Bill Text: NY S09090 | 2019-2020 | General Assembly | Introduced


Bill Title: Creates certain offenses and provisions related to the unlawful dissemination of a personal image; creates a private right of action for such offenses.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2020-11-13 - REFERRED TO RULES [S09090 Detail]

Download: New_York-2019-S09090-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          9090

                    IN SENATE

                                    November 13, 2020
                                       ___________

        Introduced  by  Sen.  GRIFFO -- read twice and ordered printed, and when
          printed to be committed to the Committee on Rules

        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
    24  or  otherwise, so as to make an image or images available to the public;
    25  or (iv) disseminate with the intent that an image or images  be  posted,
    26  presented, displayed, exhibited, circulated, advertised or made accessi-

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD17398-01-0

        S. 9090                             2

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

        S. 9090                             3

     1    1. he  or  she  committed,  participated  in  the  commission  of,  or
     2  conspired  to commit an offense described in article one hundred twenty-
     3  five of this chapter against the victim; or
     4    2. the victim suffered death or serious physical injury as a result of
     5  the  application  of deadly physical force and such injury, death or the
     6  application of deadly physical  force  is  depicted  in  the  unlawfully
     7  disseminated image; or
     8    3.  he  or  she  has  been  convicted within the previous ten years of
     9  unlawful dissemination of a personal image in the second degree.
    10    Unlawful dissemination of a personal image in the first  degree  is  a
    11  class E felony.
    12    §  2.  The civil rights law is amended by adding a new section 52-c to
    13  read as follows:
    14    § 52-c. Private right of action for unlawful dissemination or publica-
    15  tion of a personal image. 1. Any person depicted in  a  still  or  video
    16  image  which  was unlawfully disseminated as provided in section 250.71,
    17  250.72 or 250.73 of the penal law shall have a cause of  action  against
    18  an  individual  who  disseminated or published, or threatened to dissem-
    19  inate or publish, such still or video image without the consent  of  the
    20  person depicted in the image.
    21    2.  In  any  action  commenced  pursuant  to  subdivision  one of this
    22  section, the finder of fact, in its  discretion,  may  award  injunctive
    23  relief,  punitive  damages,  compensatory  damages  and reasonable court
    24  costs and attorney's fees.
    25    3. This section shall not apply to the following:
    26    a. the reporting of unlawful conduct;
    27    b. the dissemination or publication of an image made during lawful and
    28  common practices of law enforcement, legal proceedings or medical treat-
    29  ment;
    30    c. images involving activities in a public setting or activities in  a
    31  commercial setting in which legal activities are being conducted; or
    32    d.  the dissemination or publication of an image made for a legitimate
    33  public purpose.
    34    4. Any person depicted in a still or video image which was  unlawfully
    35  disseminated  as  provided  in  section  250.71, 250.72 or 250.73 of the
    36  penal law may maintain an action or special proceeding for a court order
    37  to require any website that is subject to  personal  jurisdiction  under
    38  subdivision  five  of  this  section to permanently remove such still or
    39  video image; any such court order granted pursuant to  this  subdivision
    40  may  direct  removal  only  as to images that are reasonably within such
    41  website's control.
    42    5. Any website that hosts or transmits a still or video  image,  view-
    43  able  in  this  state,  which was unlawfully disseminated as provided in
    44  section 250.71, 250.72 or 250.73 of the penal law  and  which  image  is
    45  hosted  or transmitted without the consent of the person depicted in the
    46  image, shall be subject to personal jurisdiction in a  civil  action  in
    47  this  state  to  the  maximum  extent  permitted under the United States
    48  constitution and federal law.
    49    6. A cause of action or special proceeding under this section shall be
    50  commenced the later of either:
    51    a. three years after the dissemination or publication of an image; or
    52    b. one year from the date a person  discovers,  or  reasonably  should
    53  have discovered, the dissemination or publication of such image.
    54    7. Nothing herein shall be read to require a prior criminal complaint,
    55  prosecution  or  conviction  to  establish  the elements of the cause of
    56  action provided for by this section.

        S. 9090                             4

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