b) A plaintiff to whom paragraph (2) of subsection (a)
19applies shall file with the court and serve on the defendant a
20confidential information form that includes the excluded or
21redacted plaintiff's name and other identifying
22characteristics.
23    (c) The court may make further orders as necessary to
24protect the identity and privacy of a plaintiff and defendant.
25    (d) If a plaintiff is granted privacy protections under

 

 

HB1912- 8 -LRB102 13264 LNS 18608 b

1this Section, a defendant may file a motion with the court to
2receive the same privacy protections. The court may deny or
3grant the motion at its discretion. The court shall ensure
4that disclosure is not being used to the advantage or
5disadvantage of one party over the other prior to the decision
6on the merits.
7    (e) At the conclusion of an action brought under this Act,
8the court shall ascertain what record evidence, if any,
9necessitates public disclosure in the interests of justice,
10unless the parties can otherwise reach an agreement. A party
11has an automatic right to a stay and interlocutory appeal
12regarding any issues of disclosure of a private sexual image
13arising under this Act.
14(Source: P.A. 101-556, eff. 1-1-20.)
 
15    (740 ILCS 190/25)
16    Sec. 25. Remedies.
17    (a) In an action under this Act, a prevailing plaintiff
18may recover:
19        (1) the greater of:
20            (A) economic and noneconomic damages proximately
21        caused by the defendant's dissemination or threatened
22        dissemination, including damages for emotional
23        distress whether or not accompanied by other damages;
24        or
25            (B) statutory damages of at least $500 per

 

 

HB1912- 9 -LRB102 13264 LNS 18608 b

1        occurrence , not to exceed $10,000, against each
2        defendant found liable under this Act for all
3        disseminations and threatened disseminations by the
4        defendant of which the plaintiff knew or reasonably
5        should have known when filing the action or that
6        became known during the pendency of the action. In
7        determining the amount of statutory damages under this
8        subsection, consideration shall be given to the age of
9        the parties at the time of the disseminations or
10        threatened disseminations, the number of
11        disseminations or threatened disseminations made by
12        the defendant, the breadth of distribution of the
13        image by the defendant, and other exacerbating or
14        mitigating factors. The voluntary removal of private
15        sexual images or the failure to proceed on a
16        threatened dissemination of private sexual images
17        shall reduce the statutory damages by 50%;
18        (2) an amount equal to any monetary gain made by the
19    defendant from dissemination of the private sexual image;
20    and
21        (3) punitive damages for extraordinary, willful, and
22    wanton behavior, litigation misconduct during enforcement
23    proceedings in connection with an action under this Act,
24    or both.
25    (b) In an action under this Act, the court may award a
26prevailing plaintiff:

 

 

HB1912- 10 -LRB102 13264 LNS 18608 b

1        (1) reasonable attorney's fees and costs; and
2        (2) additional relief, including injunctive relief.
3    (c) This Act does not affect a right or remedy available
4under any other law of this State.
5(Source: P.A. 101-556, eff. 1-1-20.)
 
6    (740 ILCS 190/30)
7    Sec. 30. Statute of limitations.
8    (a) An action under subsection (b) of Section 10 for:
9        (1) a nonconsensual dissemination may not be brought
10    later than 2 years from the date the dissemination was
11    discovered or should have been discovered with the
12    exercise of reasonable diligence; and
13        (2) a threat to disseminate may not be brought later
14    than 2 years from the date of the threat to disseminate is
15    made to the individual depicted in the private sexual
16    image or the recipient of the threat.
17    (b) Except as otherwise provided in subsection (c), this
18Section is subject to the tolling statutes of this State.
19    (c) In an action under subsection (a) of Section 10 by a
20depicted individual who was a minor on the date of the
21dissemination or threat to disseminate, the time specified in
22subsection (a) of this Section does not begin to run until the
23depicted individual attains the age of majority. This
24subsection does not prevent a parent, legal guardian, or
25individual with legal custody of a minor child from bringing

 

 

HB1912- 11 -LRB102 13264 LNS 18608 b

1an action prior to the depicted individual attaining the age
2of majority.
3(Source: P.A. 101-556, eff. 1-1-20.)