MISSISSIPPI LEGISLATURE
2019 Regular Session
To: Judiciary, Division A
By: Senator(s) Doty, Jackson (11th)
AN ACT TO PROHIBIT UNLAWFUL DISCLOSURE OR PROMOTION OF INTIMATE VISUAL MATERIAL; TO CREATE NEW SECTION 95-17-1, MISSISSIPPI CODE OF 1972, TO PROVIDE DEFINITIONS; TO CREATE NEW SECTION 95-17-3, MISSISSIPPI CODE OF 1972, TO PROVIDE LIABILITY FOR UNLAWFUL DISCLOSURE OR PROMOTION OF CERTAIN VISUAL MATERIAL; TO CREATE NEW SECTION 95-17-5, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR DAMAGES; TO CREATE NEW SECTION 95-17-7, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR INJUNCTIVE RELIEF; TO CREATE NEW SECTION 95-17-9, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT A CAUSE OF ACTION UNDER THIS ACT IS CUMULATIVE; TO CREATE NEW SECTION 95-17-11, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR JURISDICTION; TO CREATE NEW SECTION 95-17-13, MISSISSIPPI CODE OF 1972, TO PROVIDE EXCEPTIONS; TO CREATE NEW SECTION 97-29-67, MISSISSIPPI CODE OF 1972, TO CREATE THE CRIME OF UNLAWFUL DISCLOSURE OR PROMOTION OF INTIMATE VISUAL MATERIAL, AND TO ENACT DEFINITIONS AND PENALTIES; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 95-17-1, Mississippi Code of 1972:
95-17-1. In this chapter:
(a) "Intimate parts," "promote," "sexual conduct," and "visual material" have the meanings given in Section 97-29-67.
(b) "Intimate visual material" means visual material that depicts a person:
(i) With the person's intimate parts exposed; or
(ii) Engaged in sexual conduct.
SECTION 2. The following shall be codified as Section 95-17-3, Mississippi Code of 1972:
95-17-3. (1) A defendant is liable to a person depicted in intimate visual material for damages arising from the disclosure of the material if:
(a) The defendant discloses the intimate visual material without the effective consent of the depicted person;
(b) The intimate visual material was obtained by the defendant or created under circumstances in which the depicted person had a reasonable expectation that the material would remain private;
(c) The disclosure of the intimate visual material causes harm to the depicted person; and
(d) The disclosure of the intimate visual material reveals the identity of the depicted person in any manner, including through:
(i) Any accompanying or subsequent information or material related to the intimate visual material; or
(ii) Information or material provided by a third party in response to the disclosure of the intimate visual material.
(2) A defendant is liable to a person depicted in intimate visual material for damages arising from the promotion of the material if, knowing the character and content of the material, the defendant promotes intimate visual material described by subsection (1) of this section on an Internet website or other forum for publication that is owned or operated by the defendant.
SECTION 3. The following shall be codified as Section 95-17-5, Mississippi Code of 1972:
95-17-5. (1) A claimant who prevails in a suit under this chapter shall be awarded:
(a) Actual damages, including damages for mental anguish;
(b) Court costs; and
(c) Reasonable attorney's fees.
(2) In addition to an award under subsection (1) of this section, a claimant who prevails in a suit under this chapter may recover exemplary damages.
SECTION 4. The following shall be codified as Section 95-17-7, Mississippi Code of 1972:
95-17-7. (1) A court in which a suit is brought under this chapter, on the motion of a party, may issue a temporary restraining order or a temporary or permanent injunction to restrain and prevent the disclosure or promotion of intimate visual material with respect to the person depicted in the material.
(2) A court that issues a temporary restraining order or a temporary or permanent injunction under subsection (1) of this section may award to the party who brought the motion damages in the amount of:
(a) One Thousand Dollars ($1,000.00) for each violation of the court's order or injunction, if the disclosure or promotion of intimate visual material is willful or intentional; or
(b) Five Hundred Dollars ($500.00) for each violation of the court's order or injunction, if the disclosure or promotion of intimate visual material is not willful or intentional.
SECTION 5. The following shall be codified as Section 95-17-9, Mississippi Code of 1972:
95-17-9. The cause of action created by this chapter is cumulative and in addition to any other remedy available at common law or by statute.
SECTION 6. The following shall be codified as Section 95-17-11, Mississippi Code of 1972:
95-17-11. A court has personal jurisdiction over a defendant in a suit brought under this chapter if:
(a) The defendant resides in this state;
(b) The claimant who is depicted in the intimate visual material resides in this state;
(c) The intimate visual material is stored on a server that is located in this state; or
(d) The intimate visual material is available for view in this state.
SECTION 7. The following shall be codified as Section 95-17-13, Mississippi Code of 1972:
95-17-13. (1) This chapter shall be liberally construed and applied to promote its underlying purpose to protect persons from, and provide adequate remedies to victims of, the disclosure or promotion of intimate visual material.
(2) This chapter does not apply to a claim brought against an interactive computer service, as defined by 47 USC Section 230, for a disclosure or promotion consisting of intimate visual material provided by another person.
SECTION 8. The following shall be codified as Section 97-29-67, Mississippi Code of 1972:
97-29-67. (1) In this section:
(a) "Intimate parts" means the female nipple or areola or the male or female naked genitals, pubic area, anus or buttocks.
(b) "Promote" means to do, or offer or agree to do, any of the following: procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit or advertise.
(c) "Sexual conduct" means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation or sadomasochistic abuse.
(d) "Simulated" means the explicit depiction of sexual conduct that creates the appearance of actual sexual conduct and during which a person engaging in the conduct exhibits any uncovered portion of the intimate parts.
(e) "Visual material" means:
(i) Any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative or slide; or
(ii) Any physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission or other method.
(2) A person commits an offense if:
(a) Without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct;
(b) The visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;
(c) The disclosure of the visual material causes harm to the depicted person; and
(d) The disclosure of the visual material reveals the identity of the depicted person in any manner, including through:
(i) Any accompanying or subsequent information or material related to the visual material; or
(ii) Information or material provided by a third party in response to the disclosure of the visual material.
(3) A person commits an offense if the person intentionally threatens to disclose, without the consent of the depicted person, visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct and the person makes the threat to obtain a benefit:
(a) In return for not making the disclosure; or
(b) In connection with the threatened disclosure.
(4) A person commits an offense if, knowing the character and content of the visual material, the person promotes visual material described by subsection (2) of this section on an Internet website or other forum for publication that is owned or operated by the person.
(5) It is not a defense to prosecution under this section that the depicted person:
(a) Created or consented to the creation of the visual material; or
(b) Voluntarily transmitted the visual material to the defendant.
(6) It is an affirmative defense to prosecution under subsection (1) or (2) of this section that:
(a) The disclosure or promotion is made in the course of:
(i) Lawful and common practices of law enforcement or medical treatment;
(ii) Reporting unlawful activity; or
(iii) A legal proceeding, if the disclosure or promotion is permitted or required by law;
(b) The disclosure or promotion consists of visual material depicting in a public or commercial setting only a person's voluntary exposure of:
(i) The person's intimate parts; or
(ii) The person engaging in sexual conduct; or
(iii) The actor is an interactive computer service, as defined by 47 USC Section 230, and the disclosure or promotion consists of visual material provided by another person.
(7) A person found guilty of a violation of this section shall be punished by a fine not to exceed Four Thousand Dollars ($4,000.00), confinement in jail for a term not to exceed one (1) year, or both.
(8) If conduct that constitutes an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section, the other law, or both.
SECTION 9. This act shall take effect and be in force from and after July 1, 2019.