California Statutory Civil Law

  1. California Constitution, art. I, § 1

    1. Introduction

      Unlike the federal Constitution, California’s constitution explicitly recognizes a right to individual privacy in its text. A victim in California of the unwanted publication of intimate images online can bring a cause of action based on the California constitutional right of privacy. The plaintiff in such a case would have a privacy interest in preventing the dissemination of intimate images. To win his/her case, a plaintiff must prove three things: (1) that s/he had a reasonable expectation that his/her intimate images would not be disseminated publicly; (2) that the privacy interest is one that society recognizes; and (3) that dissemination of the images is considered to be an “egregious breach of social norms.”1

    2. Text of the Statute

      “All people are by their nature free and independent and have inalienable rights. Among these are . . . pursuing and obtaining safety, happiness, and privacy.”2

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      1. A victim in California of the unwanted publication of intimate images online can bring a cause of action based on the California constitutional right of privacy. The plaintiff in such a case would have a privacy interest in preventing the dissemination of private, intimate images. To win his/her case, a plaintiff must prove three things: (1) that s/he had a reasonable expectation that her intimate images would not be disseminated publicly; (2) that his/her privacy interest is one that society recognizes; and (3) that dissemination of the images is considered to be an “egregious breach of social norms.”3 A defendant can defeat a California constitutional privacy claim if s/he shows that s/he had an important, legitimate interest in dissemination. For victims where dissemination is likely done with the intent to harass, it is unlikely that a defendant will meet this burden because a defendant must prove that his/her conduct serves a legitimate purpose beyond merely harassing the plaintiff. One California case suggests that individuals forfeit their right to privacy in photographs when they post those photographs online, even if such posting is subject to privacy controls that would typically limit access to a small number of individuals.4

        The leading case regarding a private right of action under the California constitution against a private entity for a violation of privacy rights is Hill v. Nat’l Collegiate Athletic Ass’n. In Hill, the California supreme court recognized that the California constitution’s right of privacy as contained in article I, section 1, creates a private right of action not only against the government, but also nongovernmental entities.5 In Hill, the California supreme court relied upon the ballot argument for Proposition 11, a.k.a. the Privacy Initiative, which urged the need for greater protection against the potential misuse of information gathered by both government and private entities.6 The ballot argument raised the concern that the government and private entities might use that information for other objectives not related to the original purpose of gathering the information. The ballot argument also raised the concern that information gathered by the government and non-governmental entities would be used to “embarrass” individuals.7 The Court also cited the “repeated emphasis in the competing ballot arguments on private party relationships,” as an indication that California voters and the proponents and opponents of the initiative were concerned with the misuse of information by private entities.8 In light of the voting history for the initiative, the Court held that the right of privacy applied to the conduct of private organizations and therefore, the plaintiffs in Hill had a cause of action against the National Collegiate Athletic Association (“NCAA”), a private non-profit organization.

        In Hill, the Court identified three elements needed for a cause of action for the invasion of the state constitutional right of privacy: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy; and (3) a serious invasion of privacy interest.9 The first element is the “identification of a specific, legally protected privacy interest.”10 The court identified two types of legally recognized privacy interests: (1) "interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’); and (2) interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (‘autonomy privacy’)."11 Whether a particular type of information or personal decision is to be protected from government or non-governmental interference is to be determined by the social norms established through the common law, constitutional development, statute enactment and the ballot arguments.12 The second element in a constitutional right of privacy claim is whether an individual had a reasonable expectation of privacy. In order to determine whether a plaintiff’s expectation of privacy was “reasonable,” social norms must be examined, as well as whether the plaintiff had an opportunity to consent voluntarily.13 The third element requires that “[a]ctionable invasions of privacy…be sufficiently serious in their nature, scope and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right.”14

        However, when a defendant has employed the private information as part of legally authorized and socially beneficial activities, the Court must balance the plaintiff’s individual privacy concerns with other legitimate interests.15 The importance of competing interests is to be determined by “their proximity to the central function of a particular public or private enterprise.”16 The offensive conduct “is to be evaluated based on the extent to which it furthers legitimate and important competing interests.”17 The plaintiff may counter by pointing out protective measures or alternatives available to the defendant that would minimize the invasion of her privacy interests.”18

      2. A similar argument has been made under the Hawaii Constitution. The right to privacy is recognized in Hawaii’s Constitution.19 Among the privacy interests the Hawaii Constitution protects is informational privacy: the right to keep confidential information that is “highly personal and intimate.”20 The Supreme Court of Hawaii explained the nature of the highly personal and intimate information protected by the Constitution:

         

        Every individual has some phases of his [or her] life and his [or her] activities and some facts about himself [or herself] that he [or she] does not expose to the public eye, but keeps entirely to himself [or herself] or at most reveals only to his [or her] family or to close personal friends. Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man’s [or woman’s] life in his [or her] home, and some of his [or her] past history that he [or she] would rather forget…

         

    1. Hill v. Nat’l Collegiate Athletic Ass’n, 26 Cal. Rptr. 2d 834, 857 (Cal. 1994). 

    2. Cal. Const. art. 1, § 1 (West 2011). 

    3. Id. 

    4. Four Navy Seals v. Associated Press, S.D.Cal.2005, 413 F.Supp.2d 1136 at 1145 (2005) (“Plaintiffs lack a privacy interest in their faces under these circumstances where they photographed themselves while capturing or detaining prisoners and thereafter allowed the posting of the photos on the internet. Plaintiffs can take no refuge in their allegation that they intended that only certain individuals could gain access to the web site. An objectively reasonable person could not expect such photos to remain private under these circumstances.”). 

    5. Hill, 26 Cal. Rptr. 2d at 842. 

    6. Id. at 846. 

    7. Id. at 843. 

    8. Id. 

    9. Id. at 856. 

    10. Id. 

    11. Id. 

    12. Id. 

    13. Id. at 857. 

    14. Id. 

    15. Id. 

    16. Id. 

    17. Id. 

    18. Id. 

    19. See Haw. Const. art. I, §§ 6 7. 

    20. State Org. of Police Officers v. Society of Professional Journalists-University of Haw. Chapter, 83 Haw. 378, 398 (Haw. 1996). 

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  2. Civil Revenge Porn Law

    1. Introduction

      California Civil Code Section 1708.85 provides an individual with the right to bring a private cause of action against any person who, without consent, intentionally distributes nude or sexual imagery of that individual where the person should have known that there was a reasonable expectation that the imagery would remain private and the individual suffers damages (including, for example, loss of reputation, shame, hurt feelings and damage to profession or occupation). The statute also provides that the action may be brought using a pseudonym and that injunctive relief is available.

    2. Text of the Statute

      (a) A private cause of action lies against a person who intentionally distributes by any means a photograph, film, videotape, recording, or any other reproduction of another, without the other's consent, if (1) the person knew that the other person had a reasonable expectation that the material would remain private, (2) the distributed material exposes an intimate body part of the other person, or shows the other person engaging in an act of intercourse, oral copulation, sodomy, or other act of sexual penetration, and (3) the other person suffers general or special damages as described in Section 48a.

      (b) As used in this section, “intimate body part” means any portion of the genitals, and, in the case of a female, also includes any portion of the breast below the top of the areola, that is uncovered or visible through less than fully opaque clothing.

      (c) There shall be no liability on the part of the person distributing material under subdivision (a) under any of the following circumstances:

      (1) The distributed material was created under an agreement by the person appearing in the material for its public use and distribution or otherwise intended by that person for public use and distribution.

      (2) The person possessing or viewing the distributed material has permission from the person appearing in the material to publish by any means or post the material on an Internet Web site.

      (3) The person appearing in the material waived any reasonable expectation of privacy in the distributed material by making it accessible to the general public.

      (4) The distributed material constitutes a matter of public concern.

      (5) The distributed material was photographed, filmed, videotaped, recorded, or otherwise reproduced in a public place and under circumstances in which the person depicted had no reasonable expectation of privacy.

      (6) The distributed material was previously distributed by another person.

      (d) In addition to any other relief available at law, the court may order equitable relief against the person violating subdivision (a), including a temporary restraining order, or a preliminary injunction or a permanent injunction ordering the defendant to cease distribution of material. The court may grant injunctive relief maintaining the confidentiality of a plaintiff using a pseudonym as provided in subdivision (f).

      (e) The court may also grant, after holding a properly noticed hearing, reasonable attorney's fees and costs to the prevailing plaintiff.

      (f)(1) A plaintiff in a civil proceeding pursuant to subdivision (a), may proceed using a pseudonym, either John Doe, Jane Doe, or Doe, for the true name of the plaintiff and may exclude or redact from all pleadings and documents filed in the action other identifying characteristics of the plaintiff. A plaintiff who proceeds using a pseudonym and excluding or redacting identifying characteristics as provided in this section shall file with the court and serve upon the defendant a confidential information form for this purpose that includes the plaintiff's name and other identifying characteristics excluded or redacted. The court shall keep the plaintiff's name and excluded or redacted characteristics confidential.

      (2) All court decisions, orders, petitions, and other documents, including motions and papers filed by the parties, shall be worded so as to protect the name or other identifying characteristics of the plaintiff from public revelation.

      (3) As used in this subdivision, “identifying characteristics” includes, but is not limited to, name or any part thereof, address or any part thereof, city or unincorporated area of residence, age, marital status, relationship to defendant, and race or ethnic background.

      (4) The responsibility for excluding or redacting the name or identifying characteristics of the plaintiff from all documents filed with the court rests solely with the parties and their attorneys. Nothing in this section requires the court to review pleadings or other papers for compliance with this provision.

      (g) In an action pursuant to this section, the plaintiff shall state in the caption of the complaint “ACTION BASED ON CIVIL CODE SECTION 1708.85.”

      (h) Nothing in this section shall be construed to alter or negate any rights, obligations, or immunities of an interactive service provider under Section 230 of Title 47 of the United States Code. Nothing in this section shall be construed to limit or preclude a plaintiff from securing or recovering any other available remedy.

      (i) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

      (j) This section shall become operative on July 1, 2015.

    3. Cases

      As of October 2015, our search of California cases did not reveal any cases citing this statute.

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  3. Appropriation

    1. Introduction

      Pursuant to the Cal. Civ. Code § 3344, a person may sue for having their photograph used for a commercial purpose without his or her consent. A victim of the online publication of intimate photos or videos may sue the user of the material if s/he can argue that the user is deriving a commercial benefit from the material’s publication.

    2. Text of the Statute

      “(a) Any person who knowingly uses another's…photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent…shall be liable for any damages sustained by the person or persons injured as a result thereof….

      (b) As used in this section, "photograph" means any photograph or photographic reproduction, still or moving, or any videotape or live television transmission, of any person, such that the person is readily identifiable.

      (1) A person shall be deemed to be readily identifiable from a photograph when one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use.

      […]

      (g) The remedies provided for in this section are cumulative and shall be in addition to any others provided for by law.”1

    3. Cases

      1. Prince v. Out Publ. Inc., No. B140475, 2002 Cal. App. Unpub. LEXIS 5189 (Cal. Ct. App. Jan. 3, 2002).

        • Procedural Posture: Appeal from summary judgment in favor of defendants. Summary judgment was granted because plaintiff failed to file timely opposition to the motion. Also ruled that defendants were entitled to summary judgment on the merits.
        • Law: Cal. Civ. Code § 3344 (among others including libel, false light, publication of private facts, unlawful intrusion, common law misappropriation, statutory misappropriation, infliction of emotional distress).
        • Facts: Plaintiff is an actor and model. Photos at issue were taken without plaintiff’s permission while he was at a gay club that forbade cameras and photography of the patrons. Plaintiff alleged that the photos revealed his homosexuality to his family and friends for the first time. He alleged that the placement of the photographs in an article about drug use and unsafe sex practices at gay parties falsely portrayed him as a “drug whore.”
        • Outcome: Plaintiff had no recognizable misappropriation claim. The publication was protected by the First Amendment: “Publication of matters in the public interest, which rests on the right of the public to know and the freedom of the press to tell it, is not ordinarily actionable.” “For purposes of this section, a use of a . . . photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, . . . shall not constitute a use for which consent is required under subdivision (a).” In this case, the article was newsworthy: “The gay life-style is an element of popular culture and the Article about aspects of that life-style is protected by the First Amendment.”
      2. KNB Enters. v. Matthews, 92 Cal. Rptr. 2d 713 (Cal. Ct. App. 2000).

        • Procedural Posture: Plaintiff appealed trial court’s judgment granting defendant's motion for summary judgment stating that plaintiff's claim, under Cal. Civ. Code §3344, for defendant's commercial appropriation of the plaintiff’s photographs, when the defendant made an unauthorized commercial display on his website, was preempted by the federal Copyright Act.
        • Law: Cal. Civ. Code §3344.
        • Facts: Plaintiff owned the copyright to explicit photographs of models and displayed them on his own website. Defendant took plaintiff’s copyrighted pictures without permission and used them on his own website for commercial purposes. None of the models were known celebrities and the photographers were not “masters of the genre.”
        • Outcome: Reversed and remanded. California’s appropriation statute is not limited to celebrity plaintiffs. Failed the two-part preemption test because, 1) the subjects of the claims are the models' likenesses, which are not copyrightable even though they are embodied in a copyrightable work, and 2) “the right asserted under the state statute, the right of publicity, does not fall within the subject matter of copyright.”
    4. Practice Pointer

      The California appropriation statute adds two elements to the common law tort of appropriation. The defendant must have made a knowing use of the likeness for purposes of advertising or solicitation or purchases and the plaintiff must establish a "direct connection" between the use and the commercial purpose.

    1. Cal. Civ. Code, § 3344 (West 2011). 

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  4. Computer Crime

    1. Introduction

      Cal. Penal Code § 502(e)(1) allows the victim of computer crimes to bring a civil action against the perpetrator. Pursuant to the California Penal Code, the owner or lessee of a computer who suffers damage or loss due to the violation of Cal. Penal Code § 502(c) may bring a civil action against the violator for compensatory damages, injunctive relief or other equitable relief. Thus the person who takes intimate images from a victim’s computer or uses the victim's computer services to distribute the intimate images, is not only guilty of a crime, but is also civilly liable to the victim.

    2. Text of the Statute

      “(a) It is the intent of the Legislature in enacting this section to expand the degree of protection afforded to individuals, businesses, and governmental agencies from tampering, interference, damage, and unauthorized access to lawfully created computer data and computer systems. The Legislature finds and declares that the proliferation of computer technology has resulted in a concomitant proliferation of computer crime and other forms of unauthorized access to computers, computer systems, and computer data….

      [. . .]

      (c) Except as provided in subdivision (h), any person who commits any of the following acts is guilty of a public offense:

      (1) Knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data.

      (2) Knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network.

      (3) Knowingly and without permission uses or causes to be used computer services.

      (4) Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a computer, computer system, or computer network.

      [. . .]

      (6) Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or computer network in violation of this section.

      (7) Knowingly and without permission accesses or causes to be accessed any computer, computer system, or computer network.

      [. . .]

      (9) Knowingly and without permission uses the Internet domain name of another individual, corporation, or entity in connection with the sending of one or more electronic mail messages, and thereby damages or causes damage to a computer, computer system, or computer network.

      [. . .]

      (e)(1) In addition to any other civil remedy available, the owner or lessee of the computer, computer system, computer network, computer program, or data who suffers damage or loss by reason of a violation of any of the provisions of subdivision (c) may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief. Compensatory damages shall include any expenditure reasonably and necessarily incurred by the owner or lessee to verify that a computer system, computer network, computer program, or data was or was not altered, damaged, or deleted by the access. For the purposes of actions authorized by this subdivision, the conduct of an unemancipated minor shall be imputed to the parent or legal guardian having control or custody of the minor, pursuant to the provisions of Section 1714.1 of the Civil Code.

      (2) In any action brought pursuant to this subdivision the court may ward reasonable attorney’s fee….

      [. . .]

      (4) In any action brought pursuant to this subdivision for a willful violation of the provisions of subdivision (c), where it is proved by clear and convincing evidence that a defendant has been guilty of oppression, fraud, or malice as defined in subdivision (c) of Section 3294 of the Civil Code, the court may additionally award punitive or exemplary damages.”1

    3. Cases

      Research is ongoing.

    4. Practice Pointer

      Cal. Penal Code § 502 appears to be the state law equivalent of the federal Computer Fraud and Abuse Act (18 U.S.C. § 1030). Facebook, Inc. v. Power Ventures, Inc. (“Power Ventures I”),2 and a subsequent decision denying leave to file motion for reconsideration, Facebook, Inc. v. Power Ventures, Inc. (“Power Ventures II”),3 provide some helpful information on the law. In Power Ventures I, the court granted Facebook a preliminary injunction to prevent Power Ventures’ continued unpermitted work-arounds of code-based barriers on Facebook’s site, explaining that “where… a party access the network in a manner that circumvents technical or code-based barriers in place to restrict or bar a user’s access, then the access does qualify as being ‘without permission.’”4 Moreover, in Power Ventures II, the Court explained that “the costs Facebook incurred to block Defendants [Power Ventures] from the site, to investigate Defendants’ activities, and to have its attorneys attempt to stop Defendants from continuing the activities were sufficient to establish loss under the CFAA and § 502.”5 Accordingly, if a WMC plaintiff incurs costs to investigate and/or remediate any illegal access to or use of his or her intimate images, he or she may be compensated for those losses.

    1. Cal. Penal Code § 502 (Deering 2011). 

    2. 844 F. Supp. 2d 1025 (N.D. Cal. 2012). 

    3. No. 08-CV-5780-LHK, 2013 WL 5372341 (N.D. Cal. Sept. 25, 2013). 

    4. See id. at 1036.  

    5. 2013 WL 5372341 at *8-9 (noting that the “CFAA explicitly identifies the ‘cost of responding to an offense’ and ‘conducting a damage assessment’ as types of losses for which the [statute] confers standing”). 

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  5. Deceit

    1. Introduction

      A victim may sue for damages if the perpetrator’s acts were deceptive. This claim may be particularly useful for a situation in which a sex video/photo was created consensually, but with the promise that it would be kept private or deleted. The difficulty with this claim will be proving that the defendant had a specific intent to break the promise at the time the promise was made.

    2. Text of the Statute

      “Fraudulent Deceit. One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers.”1

      “A deceit, within the meaning of the last section is either:

      1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

      2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true;

      3. The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or

      4. A promise, made without any intention of performing it.”2

      The elements of a claim for fraud or deceit are:

      (1) Misrepresentation (false representation, concealment, or nondisclosure) of a material fact;

      (2) Knowledge of falsity or lack of reasonable ground for belief in the truth of the representation;

      (3) Intent to induce reliance;

      (4) Actual and justifiable reliance by the plaintiff; and

      (5) Resulting damage.3

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      It may be difficult to prove specific intent to break a promise. A quick review of the cases citing this statute provides some examples of such an intent:

      • Chelini v. Nieri , 32 Cal. 2d 480, 483, 487 (Cal. 1948)—The defendant’s promise that he would embalm the body of the plaintiff’s mother in such a way that the body would “keep almost forever” was fraudulent because the defendant knew he could not do so. Embalming a body so that it “keeps forever” is not possible, and the defendant did not have any “hermetically sealed” caskets in stock.
      • Lazar v. Super. Ct. , 49 Cal. Rptr. 2d 377,379-80 (Cal. 1996)—The defendant’s representations about the terms of the plaintiff’s employment were sufficient to state a claim of promissory fraud: (1) At the same time that the defendant stated that the plaintiff’s job would be secure, the defendant was planning a merger that would eliminate plaintiff’s job; (2) Although the defendant promised certain salary increases to the plaintiff, the defendant knew they would not materialize because the company had a policy in place that limited annual raises to two or three percent.
      • Tenzer v. Superscope, Inc. , 39 Cal. 3d 18, 30-31 (Cal. 1985)(internal citations omitted)—“‘[S]omething more than nonperformance is required to prove the defendant's intent not to perform his promise.’ [. . .] To be sure, fraudulent intent must often be established by circumstantial evidence. Prosser, for example, cites cases in which fraudulent intent has been inferred from such circumstances as defendant's insolvency, his hasty repudiation of the promise, his failure even to attempt performance, or his continued assurances after it was clear he would not perform. However, if plaintiff adduces no further evidence of fraudulent intent than proof of nonperformance of an oral promise, he will never reach a jury.”
    1. Cal. Civ. Code, § 1709 (West 2011). 

    2. Cal. Civ. Code, § 1710 (West 2011). 

    3. Orient Handel v. United States Fid. & Guar. Co., 237 Cal. Rptr. 667, 671 (Cal. Ct. App. 1987)(fraud); Hackenthal v. Nat’l Casualty Co., 234 Cal. Rptr. 853, 857 (Cal. Ct. App. 1987)(deceit); In re Napster, Inc., 479 F.3d 1078, 1096 (9th Cir. 2007)(“fraudulent deceit”). 

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  6. Defamation – Libel

    1. Introduction

      If a sex photo or video is published online, it may be accompanied by libelous statements about the victim. For example, comments accompanying the photo/video may state that the victim is infected with a sexually transmitted disease, is seeking sex in exchange for money, or is a porn star.

    2. Text of the Statute

      “Libel is a false and unprivileged publication by writing . . . or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”1

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      In People v. Rosa,2 the defendant was convicted of, among other things, one count of “identity theft” in violation of Cal. Penal Code 530.5(a) when he posted nude photos of his ex-wife Jennifer on the internet alongside false advertisements offering sexual favors, and providing her name and contact information. To be guilty under section 530.5, “the defendant must (1) willfully obtain personal identifying information of another person, and (2) use the identifying information for an unlawful purpose without the person’s consent.” Although the defendant argued that the statute was inapplicable because he did not use Jennifer’s identifying information for an unlawful purpose, the court rejected the argument explaining that he had used her information to commit libel. “Libel is an intentional tort,” and because the defendant used Jennifer’s “personal information to pose as her on the Internet and post sexually explicit and vulgar comments in a personal advertisement on a Web site page available to be seen by anyone with access to the Internet. In doing so, he exposed [her] to hatred, contempt, ridicule, and obloquy within the meaning of Civil Code section 45 and exposed himself to prosecution for identity theft.”3

      In California, plaintiffs have alleged defamation in cases that have settled before trial. The argument used in those cases is structured as follows:

      Libel is “a false and unprivileged publication by writing… which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”4 Libel that is “defamatory of the plaintiff without the necessity of explanatory matter,” is libel per se, or libel on its face, and is actionable without proof of special damages.5

      In California, the following publications have been found to constitute libel per se:

      • MacLeod v. Tribune Publishing Co., 52 Cal. 2d 536, 546 (Cal. 1959) (noting the breadth of the statutory definition of libel per se, and holding that a charge of communist affiliation, even if susceptible to an innocent interpretation, is libelous on its face).

      • Walker v. Kiousis, 114 Cal. Rptr. 2d 69, 76 (Cal. Ct. App. 2001) (defamatory meaning of allegations that police officer was highly discourteous “would be immediately apparent to any reader without knowing the facts”).

      • Selleck v. Globe International, Inc., 212 Cal. Rptr. 838, 846 (Cal. Ct. App. 1985) (article reporting that Tom Selleck’s father revealed his son’s “love secrets,” including that he was “ill at ease with women” to the newspaper was reasonably susceptible of a defamatory meaning on its face and therefore libelous per se).

      • Barnes-Hind, Inv. v. Super. Ct., 226 Cal. Rptr. 354 (Cal. Ct. App. 1986) (Accusations of crime are “[p]erhaps … the clearest example of libel per se”).

      If the above-listed publications were deemed libel per se, then surely the publication of a sexually explicit image or video of the Plaintiff accompanied by false statements about the Plaintiff also constitutes libel per se. For example, comments accompanying the photo/video may state that the victim is infected with a sexually transmitted disease, or is seeking sex in exchange for money, or is a porn star, to name a few.

      There is a New York case that has reached this holding. A New York trial court found that posting pornographic pictures of plaintiff linked to plaintiff’s name and photograph on other websites “allegedly falsely impl[ied] that [s]he [was] sexually lustful and promiscuous” and stated a cause of action for libel per se. Libel harmed the plaintiff’s online business of selling luxury handbags.6

    1. Cal. Civ. Code § 45 (West 2011). 

    2. People v. Rosa, No. F063748, 2013 WL 941728 (Cal. Ct. App. Mar. 12, 2013). 

    3. Id. at *9 (citing In re Rolando S., 197 Cal. App. 4th 936 (Cal. Ct. App. 2011) (finding that libel served as an underlying crime for identity theft where defendant impersonated his classmate on her Facebook account, changed her profile, changed her passwords, and posted offensive statements, for instance, that she “enjoyed engaging in oral copulation”)). 

    4. Id. 

    5. Cal. Civ. Code § 45a. 

    6. See Leser v. Penido, 879 N.Y.S.2d 107 (N.Y. Sup. Ct. 2009). 

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  7. Defamation – Slander

    1. Introduction

      If a sex photo or video is published online, it may be accompanied by slanderous statements. This situation seems more likely if the explicit material posted is accompanied by sound. However, it seems less likely that the statements would be oral rather than written (libel).

    2. Text of the Statute

      “Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:
      (1) Charges any person with crime, or with having been indicted, convicted, or punished of a crime;
      (2) Imputes in him the present existence of an infectious, contagious, or loathsome disease;
      (3) Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;
      (4) Imputes to him impotence or want of chastity; or
      (5) Which, by natural consequence, causes actual damage.”1

    3. Cases

      1. McKinney v. Morris, No. B240830, 2013 WL 5617125 (Cal. Ct. App. Oct. 15, 2013).

        • Procedural Posture: Appeal from lower court decision granting defendant’s anti-SLAPP motion in response to her claims that defendants defrauded and coerced her into participating in an interview with Academy Award winning director defendant under false pretenses, and signing a release consenting to the defendants’ use of the material in a production about the tabloid press—a documentary film entitled “Tabloid.”

        • Law: Invasion of privacy; defamation; intentional infliction of emotional distress; conversion; and unjust enrichment

        • Facts: In 2011, Plaintiff was the focus of a documentary film by Defendant that centered on the story of plaintiff’s trip to England in 1977 to rescue her fiancé from the Mormon church dubbed the “Manacled Mormon” story by British tabloids. Defendants claimed plaintiff signed a release, and also brought a motion to strike the suit under the anti-SLAPP laws because the publication of the movie exercised defendants’ First Amendment right to free speech on a public issue—tabloid journalism. Moreover, plaintiff was a limited purpose public figure because of her presence in the British tabloids, and other efforts to remain in the public eye later in her life, but could not establish actual malice by the defendants.2

        • Outcome: Affirmed. “We conclude defendants’ film presents a view of how the tabloid media operates as seen through the lens of plaintiff’s personal experiences in the maelstrom of the Manacled Mormon media circus. The film also includes additional aspects of plaintiff’s personal life, like the later publicity she received over the cloning of her dog. But the overall theme of Tabloid nevertheless concerns the broader scope subject of tabloid journalism.”3

    1. Cal. Civ. Code § 46 (West 2011). 

    2. McKinney v. Morris, No. B240830, 2013 WL 5617125, at *15-16 (Cal. Ct. App. Oct. 15, 2013) 

    3. Id. at *12. 

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  8. Eavesdropping

    1. Introduction

      A victim who has been recorded without consent may bring a civil action for eavesdropping under the California Penal Code. There is some disagreement concerning whether the recording of sexual activity, without accompanying conversation, constitutes a “communication” under the statute. A person who records sexual activity without the consent of the parties engaged in the activity may also be criminally charged with eavesdropping.

    2. Text of the Statute

      Legislative intent:

      “The Legislature hereby declares that advances in science and technology have led to the development of new devices and techniques for the purpose of eavesdropping upon private communications and that the invasion of privacy resulting from the continual and increasing use of such devices and techniques has created a serious threat to the free exercise of personal liberties and cannot be tolerated in a free and civilized society. The Legislature by this chapter intends to protect the right of privacy of the people of this state.

      The Legislature recognizes that law enforcement agencies have a legitimate need to employ modern listening devices and techniques in the investigation of criminal conduct and the apprehension of lawbreakers. Therefore, it is not the intent of the Legislature to place greater restraints on the use of listening devices and techniques by law enforcement agencies than existed prior to the effective date of this chapter.”1

      Criminal Recording of Confidential Information:

      “(a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.”2

      Civil action by person injured; injunction:

      “(a) Any person who has been injured by a violation of this chapter [Title 15, Chapter 1.5—Invasion of Privacy] may bring an action against the person who committed the violation for the greater of the following amounts:

      (1) Five thousand dollars ($5,000).

      (2) Three times the amount of actual damages, if any, sustained by the plaintiff.

      (b) Any person may, in accordance with Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, bring an action to enjoin and restrain any violation of this chapter, and may in the same action seek damages as provided by subdivision (a).

      (c) It is not a necessary prerequisite to an action pursuant to this section that the plaintiff has suffered, or be threatened with, actual damages.”3

    3. Cases

      Research is ongoing. For factually relevant cases, please see "Eavesdropping" in the California criminal section.

    1. Cal. Penal Code § 630 (West 2011). 

    2. Cal. Penal Code § 632 (West 2011). 

    3. Cal. Penal Code § 637.2 (West 2011). 

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  9. Extortion

    1. Introduction

      A victim may bring a civil claim for extortion if s/he receives a threat that his/her private images will be published online unless the victim undertakes some prescribed conduct. This type of situation may also lead to criminal charges.

    2. Text of the Statute/Elements of a Claim1

      • Cal. Penal Code § 523

        "Every person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519, is punishable in the same manner as if such money or property were actually obtained by means of such threat."2

      • Cal. Penal Code § 519

        “Fear, such as will constitute extortion, may be induced by a threat, either:

        1. To do an unlawful injury to the person or property of the individual threatened or of a third person; or,

        2. To accuse the individual threatened, or any relative of his, or member of his family, of any crime; or,

        3. To expose, or to impute to him or them any deformity, disgrace or crime; or,

        4. To expose any secret affecting him or them.”3

    3. Cases

      Please see “Extortion” in the California Statutory Criminal Law for factually relevant cases. On December 10, 2013, the California Attorney General, Kamala Harris, announced the arrest of the alleged owner and operator of a revenge porn website who facilitated the posting of more than 10,000 sexually explicit photographs and extorted victims for as much as $350 to remove the illicit content.4 The AG charged Bollaert with 31 felony counts of conspiracy, identity theft under Sections 530.5 and 653m(b), and extortion. He faces possible jail time and fines. The complaint alleges that in December 2012, Bollaert created the website uposted.com, which allows the anonymous, public posting of private photographs containing nude and explicit images of individuals without their permission. The website required the poster to include the subject’s full name, location, age and facebook profile link. Court documents also allege that Bollaert created a second website, changemyreputation.com, in October 2012, which he used when individuals contacted ugotposted.com requesting that content be removed from the site. Bollaert would allegedly extort victims by replying with a changemyreputation.com email address and offering to remove the emails, and he told investigators that he made around $900/month from advertising on the site, as well as payments totaling tens of thousands of dollars from users. Victims of revenge porn will want to closely follow People v. Bollaert to see how it proceeds.

    4. Practice Pointer

      Recent case law demonstrates that the California Penal Code also gives rise to a civil cause of action for extortion.5 To bring a cause of action for the tort of extortion, the plaintiff must demonstrate one of the four elements listed in Cal. Penal Code, Section 519, and also establish injury and causation. In a case of attempted extortion, the plaintiff must show that “(1) the [defendant] sent or delivered to [the plaintiff] written correspondence; (2) that this writing expressed or implied a threat listed in section 519; (3) the [defendant] intended to extort money or property from [the plaintiff]; (4) the plaintiff suffered harm; and (5) the harm was caused by the [defendant].”6

    1. Monex Deposit Co. v. Gilliam, 680 F. Supp. 2d 1148, 1156 (C.D. Cal. 2010)(noting that a civil claim for extortion is implied from Cal. Penal Code §§ 523 and and 519 and setting forth elements of a civil extortion claim). 

    2. Cal. Penal Code § 523 (West 2011). 

    3. Cal. Penal Code § 519 (West 2011). 

    4. People v. Bollaert—Complaint filed Dec. 10, 2013, available at http://oag.ca.gov/news/press-releases/attorney-general-kamala-d-harris-a... (last visited Jan. 6, 2014). 

    5. See, e.g., Flatley v. Mauro, 46 Cal. Rptr. 3d 606 (Cal. 2006) (plaintiff entertainer sued attorney for civil extortion); Monex Deposit Co. v. Gilliam , 680 F. Supp. 2d 1148, 1156 (C.D. Cal. 2010) (setting forth elements for the civil tort of extortion, and awarding damages of $2,352,317, against defendants who demanded that Monex refund money owed or else defendants would register and use http://www.MonexFRAUD.com to destroy Monex’s business). 

    6. See Monex, 680 F. Supp. at 1155. 

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  10. Fraud In Making A Contract

    1. Introduction

      This claim is very similar to deceit, but is particular to the context of making a contract. A victim who received consideration for the creation of sexual photos/videos under a contract that involved a promise of confidentiality or deletion, may have a claim under this statute if the photos/videos were then published online. As with deceit, it will be difficult to prove specific intent to break a promise at the time the promise was made.

    2. Text of the Statute

      “Actual fraud, within the meaning of this Chapter, consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract:

      1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
      2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
      3. The suppression of that which is true, by one having knowledge or belief of the fact;
      4. A promise made without any intention of performing it; or,
      5. Any other act fitted to deceive.”1
    3. Cases

      Research is ongoing.

    4. Practice Pointers

      The remedy for this claim would be damages under the contract.

      In Limandri v. Wildman, Harrold, Allen & Dixon, LLP,2 plaintiff attorney claimed that defendant had acted fraudulently in agreeing to keep confidential a sex-tape featuring the attorney’s client, former Miss California USA Carrie Prejean, in return for their agreement to settle Prejean’s defamation claims against defendants. Based on that sex-tape, defendants had cross-complained against Prejean for breach of contract (asserting that she had breached her contractual agreement that she would not allow lurid photos to be taken of her that could be associated with her title of Miss California USA), and when she saw the video, she agreed to settle for very little consideration. The settlement details were later leaked to online gossip website TMZ, indicating that one of the defendants or their lawyer had to have leaked the information about the tape. The court, however, denied the claim that the defendants had defrauded plaintiff and his client by promising to keep the tape confidential because all actions taken during the settlement processed are privileged. Notably, Prejean’s lawyer, and not Prejean herself sued. He, like the parties themselves, as well as the defense lawyers, was also a signatory of the confidentiality agreement, and therefore, was entitled to sue upon the alleged breach.

    1. Cal. Civ. Code § 1572 (West 2011). 

    2. No. 2013 WL 2451322 (Cal. Ct. App. June 6, 2013). 

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  11. Gender Violence

    1. Introduction

      This cause of action allows a victim to bring a civil suit for acts that were motivated by gender and constitute a criminal offense involving force or threat of force, regardless of whether the offense resulted in prosecution or conviction. The victim can seek actual damages, compensatory damages, punitive damages, and injunctive relief. This is a relatively new law (enacted in 2002) and has only been cited in eleven opinions to date. Because the nature of the intimate images will almost certainly be tied to the victim’s gender, this statute may be useful to victims who have been harmed by the publication of images that portray acts they engaged in because of the use or threat of force or coercion.

    2. Text of the Statute

      The statute defines gender violence as either:

      “(1) one or more acts that would constitute a criminal offense under state law and that have as an element the use, attempted use, or threatened use of physical force against the person or property of another, committed at least in part based on the gender of the victim, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction; or

      (2) a physical intrusion or physical invasion of a sexual nature under coercive conditions, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction.”1

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      Under this statute a victim can seek actual damages, compensatory damages, punitive damages and injunctive relief (or any combination of those remedies).

      None of the available opinions explore the meaning of “committed at least in part based on the gender of the victim,” but the legislative history suggests that one purpose of this statute was to lessen the burden on the plaintiff and require only proof that gender bias was “merely one of the motivating factors for the prohibited act, not the sole or predominant factor.”2

      As of December 2013, the gender violence statute has been cited in only 22 opinions since it was enacted in 2002. The majority of these cases only mention that gender violence was one among many claims without providing any analysis of the gender violence claim. In all of these cases, the offending acts underlying the lawsuits included some kind of actual physical force, although some included threats of physical force along with the actual use of force.

      In Greenwald v. Bohemian Club, Inc., the court did analyze the plaintiff’s gender violence claims and granted the defendant’s motion to dismiss.3 Most of the acts were dismissed because they were time-barred, including (1) a sexual assault and (2) battery involving a serving cart.4 The plaintiff also used a threat to support her claim—a comment made by a supervisor that he would overload her schedule so that she would be likely to suffer a physical injury—but that was not allowed to be the basis of the gender violence claim because the comment did not involve a threat of physical violence against the plaintiff by the supervisor.5

      According to legislative reports, the gender violence statute was enacted to counter the U.S. Supreme Court’s holding in United States v. Morrison , which invalidated the portion of the federal Violence Against Women Act, that provided a civil remedy for victims of domestic violence.6 The legislative findings that supported this bill were: “(1) that existing laws do not adequately prevent and remedy gender-related violence, (2) that acts of domestic violence and sexual abuse on the basis or gender constitute a form of sexual discrimination; and (3) that the purpose of this act is to protect the civil rights of victims of gender-motivated crimes.”7

    1. Cal. Civ. Code § 52.4 (West 2011). 

    2. See Senate Judiciary Committee, Committee Analysis of A.B. 1928 (June 25, 2002). 

    3. Greenwald v. Bohemian Club, Inc., No. C 07-05261 WHA, 2008 WL 2331947, *7 (N.D. Cal. June 4, 2008). 

    4. Id. 

    5. Id. 

    6. United States v. Morrison, 529 U.S. 598 (2000). 

    7. See Senate Judiciary Committee, Committee Analysis of A.B. 1928 (June 25, 2002). 

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  12. Invasion of Privacy to Capture Physical Impression (AKA “Anti-Paparazzi Act”)

    1. Introduction

      Although it is referred to as the “Anti-Paparazzi Act,” Cal. Civ. Code § 1708.8 provides an individual with the right to bring an action against any person, not solely members of the paparazzi, who trespasses onto another’s property in order to capture an image of the individual engaged in personal activity. Furthermore, the victim of such action need not be a celebrity. This section may prove useful for a person who has been the victim of a peeping Tom.

    2. Text of the Statute

      “(a) A person is liable for physical invasion of privacy when the defendant knowingly enters onto the land of another person without permission or otherwise committed a trespass in order to physically invade the privacy of the plaintiff with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity and the physical invasion occurs in a manner that is offensive to a reasonable person.

      (b) A person is liable for constructive invasion of privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the visual or auditory enhancing device was used.

      […]

      (e) A person who directs, solicits, actually induces, or actually causes another person, regardless of whether there is an employer-employee relationship, to violate any provision of subdivision (a), (b), or (c) is liable for any general, special, and consequential damages resulting from each said violation. […]

      (f) (1) The transmission, publication, broadcast, sale, offer for sale, or other use of any visual image, sound recording, or other physical impression that was taken or captured in violation of subdivision (a), (b), or (c) shall not constitute a violation of this section unless the person, in the first transaction following the taking or capture of the visual image, sound recording, or other physical impression, publicly transmitted, published, broadcast, sold or offered for sale, the visual image, sound recording, or other physical impression with actual knowledge that it was taken or captured in violation of subdivision (a), (b), or (c), and provide compensation, consideration, or remuneration, monetary or otherwise, for the rights to the unlawfully obtained visual image, sound recording, or other physical impression.

      […]

      (3) Any person that publicly transmits, publishes, broadcasts, sells or offers for sale, in any form, medium, format or work, a visual image, sound recording, or other physical impression that was previously publicly transmitted, published, broadcast, sold or offered for sale, by another person, is exempt from liability under this section.

      […]

      (5) This section applies only to a visual image, sound recording, or other physical impression that is captured or taken in California in violation of subdivision (a), (b), or (c) after January 1, 2010, and shall not apply to any visual image, sound recording, or other physical impression taken or captured outside of California.

      […]

      (j) It is not a defense to a violation of this section that no image, recording, or physical impression was captured or sold.

      […]

      (l) For the purposes of this section, "personal and familial activity" includes, but is not limited to, intimate details of the plaintiff's personal life, interactions with the plaintiff's family or significant others, or other aspects of the plaintiff's private affairs or concerns. "Personal and familial activity" does not include illegal or otherwise criminal activity as delineated in subdivision (g). However, "personal and familial activity" shall include the activities of victims of crime in circumstances under which subdivision (a), (b), or (c) would apply. […].”1

    3. Cases

      1. Bedolla v. Aglony, No. H032125, 2009 Cal. App. Unpub. LEXIS 755 (Cal. Ct. App. Jan. 28, 2009).

        • Procedural Posture: Defendant appealed damages award to plaintiff for invasion of privacy under the California Civil Code.
        • Law: Statutory invasion of privacy under Cal. Civ. Code § 1708.8
        • Facts: Defendant, plaintiff’s neighbor, made a hole in the wall of plaintiff’s bedroom through which he spied on her. The police found evidence that the defendant owned a video surveillance camera, which he used to view inside the plaintiff’s bedroom. When plaintiff discovered the hole in her bedroom wall, she called the police and moved in with her mother. She testified that she would regularly stand in front of the mirror nude after showering.
        • Outcome: The court concluded that the use of a video camera to spy on the plaintiff merited a higher award per Cal. Civ. Code § 1708.8, which requires the use of an audio or video recording device in contrast to the common law invasion of privacy tort. The court noted that Cal. Civ. Code § 1708.8 does not solely apply to paparazzi situations.
    4. Practice Pointer

      This statute primarily creates liability for the party who illegally obtains the image. The transmission, publication, broadcast, sale, offer for sale, or other use of the image, does not create liability under the statute unless the party who broadcasts or otherwise publishes the image is: (1) the first to do so; (2) had actual knowledge that the image was obtained illegally; and (3) paid for the image, or paid the person who obtained the image to do so.2 Thus, after the first publication, parties who republish the image are not liable under this statute.

    1. Cal. Civ. Code § 1708.8 (West 2011). 

    2. Cal. Civ. Code § 1708.8(f)(1),(3) (West 2011). 

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  13. Sexual Battery

    1. Introduction

      This would be an appropriate claim to add to a suit where the victim was unable to consent to the sexual contact portrayed in the video or photograph. Additionally, this claim may be useful if, as a result of the online publication, the victim suffered an additional sexual assault. For example, this would be appropriate if a victim was assaulted after the perpetrator was inspired to do so by a sexual image posted online accompanied by comments reporting that the victim had a rape fantasy or was seeking sexual encounters.

    2. Text of the Statute

      “(a) A person commits a sexual battery who does any of the following:

      (1) Acts with the intent to cause harmful or offensive contact with an intimate part of another, and sexually offensive contact with that person directly or indirectly results.

      (2) Acts with the intent to cause a harmful or offensive contact with another by use of his or her intimate part, and sexually offensive contact with that person directly or indirectly results.

      (3) Acts to cause an imminent apprehension of the conduct described in either the first or the second paragraph above, and a sexually offensive contact with that person directly or indirectly results.”1

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      Under this statute a defendant is liable for general damages, special damages, and punitive damages.

    1. Cal. Civ. Code § 1708.5(a) (West 2011). 

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  14. Stalking

    1. Introduction

      The victim of the nonconsensual online publication of intimate photographs or videos can bring a claim for stalking in situations where the publication of the material was conducted for the purpose of harassing the victim and the harasser either threatened the victim or his/her family or was under a restraining order.

    2. Text of the Statute

      “A person is liable for the tort of stalking when the plaintiff proves all of the following elements:

      (1) The defendant engaged in a pattern of conduct the intent of which was to follow, alarm, or harass the plaintiff. In order to establish this element, the plaintiff shall be required to support his or her allegations with independent corroborating evidence.

      (2) As a result of that pattern of conduct, the plaintiff reasonably feared for his or her safety, or the safety of an immediate family member.

      (3) One of the following elements:

      (a) The defendant, as part of the pattern of conduct specified in the first paragraph above, made a credible threat with the intent to place the plaintiff in reasonable fear for his or her safety, or the safety of an immediate family member and, on at least one occasion, the plaintiff clearly and definitively demanded that the defendant cease and abate his or her pattern of conduct and the defendant persisted in his or her pattern of conduct.

      (b) The defendant violated a restraining order, including, but not limited to, any order issued pursuant to the Code of Civil Procedure section 527.6, prohibiting any act described in Civil Code section 1708.7(a).”1

    3. Cases

      1. People v. Rosa, No. F063748, 2013 WL 941728 (Cal. Ct. App. Mar. 12, 2013).

        • Procedural Posture: Defendant appealed from jury convictions on charges arising from defendant’s course of conduct to terrorize his ex-wife.

        • Law: Stalking; personation; identity theft; unauthorized electronic distribution of personal identifying information

        • Facts: Defendant Rosa was married to the victim for 10 years. The victim relocated to California, and the parties divorced. Shortly thereafter, while the victim was working at a bank, she began receiving phone calls from men saying they were calling about her ad on an Internet web site. Over a three-week period, she received at least 12 calls from men she’d never met; she was also shouted at by another man, and another man waited at her car after work and made rude comments to her. The calls went on for weeks—the victim changed jobs, and had to move because of the constant harassment. The victim eventually checked the website and found an advertisement in the personal ads section containing four nude photographs of her taken during her marriage to defendant. She never gave him permission to display the photos publicly. She reported the ads to the police, and subpoenas to the Internet service provider identified the subscriber as Rosa’s former room-mate. After being convicted by a jury, Rosa appealed, arguing that the convictions should be overturned

        • Outcome: The convictions were affirmed. As to the stalking claim, Rosa argued for reversal of the conviction because he did not have the ability to carry out the threats at the time they were made because he was living in Idaho at the time, and the victim resided in California. According to Rosa, the distance between them rendered any threats incredible because he had no apparent ability to carry it out. The court rejected Rosa’s argument, asserting that he was trying to add the term “immediately” to the law’s requirement that the defendant have the “apparent ability to carry out” the threat. The court explained: “That Rosa possessed guns and the ability to travel from Idaho to California was substantial evidence that he had the ability to carry out his threat within the meaning of the statute. While the ‘apparent ability to carry out the threat’ requirement of section 646.9 may preclude a conviction under some undefined circumstances, this is not that case.”2

      2. In re Marriage of Nadkarni, 93 Cal. Rptr. 3d 723 (Ct. App. 2009).

        • Procedural Posture: Ex-wife appealed denial of the extension of a Domestic Violence Prevention Act restraining order against her ex-husband.

        • Law: Domestic Violence Restraining Order—Cal. Fam. Code § 6320; Civil Harassment—Cal. Civ. Proc. § 527(b); Civil Stalking Statute—Cal. Civ. Code § 1708.7

        • Facts: Following their divorce, ex-wife discovered that ex-husband had accessed her email account without her permission. Ex-wife sought restraining order to prohibit ex-husband from accessing her email, and force him to return all of the material he had previously obtained. She received a temporary restraining order, but was denied an extension. The temporary restraining order enjoined the ex-husband from “engag[ing] in any behavior that has been or could be enjoined such as blackmail, slander, stalking, threatening, harassing, and disturbing the peace of [ex-wife] or third parties through the use of personal information accessed through [ex-wife’s] email.” Ex-wife was concerned that content from emails would be used to publicly humiliate her: “I am also quite disturbed by [ex-husband's] statement [in his August 31, 2007 supplemental declaration] ... ‘that I have procured more evidence from the above-mentioned email accounts, which could be considered inflammatory and sensitive to certain others. I have no intention to share these emails other than as evidence in future legal proceedings.’ Given that the information was in my email account, I believe this statement is a direct threat that unless I succumb to his demands in the family law case, he will interfere and directly impact my business relationships. I also believe he will file my personal emails in the family court action in order to embarrass me, and to injure my relationships with my family members and third-parties, including professional clients.”

        • Outcome: Denial of restraining order reversed. Trial court was instructed to hold a hearing on the merits of the application for restraining order and allow presentation of additional evidence.

    4. Practice Pointers

      The existence of a restraining order allows a victim to obtain relief for stalking based on a reasonable fear that s/he was unsafe due to a pattern of harassment.

    1. Cal Civ. Code § 1708.7 (West 2011). 

    2. People v. Rosa, No. F063748, 2013 WL 941728, at *8 (Cal. Ct. App. Mar. 12, 2013). 

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  15. Unruh Civil Rights Act

    1. Introduction

      The Unruh Civil Rights Act provides a cause of action to victims who have been the target of violence, or threat of violence against their persons or property, because of their sex, marital status, or sexual orientation. This cause of action could be helpful to a victim of the online publication of intimate images if the publication is accompanied by violent threats.

    2. Text of the Statute

      “(a) All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51, [. . .] or because another person perceives them to have one or more of those characteristics. The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive.

      (b) All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

      [. . .]

      (e) For purposes of this section:

      [. . .]

      (4) “Sex” has the same meaning as defined in subdivision (p) of Section 12926 of the Government Code.

      [Cal. Gov’t Code § 12926(p):

      “(p) ‘Sex’ includes, but is not limited to, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. “Sex” also includes, but is not limited to, a person's gender, as defined in Section 422.56 of the Penal Code.”

      Cal. Penal Code § 422.56:

      “(c) ‘Gender’ means sex, and includes a person's gender identity and gender related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth.”]

      (5) “Sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation” includes a perception that the person has any particular characteristic or characteristics within the listed categories or that the person is associated with a person who has, or is perceived to have, any particular characteristic or characteristics within the listed categories.

      (6) “Sexual orientation” has the same meaning as defined in subdivision (q) of Section 12926 of the Government Code.” 1

      [Cal. Gov’t Code § 12926(q): “‘Sexual orientation’ means heterosexuality, homosexuality, and bisexuality.”]

    3. Cases

      1. D.C. v. Harvard-Westlake School , 98 Cal. Rptr. 3d 300 (Cal. Ct. App. 2009).

        • Procedural Posture: Arbitration that found in favor of defendant school and awarded expenses to it was appealed by plaintiff parents who had sued defendnat after their son was the target of online hate speech due to his perceived sexual orientation.
        • Law: In the first amended complaint, the plaintiffs combined the prior claims for assault, conspiracy to commit assault, death threats, and hate crimes into one cause of action alleging a violation of the Ralph Unruh Civil Rights Act (Cal. Civ. Code § 51.7) and the Tom Bane Civil Rights Act (Cal. Civ. Code § 52.1). This hate crime cause of action was one of nine causes of action. (The other eight causes of action were: public disclosure of private facts, defamation, false light, two emotional distress claims, Cal. Civ. Code § 1714.1—making parents liable for their children’s misconduct, negligent supervision of students, and fraudulent inducement).
        • Facts: “Several students at Harvard-Westlake, using its computers, went to the Web site and posted death threats against [plaintiff son] and made derogatory comments about him." One post read, “I'm going to pound your head in with an ice pick.” Another said, “Faggot, I'm going to kill you.” A third stated, “You are an oversized faggot.... I just want to hit you in the neck-hard.... [G]o to the 405 [freeway] bridge and jump.” A fourth read, “I hate fags.... You need to be stopped.” One student wrote, “I am looking forward to your death.” Another commented, “Not only are you a massive fagmo, but must absolutely quit showing your face at my school. You are now officially wanted dead or alive.” One post read, “I want to rip out your fucking heart and feed it to you.” Several other posts couched threats with references to plaintiff son's misperceived sexual orientation as a homosexual.”2
        • Outcome: Judgment was reversed, ordered trial court to make sure that plaintiffs did not pay attorneys’ fees barred by hate crime statutes.3
        • Practice Pointers: Initials were used in this case, but full name of parents used in the district court: Caplin v. Harvard-Westlake School .4 Note that this case does not involve publication of sexual photos, but does illustrate prevalence of sexualized violence online.
        • Subsequent cases: Plaintiffs also sued one of the students and his parents for hate crime, defamation, and intentional infliction of emotional distress in D.C. v. R.R .5
    4. Practice Pointers

      Persons found denying a right in violation of Section 51.7 may be liable for actual damages as awarded by a jury or judge, a civil penalty of $25,000 (if the suit is brought by a state attorney), and attorney fees.6 The harmed individual is able to bring a civil suit in her/his own name for damages, injunctive relief, or other equitable relief.7

    1. Cal. Civ. Code § 51.7(a). 

    2. D.C. v. Harvard-Westlake School, 98 Cal. Rptr. 3d 300, 304 (Cal. Ct. App. 2009). 

    3. See Cal. Civ. Code §§ 52(b)(3), 52.1. 

    4. Caplin v. Harvard-Westlake School, 2007 Westlaw 5659331 (Cal. Super. Ct. Aug. 14, 2009). 

    5. D.C. v. R.R., 106 Cal. Rptr. 3d 399 (Cal. Ct. App. 2010). 

    6. See Cal Civ. Code § 52(b). 

    7. See Cal. Civ. 52.1(b). 

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  16. Tort of Domestic Violence

    1. Introduction

      In 2002, the California Legislature created a new tort of domestic violence. The victim of an online publication of intimate images may bring a claim of the tort of domestic violence in situations involving bodily injury or the reasonable apprehension of imminent serious bodily injury.

    2. Text of the Statute

      “(a) A person is liable for the tort of domestic violence if the plaintiff proves both of the following elements:

      (1) The infliction of injury upon the plaintiff resulting from abuse, as defined in subdivision (a) of Section 13700 of the Penal Code.

      (2) The abuse was committed by the defendant, a person having a relationship with the plaintiff as defined in subdivision (b) of Section 13700 of the Penal Code.

      (b) A person who commits an act of domestic violence upon another is liable to that person for damages, including, but not limited to, general damages, special damages, and punitive damages pursuant to Section 3294.

      (c) The court, in an action pursuant to this section, may grant to a prevailing plaintiff equitable relief, an injunction, costs, and any other relief that the court deems proper, including reasonable attorney's fees.

      (d) The rights and remedies provided in this section are in addition to any other rights and remedies provided by law.

      (e) The time for commencement of an action under this section is governed by Section 340.15 of the Code of Civil Procedure.”1

      • Definition of Abuse under Cal. Penal Code § 13700(a):

        “‘Abuse’ means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.”

      • Definition of Domestic Violence under Cal. Penal Code § 13700(b):

        “‘Domestic violence’ means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. For purposes of this subdivision, “cohabitant” means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as husband and wife, (5) the continuity of the relationship, and (6) the length of the relationship.”

    3. Cases

      Research is ongoing. There are only eight opinions citing this statute to date, and none involve online publication of intimate images.

    4. Practice Pointer

      The court recognized a non-physical act as abuse in Pugliese v. Superior Court.2 That case involved a fifteen-year relationship, where the plaintiff ex-wife brought a civil action against her ex-husband for the tort of domestic violence.3 At the time plaintiff brought the case, there had been no physical acts for over three years, but emotional abuse had continued. The defendant moved to exclude all acts that occurred before the three years leading up to the lawsuit because of the statute of limitations, and the trial court granted his motion.4 Plaintiff appealed, and the appellate court ordered the trial court to set aside the motion finding that the legislative history of the tort of domestic violence indicated that “damages are available to victims of domestic violence, not just for the ‘last act’ of abuse, but for acts occurring prior to the date of the ‘last act.’”5 The finding in this case suggests that a victim of the online publication of intimate videos may be able to pursue a claim for the tort of domestic violence, even if the publication occurs years after physical abuse ceased.

    1. Cal. Civ. Code § 1708.6 (West 2011). 

    2. Pugliese v. Super. Ct., 53 Cal. Rptr. 3d 681, 683 (Cal. Ct. App. 2007). 

    3. Id. 

    4. Id. 

    5. Id. at 1455. 

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  17. Identity Theft

    1. Introduction

      The following statutes provide civil causes of action (felony or misdemeanor causes of action) to individuals whose online identities (social media sites, email, etc.) have been stolen and used to post sexually explicit messages or photos without their knowledge or consent. The laws are also punishable by imprisonment.

    2. Text of the Statute(s)

      There are two relevant California “identity theft” statutes. The first states:

      (a) Notwithstanding any other provision of law, any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating ,threatening, or defrauding another person is guilty of a public offense punishable pursuant to subdivision (d);

      (b) For purposes of this section, an impersonation is credible if another person would reasonably believe, or did reasonably believe, that the defendant was or is the person who was impersonated;

      (c) For purposes of this section, 'electronic means' shall include opening an e-mail account or an account or profile on a social networking Internet Web site in another person's name;

      (d) A violation of subdivision (a) is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not exceeding one year, or both that fine and imprisonment;

      (e) In addition to other civil remedy available, a person who suffers damages or loss by reason of a violation of subdivision (a) may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief pursuant to paragraphs (1), (2), (4), and (5) of subdivision (e) and subdivision (g) of Section 502;

      (f) This section shall not preclude prosecution under any other law.1

      There is also a statute for “willful identity theft,” which can be prosecuted as a misdemeanor or as a felony. The law reads as follows:

      (a) Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for an unlawful purpose, including to obtain or attempt to obtain, credit, goods, services, real property or medical information without the consent of that person, is guilty of a public offense, and upon conviction therefor shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170…2

      The distinction between the two statutes is whether the defendant acted “willfully” and whether he or she used that information for an “unlawful purpose.”

    3. Cases

      1. [Names Redacted for Privacy], No. 112CV233490 (Santa Clara Co. Super. Ct. Feb. 18, 2014).

        • Procedural Posture: Complaint filed in Santa Clara County Superior Court on October 3 2011 alleging that defendant 1 failed to safeguard sexually explicit photos of plaintiff and that defendant 2 posted these photos online.

        • Law: Impersonation through Internet or Electronic Means (Cal. Penal Code § 528.5, which carries a private right of action) (also, but not discussed here: Negligence, Negligent Infliction of Emotional Distress, Intentional Infliction of Emotional Distress, Intrusion into Private Affairs and Public Disclosure of Private Facts) 

        • Facts: Plaintiff's ex-boyfriend (defendant 1) possessed intimate photos of plaintiff taken consensually during their relationship. Several years later, defendant 1's current girlfriend (defendant 2) obtained the photos of plaintiff and posted them on a new Facebook account created in plaintiff's name. Defendant 2 then sent friend requests to plaintiff's friends, relatives and work associates using this account.

        • Outcome: Plaintiff's Impersonation through Internet or Electronic Means claim was unsuccessful, but plaintiff was awarded a total of $190,000 for her Negligence, Intrusion into Private Affairs and Public Disclosure of Private Facts claims and another $60,000 in punitive damages.

      2. People v. Rosa, No. F063748, 2013 WL 941728 (Cal. Ct. App. Mar. 12, 2013).

        • Procedural Posture: Defendant appealed from jury convictions on charges arising from defendant's course of conduct to terrorize his ex-wife.

        • Law: Stalking; personation; identity theft; unauthorized electronic distribution of personal identifying information

        • Facts: Defendant Rosa was married to the victim for 10 years. The victim relocated to California, and the parties divorced. Shortly thereafter, while the victim was working at a bank, she began receiving phone calls from men saying they were calling about her ad on an Internet web site. Over a three-week period, she received at least 12 calls from men she'd never met; she was also shouted at by another man, and another man waited at her car after work and made rude comments to her. The calls went on for weeks—the victim changed jobs, and had to move because of the constant harassment. The victim eventually checked the website and found an advertisement in the personal ads section containing four nude photographs of her taken during her marriage to defendant. She never gave him permission to display the photos publicly. She reported the ads to the police, and subpoenas to the Internet service provider identified the subscriber as Rosa's former roommate. After being convicted by a jury, Rosa appealed, arguing that the convictions should be overturned.

        • Outcome: The convictions were affirmed. As to identity theft, the defendant argued that the statute was inapplicable because he had not taken the victim's identity for an “unlawful purpose.” However, the court disagreed, finding that the tort of libel sufficed to satisfy the statute: “Rosa … used Jennifer's personal information to pose as her on the Internet and post sexually explicit and vulgar comments in a personal advertisement on a Web site page available to be seen by anyone with access to the Internet. In doing so, he exposed the victim to hatred, contempt, ridicule, and obloquy within the meaning of Civil Code section 45, and exposed himself to prosecution for identity theft.”3

      3. In re Rolando S., 197 Cal. App. 4th 936 (Cal. Ct. App. 2011).

        • Procedural Posture: Defendant teenager appealed from wardship petition alleging that he committed identity theft.

        • Law: Identity theft

        • Facts: Defendant was one of several people to receive an unsolicited text message providing the password to the victim's email account. He used this email password and account to gain access to the victim's Facebook account, where he posted, in her name, prurient messages on two of her male friends' pages (walls) and altered her profile description in a vulgar way. The victim found out about the messages and told her father, who removed the messages and called the police. Defendant admitted to the police that he had posted the messages on her account, but he argued that he had not “willfully” obtained the account information because it was sent to him in a text message.

        • Outcome: The Court disagreed because the evidence showed that the defendant used the information to log into the victim's email, so he could change her Facebook account password (multiple times), and manipulate the web site as he wanted. Moreover, the court explained that the defendant's purpose of committing libel constitutes an “unlawful purpose” under Section 530.5(a). (942) The court explained that where defendant wrote “sexually explicit and vulgar comments on the victims' friends' walls, accessible by the victims' friends and acquaintances, and purportedly as her. [Defendant] clearly exposed the victim to hatred, contempt, ridicule and obloquy with his actions.” (947).4

    4. Practice Pointer(s)

      In 1997, the California Legislature added Section 530.5 to the California Penal Code and amended it in 1998 to expand the scope of, and the penalty for, the offense. The offense is known as a “wobbler,” which means that it can be punishable as either a misdemeanor or a felon. It was in 1998 that “any unlawful purpose” was added. The Senate Committee report stated that “[t]he purposes of this bill are to increase the penalty for identity theft; to expand the crime of identity theft to include use of personal information for any unlawful purpose; and to provide a mechanism in criminal court for an identity theft victim to clear his or her name.”5 Prior to the amendment, identity theft was only a misdemeanor crime, and “had to specifically involve the perpetrator's use of the victim's information 'to obtain or attempt to obtain credit, goods, or services.”6 However, the addition of the amendment has broadened the scope, and “unlawful purpose” has been construed to pertain to civil torts (like libel) as well as for violations of the criminal code.

    1. Cal. Penal Code § 528.5. 

    2. Cal. Penal Code § 530.5. 

    3. Rosa, 2013 WL 941728 at *10. 

    4. In re Rolando S., 197 Cal. App. 4th 936, 947 (Cal. Ct. App. 2011). 

    5. Id. at 944 (citing Sen. Bill No. 1374 (1997-1998 Reg. Sess.). 

    6. Id. at 944-45. 

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