Relating to criminal and civil liability related to sexually explicit media and artificial intimate visual material; creating a criminal offense; increasing a criminal penalty.

89(R) SB 441 - Enrolled version - Bill Text

S.B. No. 441

AN ACT

relating to criminal and civil liability related to sexually

explicit media and artificial intimate visual material; creating a

criminal offense; increasing a criminal penalty.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. The heading to Section 21.165, Penal Code, is

amended to read as follows:

Sec. 21.165. UNLAWFUL PRODUCTION OR DISTRIBUTION OF CERTAIN

SEXUALLY EXPLICIT
MEDIA
[
VIDEOS
].

SECTION 2. Section 21.165(a), Penal Code, is amended by

amending Subdivision (1) and adding Subdivision (3) to read as

follows:

(1) "Deep fake
media
[
video
]" means
a visual depiction

[
a video,
] created
or altered through
[
with
] the
use of software,

machine learning, artificial intelligence, or any other

computer-generated or technological means, including by adapting,

modifying, manipulating, or altering an authentic visual depiction

manually or through an automated process
[
intent to deceive
], that

appears
to a reasonable person
to depict a real person
,

indistinguishable from an authentic visual depiction of the real

person,
performing an action that did not occur in reality.

(3)

"Visual depiction" means a photograph, motion

picture film, videotape, digital image or video, or other visual

recording.

SECTION 3. Section 21.165, Penal Code, is amended by

amending Subsections (b) and (c) and adding Subsections (b-1),

(b-2), (c-1), (c-2), (c-3), (c-4), (c-5), and (e) to read as

follows:

(b) A person commits an offense if, without the effective

consent of the person appearing to be depicted, the person

knowingly produces or distributes by electronic means [
a
] deep fake

media
[
video
] that appears to depict the person
:

(1)

with visible computer-generated intimate parts or

with the visible intimate parts of another human being as the

intimate parts of the person; or

(2)

engaging in sexual conduct in which the person did

not engage
[
with the person's intimate parts exposed or engaged in

sexual conduct
].

(b-1)

A person commits an offense if the person

intentionally threatens to produce or distribute deep fake media

with the intent to coerce, extort, harass, or intimidate another

person.

(b-2)

Consent required by Subsection (b) is valid only if

the person appearing to be depicted knowingly and voluntarily

signed a written agreement that was drafted in plain language. The

agreement must include:

(1) a general description of the deep fake media; and

(2)

if applicable, the audiovisual work into which the

deep fake media will be incorporated.

(c) An offense under
Subsection (b)
[
this section
] is a

Class A misdemeanor
, except that the offense is a felony of the

third degree if it is shown on the trial of the offense that:

(1)

the actor has been previously convicted of an

offense under this section; or

(2)

the person appearing to be depicted is younger

than 18 years of age
.

(c-1)

An offense under Subsection (b-1) is a Class B

misdemeanor, except that the offense is a Class A misdemeanor if it

is shown on the trial of the offense that:

(1)

the actor has been previously convicted of an

offense under this section; or

(2)

the actor threatened to produce or distribute deep

fake media appearing to depict a person younger than 18 years of

age.

(c-2)

It is not a defense to prosecution under this section

that the deep fake media:

(1)

contains a disclaimer stating that the media was

unauthorized or that the person appearing to be depicted did not

participate in the creation or development of the deep fake media;

or

(2)

indicates, through a label or otherwise, that the

depiction is not authentic.

(c-3)

It is an affirmative defense to prosecution under this

section that the production or distribution of the deep fake media

occurs in the course of:

(1) lawful and common practices of law enforcement;

(2) reporting unlawful activity; or

(3)

a legal proceeding, if the production or

distribution is permitted or required by law.

(c-4)

It is an affirmative defense to prosecution under

Subsection (b) that the actor:

(1)

is an Internet service provider, cloud service

provider, cybersecurity service provider, communication service

provider, or telecommunications network that transmits data; and

(2)

acted solely in a technical, automatic, or

intermediate nature.

(c-5)

It is an affirmative defense to prosecution under

Subsection (b) that the actor:

(1)

is a provider or developer of a publicly

accessible artificial intelligence application or software that

was used in the creation of the deep fake media;

(2)

included a prohibition against the creation of

deep fake media prohibited by this section in the actor's terms and

conditions or user policies that are required to be acknowledged by

a user before the user is granted access to the artificial

intelligence application or software; and

(3)

took affirmative steps to prevent the creation of

deep fake media prohibited by this section through technological

tools, such as:

(A)

training the artificial intelligence

application or software to identify deep fake media prohibited by

this section;

(B)

providing effective reporting tools for deep

fake media prohibited by this section;

(C)

filtering deep fake media prohibited by this

section created by the artificial intelligence application or

software before the media is shown to a user; and

(D)

filtering deep fake media prohibited by this

section from the artificial intelligence application or

software

data set before the data set is used to train the

application or software.

(e)

The court shall order a defendant convicted of an

offense under this section to make restitution to the victim of the

offense for any psychological, financial, or reputational harm

incurred by the victim as a result of the offense.

SECTION 4. The heading to Chapter 98B, Civil Practice and

Remedies Code, is amended to read as follows:

CHAPTER 98B. UNLAWFUL
PRODUCTION, SOLICITATION,
DISCLOSURE
,
OR

PROMOTION OF INTIMATE VISUAL MATERIAL

SECTION 5. Section 98B.001, Civil Practice and Remedies

Code, is amended by amending Subdivision (1) and adding

Subdivisions (1-a), (1-b), (3), and (4) to read as follows:

(1)
"Artificial intimate visual material" means

computer-generated intimate visual material that was produced,

adapted, or modified using an artificial intelligence application

or other computer software in which the person is recognizable as an

actual person by a person's face, likeness, voice, or other

distinguishing characteristic, such as a unique birthmark or other

recognizable feature which, when viewed by a reasonable person, is

indistinguishable from the person depicted.

(1-a) "Consent" means affirmative, conscious, and

voluntary agreement, made by a person freely and without coercion,

fraud, or misrepresentation.

(1-b)
"Intimate parts," "promote," "sexual conduct,"

and "visual material" have the meanings assigned by Section 21.16,

Penal Code.

(3)

"Nudification application" means an artificial

intelligence application that is primarily designed and marketed

for the purpose of producing artificial intimate visual material.

(4)

"Social media platform" has the meaning assigned

by Section 120.001, Business & Commerce Code.

SECTION 6. Chapter 98B, Civil Practice and Remedies Code,

is amended by adding Sections 98B.0021, 98B.0022, 98B.008, and

98B.009 to read as follows:

Sec.

98B.0021.

LIABILITY FOR UNLAWFUL PRODUCTION,

SOLICITATION, DISCLOSURE, OR PROMOTION OF CERTAIN ARTIFICIAL

INTIMATE VISUAL MATERIAL.

A defendant is liable, as provided by

this chapter, to a person depicted in artificial intimate visual

material for damages arising from the production, solicitation,

disclosure, or promotion of the material if:

(1)

the defendant produces, solicits, discloses, or

promotes the artificial intimate visual material without the

effective consent of the depicted person and with the intent to harm

that person;

(2)

the production, solicitation, disclosure, or

promotion of the artificial intimate visual material causes harm to

the depicted person; and

(3)

the production, solicitation, disclosure, or

promotion of the artificial intimate visual material reveals the

identity of the depicted person in any manner, including through

any accompanying or subsequent information or material related to

the artificial intimate visual material.

Sec.

98B.0022.

LIABILITY OF OWNERS OF INTERNET WEBSITES AND

ARTIFICIAL INTELLIGENCE APPLICATIONS AND PAYMENT PROCESSORS. (a)

A person who owns an Internet website or application, including a

social media platform, and who recklessly facilitates the

production or disclosure of artificial intimate visual material in

exchange for payment, who owns a publicly accessible nudification

application from which the material is produced, or who recklessly

processes or facilitates payment for the production or disclosure

of the material through the website or application, is liable, as

provided by this chapter, to a person depicted in the material for

damages arising from the production or disclosure of the material

if the person knows or recklessly disregards that the depicted

person did not consent to the production or disclosure of the

material.

(b)

A person who owns an Internet website or application,

including a social media platform, on which artificial intimate

visual material is disclosed is liable, as provided by this

chapter, to the person depicted in the material for damages arising

from the disclosure of the material if the person depicted requests

the website or application to remove the material and the person who

owns the website or application fails to remove the material within

72 hours of receiving the request and make reasonable efforts to

identify and remove any known identical copies of such material.

(c)

A person who owns an Internet website or application,

including a social media platform, shall make available on the

website or application an easily accessible system that allows a

person to submit a request for the removal of artificial intimate

visual material.

(d)

A person who owns an Internet website or application,

including a social media platform, shall make available on the

website or application a clear and conspicuous notice, which may be

provided through a clear and conspicuous link to another web page or

disclosure, of the removal process established under Subsection

(c), that:

(1)

is written in plain language that is easy to read;

and

(2)

provides information regarding the

responsibilities of the person who owns the website or application

under this section, including a description of how a person can

submit a request for the removal of artificial intimate visual

material.

(e)

A violation of Subsection (b), (c), or (d) is a

deceptive trade practice actionable under Subchapter E, Chapter 17,

Business & Commerce Code.

(f)

The attorney general may investigate and bring an action

for injunctive relief against a person who repeatedly violates

Subsection (b), (c), or (d).

If the attorney general prevails in

the action, the attorney general may recover costs and attorney's

fees.

Sec.

98B.008.

CONFIDENTIAL IDENTITY IN CERTAIN

ACTIONS.

(a)

In this section, "confidential identity" means:

(1) the use of a pseudonym; and

(2)

the absence of any other identifying information,

including address, telephone number, and social security number.

(b)

Except as otherwise provided by this section, in a suit

brought under this chapter, the court shall:

(1)

make it known to the claimant as early as possible

in the proceedings of the suit that the claimant may use a

confidential identity in relation to the suit;

(2)

allow a claimant to use a confidential identity in

all petitions, filings, and other documents presented to the court;

(3)

use the confidential identity in all of the court's

proceedings and records relating to the suit, including any

appellate proceedings; and

(4)

maintain the records relating to the suit in a

manner that protects the confidentiality of the claimant.

(c)

In a suit brought under this chapter, only the following

persons are entitled to know the true identifying information about

the claimant:

(1) the judge;

(2) a party to the suit;

(3) the attorney representing a party to the suit; and

(4)

a person authorized by a written order of a court

specific to that person.

(d)

The court shall order that a person entitled to know the

true identifying information under Subsection (c) may not divulge

that information to anyone without a written order of the court. A

court shall hold a person who violates the order in contempt.

(e)

Notwithstanding Section 22.004, Government Code, the

supreme court may not amend or adopt rules in conflict with this

section.

(f)

A claimant is not required to use a confidential

identity as provided by this section.

Sec.

98B.009.

STATUTE OF LIMITATIONS. A person must bring

suit under this chapter not later than 10 years after the later of

the date on which:

(1)

the person depicted in the intimate visual

material that is the basis for the suit reasonably discovers the

intimate visual material; or

(2)

the person depicted in the intimate visual

material that is the basis for the suit turns 18 years of age.

SECTION 7. Chapter 98B, Civil Practice and Remedies Code,

as amended by this Act, applies only to a cause of action that

accrues on or after the effective date of this Act.

SECTION 8. Section 21.165, Penal Code, as amended by this

Act, applies only to an offense committed on or after the effective

date of this Act. An offense committed before the effective date of

this Act is governed by the law in effect on the date the offense was

committed, and the former law is continued in effect for that

purpose. For purposes of this section, an offense was committed

before the effective date of this Act if any element of the offense

occurred before that date.

SECTION 9. This Act takes effect September 1, 2025.

______________________________

______________________________

President of the Senate

Speaker of the House

I hereby certify that S.B. No. 441 passed the Senate on

March 18, 2025, by the following vote: Yeas 30, Nays 0;

May 28, 2025, Senate refused to concur in House amendments and

requested appointment of Conference Committee; May 30, 2025, House

granted request of the Senate; May 31, 2025, Senate adopted

Conference Committee Report by the following vote: Yeas 31,

Nays 0.

______________________________

Secretary of the Senate

I hereby certify that S.B. No. 441 passed the House, with

amendments, on May 27, 2025, by the following vote: Yeas 104,

Nays 36, one present not voting; May 30, 2025, House granted

request of the Senate for appointment of Conference Committee;

May 31, 2025, House adopted Conference Committee Report by the

following vote: Yeas 90, Nays 33, two present not voting.

______________________________

Chief Clerk of the House

Approved:

______________________________

Date

______________________________

Governor