The Texas offense of Unlawful Disclosure or Promotion of Intimate Visual Material is a controversial new “Revenge Porn” law that restricts what you can do with photographs and videos depicting nudity or sexual conduct. If the photograph is covered under the law, then this law says it can’t be posted on the internet or sent anywhere else without the depicted person’s consent if the individual would be harmed and also could be identified. The law also prohibits using the release of types of photos in a threatening manner.
UNLAWFUL DISCLOSURE OR PROMOTION OF INTIMATE VISUAL MATERIAL ATTORNEY FAQs
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This law applies to photographs and videos that depict “another person with the person’s intimate parts exposed or engaged in sexual conduct.” Passed as part of Senate Bill 1135 during the 85th Legislative Session in the Relationship Privacy Act (the “RPA”), the Texas state legislature created both criminal and civil liabilities for people who disclose so-called “Revenge Porn.” The law in the Penal Code also describes three affirmative defenses and describes two circumstances that may not be used as a defense.
The law has been criticized as being unconstitutional in that it is a content-based restriction on free speech without an allowed exception, and I suspect that there will certainly be some cases where the government’s lawyers will abuse this law and its constitutionality will eventually be addressed in court.
What is the current Texas law about Unlawful Disclosure or Promotion of Intimate Visual Material?
The offense is described in Section 21.16 of the Texas Penal Code. The statute describes three different ways to violate the law. The first way to violate this law is found in Subsection (b). This subsection was amended in the 86th Texas Legislature by adding an “intent to harm” element as well as a “knowledge” element and took effect in September 2019. These changes are indicated below with the added language in brackets and the removed language with strikethrough:
A person commits an offense if:
(1) without the effective consent of the depicted person [and with the intent to harm that person], the person
intentionallydiscloses visual material depicting another person with the person’s intimate parts exposed or engaged in sexual conduct;
(2) [at the time of the disclosure, the person knows or has reason to believe that] 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;
(3) the disclosure of the visual material causes harm to the depicted person; and
(4) the disclosure of the visual material reveals the identity of the depicted person in any manner, including through:
(A) any accompanying or subsequent information or material related to the visual material; or
(B) information or material provided by a third party in response to the disclosure of the visual material.
In order to obtain a conviction under this subsection, the state’s attorneys must prove five main elements: (1) the visual material depicts another person with the person’s intimate parts exposed or engaged in sexual conduct, (2) the accused person intentionally disclosed the visual material [in the 2019 version, disclosure must be made with an intent to harm], (3) the the disclosure was without the effective consent of the other person, (4) the depicted person had a reasonable expectation of privacy [in the 2019 version, the accused must also know or should have known about such an expectation], (5) the disclosure causes harm and (6) the disclosure reveals the identity of the depicted person.
This subsection addresses the most typical revenge porn scenario where a former lover publishes an intimate picture of his or her “ex” on the Internet.
There are some interesting things to consider about this definition. First, the use of the word “causes” implies that there must be some ongoing harm. Second, what does the reasonableness of an expectation of privacy cover? It would obviously cover unauthorized photos of someone in a restroom, but whether anyone would have a reasonable expectation of privacy for photos that they agreed to have taken seems outlandish. Having someone else take a picture would require you to have given up your expectation of privacy to at least one other person. The use of the word “effective” in “effective consent” means that consent does not have to be expressly authorized, which would leave a lot of leeway in interpretation.
Subsection (c) of Section 21.16 describes the second way to violate the law:
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 actor makes the threat to obtain a benefit:
(1) in return for not making the disclosure; or
(2) in connection with the threatened disclosure.
This subsection makes it illegal to use the sensitive visual material in a threatening way. The law, however, does not apply to every kind of threat. It only applies to threats made to obtain a benefit, and then further limited to only threats made to obtain a benefit in exchange for not disclosing the material or threats made to obtain a benefit in connection with the threatened behavior.
Subsection (d) of Section 21.16 describes the third way to violate the law:
A person commits an offense if, knowing the character and content of the visual material, the person promotes visual material described by Subsection (b) on an Internet website or other forum for publication that is owned or operated by the person.
This subsection specifically addresses the Internet, although it applies to other forums for publication as well. The key difference between this subsection of the law and the others is the use of the word “promote.” Promote is defined under the law as “to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do any of the above.” This is a very broad definition, and it covers a lot more kinds of actions than what is covered under Subsection (b). Subsection (b) only covers the “disclosure” of visual materials.
One gray area in the law is what the legislature intended by “visual material described by Subsection (b).” It is unclear whether the legislature meant “visual material depicting another person with the person’s intimate parts exposed or engaged in sexual conduct” or the visual material that also meets the criteria of the rest of subsection (a), including (a)(1),(2),(3) and (4).
What are the affirmative defenses to the law?
There are three affirmative defenses to prosecution under this law. However, none of them apply to a prosecution under subsection (c), the use of the visual material as part of a threat. The first affirmative defense would allow you to avoid a conviction if you show that the disclosure of the intimate material was made as part of a law enforcement investigation, medical treatment, legal proceeding or reporting an unlawful activity.
The second affirmative defense requires you to show that the the visual material was made in a “public or commercial setting” and was voluntary, and it is further limited to visual material only of the person’s “intimate parts” or the person engaging in sexual conduct. So if you take a photograph of a woman “flashing” someone at a concert, for instance, this would be covered under this second affirmative defense.
The third affirmative defense covers the unusual situation where the actor that discloses the photos is an “interactive computer service, as defined by 47 U.S.C. Section 230.”
What visual material is covered?
Visual material includes “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” and “any disk, diskette, or other 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.”
What is the penalty for a conviction?
A conviction for Unlawful Disclosure or Promotion of Intimate Visual Material is punished as a Class A misdemeanor, with a maximum possible fine under state law of up to $4,000 and jail time of up to one year.
What if the person consented to the creation of the photos or sent them to me?
The law states that you cannot use the fact that the depicted person sent the photos to you as a defense. It also states that you cannot use the fact that depicted person consented to the taking of the photos or videos or that he or she took them himself or herself.
^1. Texas Penal Code Section 21.16(b)^2. House Bill 98, 86th Texas Legislature Sections 2, 3(b) and 4^3. Texas Penal Code Section 21.16(2)^4. Texas Penal Code Section 21.16(f)^5. Texas Penal Code Section 21.16(f)(1)^6. Texas Penal Code Section 21.16(f)(2)^7. Texas Penal Code Section 21.16(f)(3)^8. 47 U.S. Code § 230(f)(2) –
The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
^9. Texas Penal Code Section 21.16(5)^10. Texas Penal Code Section 21.16(g)^11. Texas Penal Code Section 21.16(e)(2)^12 Texas Penal Code Section 21.16(e)(1) See also the Committee Report of SB 1135