101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
SB2538

 

Introduced 1/28/2020, by Sen. Michael E. Hastings

 

SYNOPSIS AS INTRODUCED:
 
New Act

    Creates the Civil Remedies for Nonconsensual Dissemination of Altered Sexual Images Act. Provides that a depicted individual has a cause of action against a person who: creates and intentionally discloses sexually explicit material and the person knows or reasonably should have known the depicted individual in the material did not consent to its creation or disclosure; or intentionally discloses sexually explicit material that the person did not create and the person knows the depicted individual in that material did not consent to the creation of the sexually explicit material. Provides exceptions. Provides that a disclaimer in the sexually explicit material that communicates that the inclusion of the depicted individual was unauthorized or the depicted individual did not participate in the creation or development of the material is not a defense. Provides remedies. Provides that an action shall be commenced no later than 3 years from the date the unauthorized creation, development, or disclosure was discovered or should have been discovered.


LRB101 15928 LNS 65288 b

 

 

A BILL FOR

 

SB2538LRB101 15928 LNS 65288 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 1. Short title. This Act may be cited as the Civil
5Remedies for Nonconsensual Dissemination of Altered Sexual
6Images Act.
 
7    Section 5. Definitions. As used in this Act:
8    "Altered depiction" means a performance that was actually
9performed by the depicted individual but was subsequently
10altered to be in violation of this Act.
11    "Authorized representative" means an attorney, talent
12agent, or personal manager authorized to represent a depicted
13individual if the depicted individual is represented.
14    "Consent" means an agreement written in plain language
15signed knowingly and voluntarily by the depicted individual
16that includes a general description of the sexually explicit
17material and the audiovisual work in which it will be
18incorporated.
19    "Depicted individual" means an individual who appears, as a
20result of digitization, to be giving a performance he or she
21did not actually perform in an altered depiction.
22    "Despicable conduct" means conduct that is so vile, base,
23or contemptible that it would be looked down on and despised by

 

 

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1a reasonable person.
2    "Digitization" means to realistically depict:
3        (1) the nude body parts of another human being as the
4    nude body parts of the depicted individual;
5        (2) computer-generated nude body parts as the nude body
6    parts of the depicted individual; or
7        (3) the depicted individual engaging in sexual conduct
8    in which the depicted individual did not engage.
9    "Disclose" means to publish, make available, or distribute
10to the public.
11    "Individual" means a natural person.
12    "Malice" means that the defendant acted with intent to
13cause harm to the plaintiff or engaged in despicable conduct
14that was done with a willful and knowing disregard of the
15rights of the plaintiff. A person acts with knowing disregard
16if the person is aware of the probable harmful consequences of
17his or her conduct and deliberately fails to avoid those
18consequences.
19    "Nude" means visible genitals, pubic area, anus, or a
20female's post-pubescent nipple or areola.
21    "Person" means a human being or legal entity.
22    "Plaintiff" includes cross-plaintiff.
23    "Sexual conduct" means:
24        (1) masturbation;
25        (2) sexual intercourse, including genital, oral, or
26    anal, whether between persons regardless of sex or gender

 

 

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1    or between humans and animals;
2        (3) sexual penetration of the vagina or rectum by, or
3    with, an object;
4        (4) the transfer of semen by means of sexual conduct
5    from the penis directly onto the depicted individual as a
6    result of ejaculation; or
7        (5) sadomasochistic abuse involving the depicted
8    individual.
9    "Sexually explicit material" means any portion of an
10audiovisual work that shows the depicted individual performing
11in the nude or appearing to engage in, or being subject to,
12sexual conduct.
 
13    Section 10. Cause of action.
14    (a) A depicted individual has a cause of action against a
15person who:
16        (1) creates and intentionally discloses sexually
17    explicit material and the person knows or reasonably should
18    have known the depicted individual in the material did not
19    consent to its creation or disclosure; or
20        (2) intentionally discloses sexually explicit material
21    that the person did not create and the person knows the
22    depicted individual in that material did not consent to the
23    creation of the sexually explicit material.
24    (b) A depicted individual may rescind consent previously
25given by delivering written notice within 3 business days from

 

 

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1the date consent was given to the person in whose favor consent
2was made, unless:
3        (1) the depicted individual is given at least 72 hours
4    to review the terms of the agreement before signing it; or
5        (2) the depicted individual's authorized
6    representative provides written approval of the signed
7    agreement.
 
8    Section 15. Exceptions. A person is not liable under this
9Act if:
10        (1) the person discloses the sexually explicit
11    material in the course of:
12            (i) reporting unlawful activity;
13            (ii) exercising the person's law enforcement
14        duties; or
15            (iii) a hearing, trial, or other legal proceeding;
16        or
17        (2) the material is:
18            (i) a matter of legitimate public concern;
19            (ii) a work of political or newsworthy value or
20        similar work; or
21            (iii) commentary, criticism, or a disclosure that
22        is otherwise protected by the Illinois Constitution or
23        the United States Constitution.
24    For purposes of this Section, sexually explicit material is
25not of newsworthy value solely because the depicted individual

 

 

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1is a public figure.
 
2    Section 20. Disclaimer not a defense. It is not a defense
3to an action under this Act that there is a disclaimer included
4in the sexually explicit material that communicates that the
5inclusion of the depicted individual in the sexually explicit
6material was unauthorized or that the depicted individual did
7not participate in the creation or development of the material.
 
8    Section 25. Remedies.
9    (a) A prevailing plaintiff who suffers harm as a result of
10a violation of this Act may recover:
11        (1) An amount equal to the monetary gain made by the
12    defendant from the creation, development, or disclosure of
13    the sexually explicit material.
14        (2) One of the following:
15            (i) economic and noneconomic damages proximately
16        caused by the disclosure of the sexually explicit
17        material, including damages for emotional distress; or
18            (ii) upon request of the plaintiff at any time
19        before the final judgment is rendered, an award of
20        statutory damages for all unauthorized acts involved
21        in the action, with respect to any one work, as
22        follows:
23                (A) a sum not less than $1,500 but not more
24            than $30,000; or

 

 

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1                (B) if the unlawful act was committed with
2            malice, up to a maximum of $150,000.
3        (3) Punitive damages.
4        (4) Reasonable attorney's fees and costs.
5        (5) Any other available relief, including, but not
6    limited to, injunctive relief.
7    (b) The remedies provided by this Section are cumulative
8and shall not be construed as restricting a remedy that is
9available under any other law.
 
10    Section 30. Limitations. An action under this Act shall be
11commenced no later than 3 years from the date the unauthorized
12creation, development, or disclosure was discovered or should
13have been discovered with the exercise of reasonable diligence.
 
14    Section 97. Severability. The provisions of this Act are
15severable under Section 1.31 of the Statute on Statutes.