SAG-AFTRA Backs Legislation to Require Consent for Digital Sex Scenes and Nudity

California state Sen. Connie Leyva worked with SAG-AFTRA to introduce SB 564, legislation to ban the creation and dissemination of nonconsensual digitally created sex scenes and nude performances.

This legislation touches on two key union priorities: enhancing performers’ protections when they are involved in sex scenes and their rights to their digital performances. In addition, this legislation will give all Californians the right to sue those create “deepfake” pornography or fake sex tapes.

Now is the time to establish lasting protections in this industry against sexual abuse. Unfortunately, mainstream filmmakers have already used body doubles and/or technology to depict performers in the nude or engaging in simulated sex acts without their consent. SAG-AFTRA is not going to allow free software to exacerbate this problem. Content creators need to respect union rules, irrespective of whatever new technology is available to them. If a filmmaker wants a performer to act in a sex scene, they need to hire them under a union contract and obtain meaningful consent.

What is the scope of the legislation?
This legislation covers the use of technology to create motion pictures that depict an individual in a realistic sex act or in the nude. Digitization includes depicting the nude body parts of another human being as those of the individual or imposing nude body parts onto the individual.

Does the legislation distinguish between a public and private figure?
No. Unlike defamation law, where a public figure receives less protection, this legislation does not distinguish between a public and private figure. Furthermore, an individual has the option to file anonymously to maintain privacy and prevent unwanted media attention.

Are there exemptions in the legislation?
Yes. A content creator is not liable if they can prove:

1. The content was created in the course of reporting unlawful activity, a legal proceeding, or a law enforcement officer discloses it in the course of their official duties; or
2. The content was in relation to a matter of legitimate public concern; or
3. The content was in a work of political or newsworthy value; or
4. The content was made for purposes of commentary or criticism or is otherwise protected by the California Constitution or the United States Constitution.

These exemptions reflect the free speech rights provided to creators under the First Amendment. However, the First Amendment is not absolute and the law has long respected other competing interests. 

What damages or other remedies may a judge award a victim?

1. Lost wages, reputational harm, and emotional harm damages.
2. The profits garnered or the plaintiff may elect to receive statutory damages, which a judge may set at upwards of $500,000.
3. Punitive damages.
4. Reasonable attorney’s fees and costs.
5. Injunctive relief. 

Are internet platforms obligated to take down content in violation of this law?
No. Unfortunately, internet platforms and search engines are under no legal obligation to remove infringing content on their sites. This is because Section 230 of the Communications Decency Act preempts state laws and immunizes platforms from the acts of its users.

Google, Reddit and Twitter have all adopted voluntary policies against nonconsensual nude performances and provide mechanisms for victims to take down content or search results. On other platforms, victims may want to submit a takedown request in case the platform will oblige.

Does this also apply to performers hired under a union contract?
Yes. A performer working under a union contract will be able to sue in open court under this law, for example, if a producer uses technology to sexualize a scene the performer acted in. A performer working under a union contract will also have access to collectively bargained rights, if they so choose. 

What constitutes consent under this law?
To satisfy the consent requirement, a filmmaker must have a performer sign an agreement written in plain language. Consent must be given knowingly and voluntarily (no coercion or hidden boilerplate language). The agreement must also include a description of the depiction and identify the audiovisual work in which the depiction will be incorporated.

Does a producer need to get consent for both nudity and simulated sex acts?
Yes. Producers are required, under union contracts and this legislation, to obtain written consent (a rider) for both nude performances and the performance of a simulated sex act.  

What happens if a performer is pressured to sign a rushed rider on set?
Unfortunately, there is a bad practice in this industry of producers asking performers to sign riders on set, away from their attorney, agent or manager. Professional representatives are then desperate to claw back a bad rider. This legislation provides an emergency revocation provision by which performers or their authorized representatives can provide written notice of revocation within three business days after signing a bad rider. This revocation is only available in situations where the performer received less than 72 hours to review the agreement or the authorized representative did not provide written approval of the rider. This revocation option is only applicable to the digital rights provided in this legislation.

What happens if a performer does not have an attorney, agent or manager?
If a performer does not have a professional representative, the producer can obtain last-minute approval from SAG-AFTRA. This avenue is only available if the individual does not have a professional representative. A producer cannot forum shop to get around an attorney, agent or manager.

How can I show my support for this legislation?
Keep a look out for calls to action and share your support on social media with the hashtags #SB564 #ProtectMyImage #WorkWithIntegrity.