Florida Senate - 2015                       CS for CS for SB 538
       By the Committees on Rules; and Criminal Justice; and Senator
       595-03793-15                                           2015538c2
    1                        A bill to be entitled                      
    2         An act relating to the disclosure of sexually explicit
    3         images; creating s. 847.0136, F.S.; providing
    4         definitions; prohibiting an individual from
    5         electronically disclosing a sexually explicit image of
    6         an identifiable person with the intent to harass such
    7         person if the individual knows or should have known
    8         that such person did not consent to the disclosure;
    9         providing criminal penalties; providing for
   10         jurisdiction; providing exceptions; providing civil
   11         remedies; exempting providers of specified services;
   12         amending s. 921.244, F.S.; requiring a court to order
   13         that a person convicted of such offense be prohibited
   14         from having contact with the victim; providing
   15         criminal penalties for a violation of such order;
   16         providing that criminal penalties for certain offenses
   17         run consecutively with a sentence imposed for a
   18         violation of s. 847.0136, F.S.; reenacting s.
   19         784.048(7), F.S., to incorporate the amendment made to
   20         s. 921.244, F.S., in a reference thereto; providing an
   21         effective date.
   23  Be It Enacted by the Legislature of the State of Florida:
   25         Section 1. Section 847.0136, Florida Statutes, is created
   26  to read:
   27         847.0136 Prohibited electronic disclosure of sexually
   28  explicit images; penalties; jurisdiction.—
   29         (1) As used in this section, the term:
   30         (a) “Disclose” means to publish, post, distribute, exhibit,
   31  advertise, offer, or transfer, or cause to be published, posted,
   32  distributed, exhibited, advertised, offered, or transferred.
   33         (b) “Harass” means to engage in conduct directed at a
   34  specific person which causes substantial emotional distress to
   35  that person and serves no legitimate purpose.
   36         (c) “Identifiable person” means an individual in a sexually
   37  explicit image who can be identified through:
   38         1. Recognition of his or her face as depicted in the
   39  sexually explicit image; or
   40         2. Personal identification information that accompanies or
   41  is associated with the sexually explicit image.
   42         (d) “Personal identification information” has the same
   43  meaning as provided in s. 817.568.
   44         (e) “Sexually explicit image” means a private photograph,
   45  film, videotape, recording, or other reproduction of:
   46         1. Nudity; or
   47         2. Sexual intercourse, including, but not limited to, oral
   48  sexual intercourse or anal sexual intercourse.
   49         (2) An individual may not intentionally and knowingly
   50  disclose a sexually explicit image of an identifiable person or
   51  that contains descriptive information in a form that conveys the
   52  personal identification information of the person to a social
   53  networking service or a website, or by means of any other
   54  electronic medium, with the intent to harass such person, if the
   55  individual knows or should have known that the person depicted
   56  in the sexually explicit image did not consent to such
   57  disclosure.
   58         (3)(a) Except as provided in paragraph (b), an individual
   59  who violates this section commits a misdemeanor of the first
   60  degree, punishable as provided in s. 775.082 or s. 775.083.
   61         (b) An individual who commits a second or subsequent
   62  violation under this section commits a felony of the third
   63  degree punishable as provided in s. 775.082, s.775.083, or
   64  s.775.084.
   65         (4) A violation of this section is committed within this
   66  state if any conduct that is an element of the offense described
   67  in subsection (2), or any harm to the identifiable person
   68  resulting from the offense described in subsection (2), occurs
   69  within this state.
   70         (5) This section does not apply to the disclosure of a
   71  sexually explicit image for:
   72         (a) The reporting, investigation, and prosecution of an
   73  alleged crime for law enforcement purposes.
   74         (b) Voluntary and consensual purposes that, from all facts
   75  and circumstances, were not intended to be nor remain
   76  confidential, including in public or commercial settings.
   77         (6) An aggrieved person may initiate a civil action against
   78  a person who violates this section to obtain all appropriate
   79  relief in order to prevent or remedy a violation of this
   80  section, including:
   81         (a) Injunctive relief.
   82         (b) Monetary damages to include $5,000 or actual damages
   83  incurred as a result of a violation of this section, whichever
   84  is greater.
   85         (c) Reasonable attorney fees and costs.
   86         (7) This section does not impose liability on a provider of
   87  an interactive computer service as defined in 47 U.S.C. s.
   88  230(f), an information service as defined in 47 U.S.C. s. 153,
   89  or communications services as defined in s. 202.11, for:
   90         (a) The transmission, storage, or caching of electronic
   91  communications or messages of other persons;
   92         (b) Other related telecommunications or commercial mobile
   93  radio service; or
   94         (c) Content provided by another person.
   95         Section 2. Section 921.244, Florida Statutes, is amended to
   96  read:
   97         921.244 Order of no contact; penalties.—
   98         (1) At the time of sentencing an offender convicted of a
   99  violation of s. 794.011, s. 800.04, s. 847.0135(5), s. 847.0136,
  100  or any offense in s. 775.084(1)(b)1.a.-o., the court shall order
  101  that the offender be prohibited from having any contact with the
  102  victim, directly or indirectly, including through a third
  103  person, for the duration of the sentence imposed. The court may
  104  reconsider the order upon the request of the victim if the
  105  request is made at any time after the victim has attained 18
  106  years of age. In considering the request, the court shall
  107  conduct an evidentiary hearing to determine whether a change of
  108  circumstances has occurred which warrants a change in the court
  109  order prohibiting contact and whether it is in the best interest
  110  of the victim that the court order be modified or rescinded.
  111         (2) An Any offender who violates a court order issued under
  112  this section commits a felony of the third degree, punishable as
  113  provided in s. 775.082, s. 775.083, or s. 775.084.
  114         (3) The punishment imposed under this section shall run
  115  consecutive to any former sentence imposed for a conviction for
  116  any offense under s. 794.011, s. 800.04, s. 847.0135(5), s.
  117  847.0136, or any offense in s. 775.084(1)(b)1.a.-o.
  118         Section 3. For the purpose of incorporating the amendment
  119  made by this act to section 921.244, Florida Statutes, in a
  120  reference thereto, subsection (7) of section 784.048, Florida
  121  Statutes, is reenacted to read:
  122         784.048 Stalking; definitions; penalties.—
  123         (7) A person who, after having been sentenced for a
  124  violation of s. 794.011, s. 800.04, or s. 847.0135(5) and
  125  prohibited from contacting the victim of the offense under s.
  126  921.244, willfully, maliciously, and repeatedly follows,
  127  harasses, or cyberstalks the victim commits the offense of
  128  aggravated stalking, a felony of the third degree, punishable as
  129  provided in s. 775.082, s. 775.083, or s. 775.084.
  130         Section 4. This act shall take effect October 1, 2015.