STATE OF NEW YORK ________________________________________________________________________

1121

2021-2022 Regular Sessions

IN ASSEMBLY

January 7, 2021 ___________

Introduced by M. of A. BUTTENSCHON -- read once and referred to the Committee on Codes

AN ACT to amend the penal law, in relation to creating the certain offenses and provisions related to the unlawful dissemination of a personal image; and to amend the civil rights law, in relation to creating a private right of action for such offenses

The People of the State of New York, represented in Senate and Assem- bly, do enact as follows:

1 Section 1. The penal law is amended by adding four new sections 2 250.70, 250.71, 250.72 and 250.73 to read as follows: 3 § 250.70 Unlawful dissemination of a personal image; definitions, appli- 4 cation. 5 1. The following definitions shall apply to sections 250.71, 250.72 6 and 250.73 of this article: 7 (a) "broadcast" means electronically transmitting a visual image with 8 the intent that it be viewed by a person; 9 (b) "create" means to use or install, or permit the utilization or 10 installation of an imaging device to view, broadcast and/or record a 11 visual image of another person; 12 (c) "disseminate" means to give, provide, lend, deliver, mail, send, 13 forward, transfer or transmit, electronically or otherwise to another 14 person; 15 (d) "imaging device" means any mechanical, digital or electronic view- 16 ing device, camera, cellular phone or any other instrument capable of 17 recording, storing or transmitting visual images that can be utilized to 18 observe a person; 19 (e) "publish" means to: (i) disseminate, as defined in paragraph (c) 20 of this subdivision, with the intent that such image or images be 21 disseminated to ten or more persons; (ii) disseminate with the intent 22 that such images be sold by another person; (iii) post, present, 23 display, exhibit, circulate, advertise or allows access, electronically

EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02249-01-1

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1 or otherwise, so as to make an image or images available to the public; 2 or (iv) disseminate with the intent that an image or images be posted, 3 presented, displayed, exhibited, circulated, advertised or made accessi- 4 ble, electronically or otherwise and to make such image or images avail- 5 able to the public. 6 2. The following provisions shall apply to sections 250.71, 250.72 and 7 250.73 of this article: 8 (a) The provisions of these sections shall not apply to the following: 9 (i) the reporting of unlawful conduct; 10 (ii) the dissemination or publication of an image made during lawful 11 and common practices of law enforcement, legal proceedings or medical 12 treatment; 13 (iii) images involving activities in a public setting or activities in 14 a commercial setting in which legal activities are being conducted; or 15 (iv) the dissemination or publication of an image made for a legiti- 16 mate public purpose. 17 (b) Nothing in these sections shall be construed to limit, or to 18 enlarge, the protections that 47 U.S.C. § 230 confers on an interactive 19 computer service for content provided by another information content 20 provider, as such terms are defined in 47 U.S.C. § 230. 21 § 250.71 Unlawful dissemination of a personal image in the third degree. 22 A person is guilty of unlawful dissemination of a personal image in 23 the third degree when, with the intent of humiliating, demeaning, 24 degrading or abusing a person who has been the victim of an offense 25 described in title H of this part, or otherwise causing harm to the 26 emotional, financial or physical welfare of such victim or such victim's 27 family, or when, for his or her own, or another person's amusement, 28 entertainment or profit, he or she intentionally: 29 1. (a) creates and disseminates or publishes a still or video image of 30 such victim, without the victim's consent, in a manner that has no or 31 limited cultural or social value; and 32 (b) the victim is identifiable from the still or video image itself or 33 from information displayed in connection with the still or video image; 34 and 35 (c) the image depicts the commission of the offense against the victim 36 or physical injury suffered by the victim as a result of the commission 37 of the offense; or 38 2. acting as an agent of a person who creates an image as described in 39 subdivision one of this section, he or she disseminates or publishes 40 such image. 41 Unlawful dissemination of a personal image in the third degree is a 42 class B misdemeanor. 43 § 250.72 Unlawful dissemination of a personal image in the second 44 degree. 45 A person is guilty of unlawful dissemination of a personal image in 46 the second degree when he or she commits the offense of unlawful dissem- 47 ination of a personal image in the third degree and: 48 1. he or she committed, participated in the commission of, or 49 conspired to commit the offense against the victim; or 50 2. the victim suffered serious physical injury which is depicted in 51 the unlawfully disseminated image; or 52 3. he or she has been convicted within the previous ten years of 53 unlawful dissemination of a personal image in the third degree. 54 Unlawful dissemination of a personal image in the second degree is a 55 class A misdemeanor. 56 § 250.73 Unlawful dissemination of a personal image in the first degree.

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1 A person is guilty of dissemination of an unlawful dissemination of a 2 personal image in the first degree when he or she commits the offense of 3 unlawful dissemination of a personal image in the third degree and: 4 1. he or she committed, participated in the commission of, or 5 conspired to commit an offense described in article one hundred twenty- 6 five of this part against the victim; or 7 2. the victim suffered death or serious physical injury as a result of 8 the application of deadly physical force and such injury, death or the 9 application of deadly physical force is depicted in the unlawfully 10 disseminated image; or 11 3. he or she has been convicted within the previous ten years of 12 unlawful dissemination of a personal image in the second degree. 13 Unlawful dissemination of a personal image in the first degree is a 14 class E felony. 15 § 2. The civil rights law is amended by adding a new section 52-c to 16 read as follows: 17 § 52-c. Private right of action for unlawful dissemination or publica- 18 tion of a personal image. 1. Any person depicted in a still or video 19 image which was unlawfully disseminated as provided in section 250.71, 20 250.72 or 250.73 of the penal law shall have a cause of action against 21 an individual who disseminated or published, or threatened to dissem- 22 inate or publish, such still or video image without the consent of the 23 person depicted in the image. 24 2. In any action commenced pursuant to subdivision one of this 25 section, the finder of fact, in its discretion, may award injunctive 26 relief, punitive damages, compensatory damages and reasonable court 27 costs and attorney's fees. 28 3. This section shall not apply to the following: 29 a. the reporting of unlawful conduct; 30 b. the dissemination or publication of an image made during lawful and 31 common practices of law enforcement, legal proceedings or medical treat- 32 ment; 33 c. images involving activities in a public setting or activities in a 34 commercial setting in which legal activities are being conducted; or 35 d. the dissemination or publication of an image made for a legitimate 36 public purpose. 37 4. Any person depicted in a still or video image which was unlawfully 38 disseminated as provided in section 250.71, 250.72 or 250.73 of the 39 penal law may maintain an action or special proceeding for a court order 40 to require any website that is subject to personal jurisdiction under 41 subdivision five of this section to permanently remove such still or 42 video image; any such court order granted pursuant to this subdivision 43 may direct removal only as to images that are reasonably within such 44 website's control. 45 5. Any website that hosts or transmits a still or video image, view- 46 able in this state, which was unlawfully disseminated as provided in 47 section 250.71, 250.72 or 250.73 of the penal law and which image is 48 hosted or transmitted without the consent of the person depicted in the 49 image, shall be subject to personal jurisdiction in a civil action in 50 this state to the maximum extent permitted under the United States 51 constitution and federal law. 52 6. A cause of action or special proceeding under this section shall be 53 commenced the later of either: 54 a. three years after the dissemination or publication of an image; or 55 b. one year from the date a person discovers, or reasonably should 56 have discovered, the dissemination or publication of such image.

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1 7. Nothing herein shall be read to require a prior criminal complaint, 2 prosecution or conviction to establish the elements of the cause of 3 action provided for by this section. 4 8. The provisions of this section are in addition to, but shall not 5 supersede, any other rights or remedies available in law or equity. 6 9. If any provision of this section or its application to any person 7 or circumstance is held invalid, the invalidity shall not affect other 8 provisions or applications of this section which can be given effect 9 without the invalid provision or application, and to this end the 10 provisions of this section are severable. 11 10. Nothing in this section shall be construed to limit, or to 12 enlarge, the protections that 47 U.S.C. § 230 confers on an interactive 13 computer service for content provided by another information content 14 provider, as such terms are defined in 47 U.S.C. § 230. 15 § 3. This act shall take effect on the sixtieth day after it shall 16 have become a law.