STATE OF NEW YORK ________________________________________________________________________
1121--C Cal. No. 62
2021-2022 Regular Sessions
IN ASSEMBLY
January 7, 2021 ___________
Introduced by M. of A. BUTTENSCHON, GALEF, JACKSON, FALL, GUNTHER, ABINANTI, SILLITTI, JONES, JACOBSON, CONRAD, GRIFFIN -- read once and referred to the Committee on Codes -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee -- ordered to a third reading, amended and ordered reprinted, retaining its place on the order of third reading -- passed by Assem- bly and delivered to the Senate, recalled from the Senate, vote recon- sidered, bill amended, ordered reprinted, retaining its place on the order of third reading
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. This act shall be known and may be cited as "Bianca and 2 Caroline's Law". 3 § 2. The penal law is amended by adding three new sections 250.70, 4 250.71, and 250.72 to read as follows: 5 § 250.70 Unlawful dissemination of a personal image; definitions, appli- 6 cation. 7 1. The following definitions shall apply to sections 250.71 and 250.72 8 of this article: 9 (a) "broadcast" means electronically transmitting a visual image with 10 the intent that it be viewed by a person; 11 (b) "disseminate" means to give, provide, lend, deliver, mail, send, 12 forward, transfer or transmit, electronically or otherwise to another 13 person; 14 (c) "publish" means to: (i) disseminate, as defined in paragraph (b) 15 of this subdivision, with the intent that such image or images be 16 disseminated to ten or more persons; (ii) disseminate with the intent
EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02249-07-2
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1 that such images be sold by another person; (iii) post, present, 2 display, exhibit, circulate, advertise or allows access, electronically 3 or otherwise, so as to make an image or images available to the public; 4 or (iv) disseminate with the intent that an image or images be posted, 5 presented, displayed, exhibited, circulated, advertised or made accessi- 6 ble, electronically or otherwise and to make such image or images avail- 7 able to the public. 8 2. The following provisions shall apply to sections 250.71 and 250.72 9 of this article: 10 (a) The provisions of these sections shall not apply to the following: 11 (i) the reporting of unlawful conduct; 12 (ii) the dissemination or publication of an image made during lawful 13 and common practices of law enforcement, legal proceedings or medical 14 treatment; 15 (iii) images involving activities in a public setting or activities in 16 a commercial setting in which legal activities are being conducted; or 17 (iv) the dissemination or publication of an image made for a legiti- 18 mate public purpose. 19 (b) Nothing in these sections shall be construed to limit, or to 20 enlarge, the protections that 47 U.S.C. § 230 confers on an interactive 21 computer service for content provided by another information content 22 provider, as such terms are defined in 47 U.S.C. § 230. 23 3. With respect to sections 250.71 and 250.72 of this article, the 24 provisions of subdivision two of section 235.15 and subdivisions one and 25 two of section 235.24 of this part shall apply. 26 § 250.71 Unlawful dissemination of a personal image in the second 27 degree. 28 A person is guilty of unlawful dissemination of a personal image in 29 the second degree when, with the intent of degrading or abusing a person 30 who has been the victim of a crime described in title H of this part, or 31 otherwise causing harm to the emotional, financial or physical welfare 32 of such victim or such victim's family, or for the actor's own or anoth- 33 er person's amusement, entertainment or profit, the actor intentionally: 34 1. (a) creates and disseminates or publishes a still or video image of 35 such victim, without the victim's consent, in a manner that has no or 36 minimal cultural or social value; and 37 (b) the victim is identifiable from the still or video image itself or 38 from information displayed in connection with the still or video image; 39 and 40 (c) the image depicts the commission of the crime against the victim 41 or physical injury suffered by the victim as a result of the commission 42 of the crime; or 43 2. acting as an agent of the actor who created an image in violation 44 of subdivision one of this section, he or she knowingly disseminates or 45 publishes such image. 46 Unlawful dissemination of a personal image in the second degree is a 47 class B misdemeanor. 48 § 250.72 Unlawful dissemination of a personal image in the first degree. 49 A person is guilty of unlawful dissemination of a personal image in 50 the first degree when he or she commits the offense of unlawful dissem- 51 ination of a personal image in the second degree and: 52 1. he or she committed, participated in the commission of, or 53 conspired to commit the crime that resulted in such injury to such 54 victim; or 55 2. the victim suffered serious physical injury or death which is 56 depicted in the unlawfully disseminated image.
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1 Unlawful dissemination of a personal image in the first degree is a 2 class A misdemeanor. 3 § 3. The civil rights law is amended by adding a new section 52-d to 4 read as follows: 5 § 52-d. Private right of action for unlawful dissemination or publica- 6 tion of a personal image. 1. Any crime victim depicted in a still or 7 video image which was unlawfully disseminated as provided in section 8 250.71 or 250.72 of the penal law shall have a cause of action against 9 such individual who disseminated or published such still or video image 10 without the consent of the person depicted in the image. 11 2. In any action commenced pursuant to subdivision one of this 12 section, the finder of fact, in its discretion, may award injunctive 13 relief, punitive damages, compensatory damages and reasonable court 14 costs and attorneys' fees. 15 3. This section shall not apply to the following: 16 a. the reporting of unlawful conduct; 17 b. the dissemination or publication of an image made during law 18 enforcement activities, legal proceedings or medical treatment; 19 c. images involving activities in a public setting or activities in a 20 commercial setting in which legal activities are being conducted; or 21 d. the dissemination or publication of an image made for a legitimate 22 public purpose. 23 4. Any such crime victim depicted in a still or video image which was 24 unlawfully disseminated as provided in section 250.71 or 250.72 of the 25 penal law, or such person's estate, may maintain an action or special 26 proceeding for a court order to require any website that is subject to 27 personal jurisdiction under subdivision five of this section to perma- 28 nently remove such still or video image; any such court order granted 29 pursuant to this subdivision may direct removal only as to images that 30 are reasonably within such website's control. 31 5. Any website that hosts or transmits a still or video image, view- 32 able in this state, which was unlawfully disseminated as provided in 33 section 250.71 or 250.72 of the penal law and which image is hosted or 34 transmitted without the consent of the person depicted in the image, 35 shall be subject to personal jurisdiction in a civil action in this 36 state to the maximum extent permitted under the United States constitu- 37 tion and federal law. 38 6. A cause of action or special proceeding under this section shall be 39 commenced the later of either: 40 a. three years after the dissemination or publication of such image; 41 or 42 b. one year from the date the plaintiff or petitioners discovered, or 43 reasonably should have discovered, such dissemination or publication of 44 such image. 45 7. Nothing in this section shall be read to require a prior criminal 46 complaint, prosecution or conviction to establish the elements of the 47 cause of action provided for by this section. 48 8. The provisions of this section are in addition to, but shall not 49 supersede, any other rights or remedies available in law or equity. 50 9. If any provision of this section or its application to any person 51 or circumstance is held invalid, the invalidity shall not affect other 52 provisions or applications of this section which can be given effect 53 without the invalid provision or application, and to this end the 54 provisions of this section are severable. 55 10. Nothing in this section shall be construed to limit, or to 56 enlarge, the protections that 47 U.S.C. § 230 confers on an interactive
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1 computer service for content provided by another information content 2 provider, as such terms are defined in 47 U.S.C. § 230. 3 § 4. This act shall take effect on the sixtieth day after it shall 4 have become a law.