§ 98B.002.Liability for Unlawful Disclosure or Promotion of Certain Intimate Visual Material

The original cause of action, and it has four elements that must all be met.

A defendant is liable for damages arising from disclosure if:

(1) the defendant discloses the material without the effective consent of the depicted person and with the intent to harm that person; (2) at the time, the defendant knows or has reason to believe the material was obtained or created under circumstances in which the depicted person had a reasonable expectation that it would remain private; (3) the disclosure causes harm; and (4) the disclosure reveals the identity of the depicted person.

Intent to harm is the demanding element. Disclosure without consent is not enough — the defendant must have intended to injure the person depicted.

The identity element is drawn broadly and this matters. Identity may be revealed in any manner, including through accompanying or subsequent information or material, or information provided by a third party in response to the disclosure.

So a person who posts material without a name, where commenters then identify the subject, has revealed the identity within the section.

Subsection (b) reaches the site operator. A defendant who, knowing the character and content of the material, promotes it on an Internet website or other forum for publication that the defendant owns or operates, is liable on the same footing.

The federal interactive computer service exception in the construction section limits how far that reaches.