INTRODUCTION

I grew up in a different time. When I was 18 we didn't have computers (for the most part) or online dating sites such as eHarmony, Bumble, Match, Dating.com, and the whole slew of other niche dating sites. I also didn't grow up learning to send pictures of my genitals to try to get a date, or a "hookup," as it is called nowadays. Yet, we are seeing more and more people sending non-consensual pictures of their genitals (also called "cyber-flashing") to other people, either to try to get a date or to see if they are just looking for a good time, etc. This has become quite an annoyance to some people who are just looking for friends on dating sites and not to view a picture of an unwanted sexual nature. California is one of the states that recognize the harm these images can cause, and there is a mechanism to seek monetary damages from the perpetrator as discussed herein. This blog discusses the Flash Act in California. Check to see if your state has a similar law. This is general legal information only and not legal advice.

WHAT IS THE CALIFORNIA FLASH ACT?

The Flash Act can be found at California Civil Code Section §1708.88.

The law was enacted in January 2023 and allows victims of "cyber flashing" (receiving unsolicited obscene images or videos) to file a civil lawsuit against the sender if the sender is over 18 years old. The Flash Act provides a private right of civil action for victims and allows them to recover economic and non-economic damages, statutory damages ranging from $1,500 to $30,000, punitive damages, and attorney's fees and costs. Here is a text of the law:

__________________________________

(a) A private cause of action lies against a person 18 years of age or older who knowingly sends an image that the person knows or reasonably should know is unsolicited, by electronic means, depicting obscene material.

(b) For purposes of this section, the following terms have the following meanings:

(1) An “image” includes, but is not limited to, a moving visual image.

(2) “Obscene material” means material, including, but not limited to, images depicting a person engaging in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or masturbation, or depicting the exposed genitals or anus of any person, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value.

ATTORNEY STEVE® NOTE: What is "appeal to the prurient interest"? The United States Supreme Court has long defined obscenity as material that, taken as a whole, appeals to the prurient interest, is patently offensive, and lacks serious literary, artistic, political, or scientific value (Miller v. California, 413 U.S. 15, 24 (1973)).

In Roth v. United States, 354 U.S. 476, 487 (1957), the Court defined “prurient interest” as a “shameful or morbid interest in nudity, sex, or excretion.”

In Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985), the Court clarified that prurient interest means lustful, morbid, or shameful sexual thoughts, not normal or healthy ones. Your unsolicited transmission of an image of your genitalia: Appeals to the prurient interest (a morbid and lascivious sexual interest), Is patently offensive in its content and manner of delivery, and Lacks any serious literary, artistic, political, or scientific value. Accordingly, it falls squarely within the legal definition of obscene conduct.

Check for cases in your jurisdiction.

(3) An image is “unsolicited” if the recipient has not consented to or has expressly forbidden the receipt of the image.

WHAT ARE THE DAMAGES AND PENALTIES FOR A VIOLATION OF CALIFORNIA'S FLASH ACT?

(c)(1) A prevailing plaintiff who suffers harm as a result of receiving an image in violation of subdivision (a) may recover economic and noneconomic damages proximately caused by the receipt of the image, including damages for emotional distress.

(2) A prevailing plaintiff who suffers harm as a result of receiving an image, the receipt of which had been expressly forbidden by the plaintiff, in violation of subdivision (a), may recover the following:

(A) Economic and noneconomic damages proximately caused by the receipt of the image, including damages for emotional distress.

(B) Upon request of the plaintiff at any time before the final judgment is rendered, the plaintiff may, in lieu of those damages specified in subparagraph (A), recover an award of statutory damages of a sum of not less than one thousand five hundred dollars ($1,500) but not more than thirty thousand dollars ($30,000).

(C) Punitive damages.

(3) A prevailing plaintiff described in paragraph (1) or (2) may recover punitive damages under California Civil Code section 3294 and the following:

(A) Reasonable attorney's fees and costs.

(B) Any other available relief, including injunctive relief.

(4) The remedies provided by this section are cumulative and shall not be construed as restricting a remedy that is available under any other law.

ATTORNEY STEVE® NOTE: In these types of cyberflash dating nude pics, you may also have a case for intentional infliction of emotional distress ("IIED"). Here is a case you can review for the definition of what "extreme and outrageous conduct" is.

To establish a claim for IIED, a plaintiff must prove:

(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress;

(2) the plaintiff's suffering severe or extreme emotional distress;

and

(3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. . . .' Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community." [Citation.] The defendant must have engaged in "conduct intended to inflict injury or engaged in with the realization that injury will result."'" (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001 (Potter); accord, Hughes v. Pair (2009) 46 Cal.4th 1035, 1050 (Hughes).

"With respect to the requirement that a plaintiff show severe emotional distress, [the Supreme Court] has set a high bar.

'Severe emotional distress means "'emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it. (Hughes, at p. 1051.) "'It is for the court to determine whether on the evidence severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed.'" (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.)

These are not always easy cases to win, but if the facts are there, its a good tort theory of recovery to look at.

(d) This section does not apply to any of the following:

(1) An internet service provider, mobile data provider, or operator of an online or mobile application, to the extent that the entity is transmitting, routing, or providing connections for electronic communications initiated by or at the direction of another person.

(2) Any service that transmits images or audiovisual works, including, without limitation, an on-demand, subscription, or advertising-supported service.

(3) A health care provider transmitting an image for a legitimate medical purpose.

(4) An individual who has not expressly opted out of receiving sexually explicit images on the service in which the image is transmitted, where such an option is available.

ATTORNEY STEVE® NOTE: Did the online website at issue have any way to opt out of receiving these types of messages? If so, and if the Plaintiff did not opt out, that could create a defense to the Flash Act claim.

HOW DOES THIS COMPARE TO CALIFORNIA'S REVENGE PORN LAW?

California's revenge porn law prohibits posting sexual or nude images in an act of revenge. Read more about this here. If it applies, this could be another claim to add to a cyberflashing lawsuit.