STATE OF NEW YORK
________________________________________________________________________
6862
2021-2022 Regular Sessions
IN ASSEMBLY
April 13, 2021
___________
Introduced by M. of A. PAULIN, DINOWITZ, SEAWRIGHT, DICKENS, FRONTUS,
GALEF, GUNTHER, JACKSON, SIMON, STECK, ZINERMAN, McDONOUGH -- read
once and referred to the Committee on Codes
AN ACT to amend the penal law and the civil rights law, in relation to
unlawful dissemination or publication of intimate images created by
digitization
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Subdivision 1 of section 245.15 of the penal law, as added
2 by chapter 109 of the laws of 2019, is amended and new subdivision 2-b
3 is added to read as follows:
4 1. A person is guilty of unlawful dissemination or publication of an
5 intimate image when:
6 (a) with intent to cause harm to the emotional, financial or physical
7 welfare of another person, he or she intentionally disseminates or
8 publishes a still or video, including an image created by digitization,
9 image of such other person, who is identifiable from the still or video
10 image itself or from information displayed in connection with the still
11 or video image, without such other person's consent, which depicts:
12 (i) an unclothed or exposed intimate part of such other person; or
13 (ii) such other person engaging in sexual conduct as defined in subdi-
14 vision ten of section 130.00 of this chapter with another person; and
15 (b) such still or video image was:
16 (i) taken under circumstances when the person depicted had a reason-
17 able expectation that the image would remain private and the actor knew
18 or reasonably should have known the person depicted intended for the
19 still or video image to remain private, regardless of whether the actor
20 was present when the still or video image was taken[.]; or
21 (ii) created by digitization and the actor knew or reasonably should
22 have known the person depicted did not consent to its creation.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10561-01-1
A. 6862 2
1 2-b. For purposes of this section "digitization" means to realis-
2 tically depict any of the following:
3 (a) The nude body parts of another human being as the nude body parts
4 of the depicted person.
5 (b) Computer-generated nude body parts as the nude body parts of the
6 depicted person.
7 (c) The depicted person engaging in sexual conduct in which the
8 depicted person did not engage.
9 § 2. Section 52-b of the civil rights law, as added by chapter 109 of
10 the laws of 2019, is amended to read as follows:
11 § 52-b. Private right of action for unlawful dissemination or publica-
12 tion of an intimate image. 1. For purposes of this section "digitiza-
13 tion" means to realistically depict any of the following:
14 (a) The nude body parts of another human being as the nude body parts
15 of the depicted person.
16 (b) Computer-generated nude body parts as the nude body parts of the
17 depicted person.
18 (c) The depicted person engaging in sexual conduct in which the
19 depicted person did not engage.
20 2. Any person depicted in a still or video image, regardless of wheth-
21 er or not the original still or video image was consensually obtained,
22 shall have a cause of action against an individual who, for the purpose
23 of harassing, annoying or alarming such person, disseminated or
24 published, or threatened to disseminate or publish, such still or video
25 image, where such image:
26 a. was taken when such person had a reasonable expectation that the
27 image would remain private; and
28 b. depicts (i) an unclothed or exposed intimate part of such person;
29 or (ii) such person engaging in sexual conduct, as defined in subdivi-
30 sion ten of section 130.00 of the penal law, with another person; and
31 c. was disseminated or published, or threatened to be disseminated or
32 published, without the consent of such person.
33 3. Any person depicted in a still or video image, shall have a cause
34 of action against an individual who, for the purpose of harassing,
35 annoying or alarming such person, disseminated or published, or
36 threatened to disseminate or publish, such still or video image, where
37 such image:
38 a. was created by digitization without the consent of the person; and
39 b. depicts (i) an unclothed or exposed intimate part of such person
40 or (ii) such person engaging in sexual conduct, as defined in
41 subdivision ten of section 130.00 of the penal law, with another person;
42 and
43 c. was disseminated or published, or threatened to be disseminated or
44 published, without the consent of such person.
45 [2] 4. In any action commenced pursuant to [subdivision one] subdivi-
46 sions two and three of this section, the finder of fact, in its
47 discretion, may award injunctive relief, punitive damages, compensatory
48 damages and reasonable court costs and attorney's fees.
49 [3] 5. This section shall not apply to the following:
50 a. the reporting of unlawful conduct;
51 b. dissemination or publication of an intimate still or video image
52 made during lawful and common practices of law enforcement, legal
53 proceedings or medical treatment;
54 c. images involving voluntary exposure in a public or commercial
55 setting; or
A. 6862 3
1 d. dissemination or publication of an intimate still or video image
2 made for a legitimate public purpose.
3 [4] 6. Any person depicted in a still or video image that depicts an
4 unclothed or exposed intimate part of such person, or such person engag-
5 ing in sexual conduct as defined in subdivision ten of section 130.00 of
6 the penal law with another person, which is disseminated or published
7 without the consent of such person and where such person had a reason-
8 able expectation that the image would remain private, or where such
9 still or video image was created by digitization without the consent of
10 the person, may maintain an action or special proceeding for a court
11 order to require any website that is subject to personal jurisdiction
12 under subdivision five of this section to permanently remove such still
13 or video image; any such court order granted pursuant to this subdivi-
14 sion may direct removal only as to images that are reasonably within
15 such website's control.
16 [5] 7. a. Any website that hosts or transmits a still or video image,
17 viewable in this state, taken under circumstances where the person
18 depicted had a reasonable expectation that the image would remain
19 private, or where such still or video image was created by digitization
20 without the consent of the person, which depicts:
21 (i) an unclothed or exposed intimate part, as defined in section
22 245.15 of the penal law, of a resident of this state; or
23 (ii) a resident of this state engaging in sexual conduct as defined in
24 subdivision ten of section 130.00 of the penal law with another person;
25 and
26 b. Such still or video image is hosted or transmitted without the
27 consent of such resident of this state, shall be subject to personal
28 jurisdiction in a civil action in this state to the maximum extent
29 permitted under the United States constitution and federal law.
30 [6] 8. A cause of action or special proceeding under this section
31 shall be commenced the later of either:
32 a. three years after the dissemination or publication of an image; or
33 b. one year from the date a person discovers, or reasonably should
34 have discovered, the dissemination or publication of such image.
35 [7] 9. Nothing herein shall be read to require a prior criminal
36 complaint, prosecution or conviction to establish the elements of the
37 cause of action provided for by this section.
38 [8] 10. The provisions of this section are in addition to, but shall
39 not supersede, any other rights or remedies available in law or equity.
40 [9] 11. If any provision of this section or its application to any
41 person or circumstance is held invalid, the invalidity shall not affect
42 other provisions or applications of this section which can be given
43 effect without the invalid provision or application, and to this end the
44 provisions of this section are severable.
45 [10] 12. Nothing in this section shall be construed to limit, or to
46 enlarge, the protections that 47 U.S.C § 230 confers on an interactive
47 computer service for content provided by another information content
48 provider, as such terms are defined in 47 U.S.C. § 230.
49 § 3. This act shall take effect on the sixtieth day after it shall
50 have become a law.