Bill Text: NY S02221 | 2023-2024 | General Assembly | Introduced

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Bill Title: Provides for the offense of unlawful dissemination of a personal image and a private right of action for such offense.

Spectrum: Bipartisan Bill

Status: (Introduced) 2023-02-07 - SUBSTITUTED BY A975 [S02221 Detail]

Download: New_York-2023-S02221-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          2221

                               2023-2024 Regular Sessions

                    IN SENATE

                                    January 19, 2023
                                       ___________

        Introduced  by Sen. MARTINEZ -- 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 the certain  offenses  and
          provisions  related to the unlawful dissemination of a personal image;
          to amend the civil rights law, in relation to  the  private  right  of
          action  for  such  offenses;  and  to repeal certain provisions of the
          penal law relating thereto

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

     1    Section  1.  Section 250.72 of the penal law, as added by a chapter of
     2  the laws of 2022 amending the penal law  relating  to  creating  certain
     3  offenses  and  provisions  related  to  the  unlawful dissemination of a
     4  personal image; and amending the civil rights law relating to creating a
     5  private right of action for such offenses, as  proposed  in  legislative
     6  bills numbers S. 7211-B and A. 1121-C, is REPEALED.
     7    §  2. Sections 250.70 and 250.71 of the penal law, as added by a chap-
     8  ter of the laws of 2022 amending the  penal  law  relating  to  creating
     9  certain offenses and provisions related to the unlawful dissemination of
    10  a personal image; and amending the civil rights law relating to creating
    11  a  private right of action for such offenses, as proposed in legislative
    12  bills numbers S. 7211-B and A. 1121-C, are amended to read as follows:
    13  § 250.70 Unlawful dissemination of a personal image; definitions, appli-
    14             cation.
    15    1. The following definitions shall apply to [sections] section  250.71
    16  [and 250.72] of this article:
    17    (a)  "broadcast" means electronically transmitting a visual image with
    18  the intent that it be viewed by a person;
    19    (b) "disseminate" means to give, provide, lend, deliver,  mail,  send,
    20  forward,  transfer  or  transmit, electronically or otherwise to another
    21  person;

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04029-01-3
        S. 2221                             2

     1    (c) "publish" means to: (i) disseminate, as defined in  paragraph  (b)
     2  of  this  subdivision,  with  the  intent  that  such image or images be
     3  disseminated to ten or more persons; (ii) disseminate  with  the  intent
     4  that  such  images  be  sold  by  another  person;  (iii) post, present,
     5  display,  exhibit, circulate, advertise or allows access, electronically
     6  or otherwise, so as to make an image or images available to the  public;
     7  or  (iv)  disseminate with the intent that an image or images be posted,
     8  presented, displayed, exhibited, circulated, advertised or made accessi-
     9  ble, electronically or otherwise and to make such image or images avail-
    10  able to the public[.];
    11    (d) "family" means a parent or guardian, sibling, spouse, or child  of
    12  a  person  depicted  in  an  image  disseminated in violation of section
    13  250.71 of this article.
    14    (e) "social media platform" means a website, online or mobile applica-
    15  tion, or online service that is designed primarily to enable a  user  to
    16  generate or share content that can be viewed by other users on the plat-
    17  form  or to interact with other user-generated content on such platform.
    18  "Social media platform" does not include a  website,  online  or  mobile
    19  application,  or  online  service that is designed primarily to enable a
    20  user to access content on the platform that is not user-generated and is
    21  preselected or organized by the provider; or a website, online or mobile
    22  application, or online service that includes any chat, comment, or other
    23  interactive functionality that is incidental to the  provision  of  such
    24  website, application, or service.
    25    2.  The  following provisions shall apply to [sections] section 250.71
    26  [and 250.72] of this article:
    27    (a) The provisions of [these sections] section 270.71 of this  article
    28  shall not apply to the following:
    29    (i) the reporting of suspected unlawful conduct to law enforcement;
    30    (ii)  the dissemination or publication of an image made [during lawful
    31  and common practices of] in  the  course  of  official  law  enforcement
    32  duties, legal proceedings or criminal prosecution, or medical treatment;
    33  or
    34    (iii)  [images  involving activities in a public setting or activities
    35  in a commercial setting in which legal activities are  being  conducted;
    36  or
    37    (iv)]  the dissemination or publication of an image made for a legiti-
    38  mate public [purpose] discourse concerning local, national, or worldwide
    39  events or other matters of public concern or public interest or  affect-
    40  ing  the  public  welfare;  any  work of public interest, educational or
    41  newsworthy value, including comment, criticism, parody  or  satire,  and
    42  works of entertainment, regardless of the degree of fictionalization; or
    43  an  advertisement  or  commercial  announcement for any of the foregoing
    44  works.
    45    (b) Nothing in these sections 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.  With  respect  to  [sections]  section 250.71 [and 250.72] of this
    50  article, the provisions of subdivision two of section 235.15 and  subdi-
    51  visions one and two of section 235.24 of this part shall apply.
    52  §  250.71  Unlawful  dissemination  of  a  personal image [in the second
    53             degree].
    54    A person is guilty of unlawful dissemination of a personal  image  [in
    55  the  second  degree]  when,  with  the  intent of degrading or abusing a
    56  person who has been the victim of a crime described in title H  of  this
        S. 2221                             3

     1  part,  or otherwise causing harm to the emotional, financial or physical
     2  welfare of such victim or such victim's family, [or for the actor's  own
     3  or  another  person's amusement, entertainment or profit, the actor] the
     4  person intentionally:
     5    1. (a) creates and disseminates or publishes a still or video image of
     6  such victim on a social media platform, without the victim's consent, in
     7  a manner that has no or minimal cultural or social value; [and]
     8    (b) the victim is identifiable from the still or video image itself or
     9  from  information displayed in connection with the still or video image;
    10  [and]
    11    (c) [the image depicts the commission of the crime against the  victim
    12  or  physical injury suffered by the victim as a result of the commission
    13  of the crime; or] the victim suffered physical injury as a result  of  a
    14  sex offense as defined by article one hundred thirty of this part, seri-
    15  ous  physical  injury  as a result of any non-sex offense, or death, and
    16  this injury or death is depicted in the image; and
    17    (d) the  actor  committed,  participated  in  the  commission  of,  or
    18  conspired  to  commit  the  crime  that  resulted in such injury to such
    19  victim; or
    20    2. acting as an agent of the actor who created an image  in  violation
    21  of  subdivision one of this section, he or she knowingly disseminates or
    22  publishes such image.
    23    Unlawful dissemination of a personal image in the second degree  is  a
    24  class [B] A misdemeanor.
    25    §  3.  Section  52-d of the civil rights law, as added by a chapter of
    26  the laws of 2022 amending the penal law  relating  to  creating  certain
    27  offenses  and  provisions  related  to  the  unlawful dissemination of a
    28  personal image; and amending the civil rights law relating to creating a
    29  private right of action for such offenses, as  proposed  in  legislative
    30  bills numbers S. 7211-B and A. 1121-C, is amended to read as follows:
    31    § 52-d. Private right of action for unlawful dissemination or publica-
    32  tion  of  a  personal  image. 1. Any crime victim depicted in a still or
    33  video image which was unlawfully disseminated  as  provided  in  section
    34  250.71 [or 250.72] of the penal law shall have a cause of action against
    35  such  individual who disseminated or published such still or video image
    36  without the consent of the person depicted in the image in violation  of
    37  section 250.71 of the penal law.
    38    2.  In  any  action  commenced  pursuant  to  subdivision  one of this
    39  section, the finder of fact, in its  discretion,  may  award  injunctive
    40  relief,  punitive  damages,  compensatory  damages  and reasonable court
    41  costs and attorneys' fees.
    42    3. This section shall not apply to the following:
    43    a. the reporting of suspected unlawful conduct to law enforcement;
    44    b. the dissemination or publication of an image made [during]  in  the
    45  course   of   official   law   enforcement  [activities]  duties,  legal
    46  proceedings or criminal prosecution, or medical treatment; or
    47    c. [images involving activities in a public setting or activities in a
    48  commercial setting in which legal activities are being conducted; or
    49    d.] the dissemination or publication of an image made for a legitimate
    50  public [purpose] discourse  concerning  local,  national,  or  worldwide
    51  events  or other matters of public concern or public interest or affect-
    52  ing the public welfare; any work  of  public  interest,  educational  or
    53  newsworthy  value,  including  comment, criticism, parody or satire, and
    54  works of entertainment, regardless of the degree of fictionalization; or
    55  an advertisement or commercial announcement for  any  of  the  foregoing
    56  works.
        S. 2221                             4

     1    4.  Any such crime victim depicted in a still or video image which was
     2  unlawfully disseminated as provided in section 250.71 [or 250.72] of the
     3  penal law, or such person's estate, may maintain an  action  or  special
     4  proceeding for a court order to require any [website] social media plat-
     5  form  that is subject to personal jurisdiction under subdivision five of
     6  this section to permanently remove such still or video image;  any  such
     7  court order granted pursuant to this subdivision may direct removal only
     8  as  to  images  that are reasonably within such [website's] social media
     9  platform's control.
    10    5. [Any website that hosts or transmits a still or video image,  view-
    11  able  in  this  state,  which was unlawfully disseminated as provided in
    12  section 250.71 or 250.72 of the penal law and which image is  hosted  or
    13  transmitted  without  the  consent  of the person depicted in the image,
    14  shall be subject to personal jurisdiction in  a  civil  action  in  this
    15  state  to the maximum extent permitted under the United States constitu-
    16  tion and federal law.
    17    6.] A cause of action or special proceeding under this  section  shall
    18  be commenced the later of either:
    19    a.  three  years after the dissemination or publication of such image;
    20  or
    21    b. one year from the date the plaintiff or petitioners discovered,  or
    22  reasonably  should have discovered, such dissemination or publication of
    23  such image.
    24    [7.] 6. Nothing in this section shall be read to require a prior crim-
    25  inal complaint, prosecution or conviction to establish the  elements  of
    26  the cause of action provided for by this section.
    27    [8.]  7.  The provisions of this section are in addition to, but shall
    28  not supersede, any other rights or remedies available in law or equity.
    29    [9.] 8. If any provision of this section or  its  application  to  any
    30  person  or circumstance is held invalid, the invalidity shall not affect
    31  other provisions or applications of this  section  which  can  be  given
    32  effect without the invalid provision or application, and to this end the
    33  provisions of this section are severable.
    34    [10.]  9.  Nothing  in this section shall be construed to limit, or to
    35  enlarge, the protections that 47 U.S.C. § 230 confers on an  interactive
    36  computer  service  for  content  provided by another information content
    37  provider, as such terms are defined in 47 U.S.C. § 230.
    38    § 4. This act shall take effect on the  same  date  and  in  the  same
    39  manner  as a chapter of the laws of 2022 amending the penal law relating
    40  to creating certain offenses and  provisions  related  to  the  unlawful
    41  dissemination  of  a  personal  image; and amending the civil rights law
    42  relating to creating a private right of action  for  such  offenses,  as
    43  proposed  in  legislative  bills  numbers S. 7211-B and A. 1121-C, takes
    44  effect.