S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   11093
 
                           I N  A S S E M B L Y
 
                             October 28, 2020
                                ___________
 
 Introduced by COMMITTEE ON RULES -- (at request of 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:
 
   Section  1.  The  penal  law  is  amended  by adding four new sections
 250.70, 250.71, 250.72 and 250.73 to read as follows:
 § 250.70 UNLAWFUL DISSEMINATION OF A PERSONAL IMAGE; DEFINITIONS, APPLI-
            CATION.
   1. THE FOLLOWING DEFINITIONS SHALL APPLY TO  SECTIONS  250.71,  250.72
 AND 250.73 OF THIS ARTICLE:
   (A)  "BROADCAST" MEANS ELECTRONICALLY TRANSMITTING A VISUAL IMAGE WITH
 THE INTENT THAT IT BE VIEWED BY A PERSON;
   (B) "CREATE" MEANS TO USE OR INSTALL, OR  PERMIT  THE  UTILIZATION  OR
 INSTALLATION  OF  AN  IMAGING  DEVICE TO VIEW, BROADCAST AND/OR RECORD A
 VISUAL IMAGE OF ANOTHER PERSON;
   (C) "DISSEMINATE" MEANS TO GIVE, PROVIDE, LEND, DELIVER,  MAIL,  SEND,
 FORWARD,  TRANSFER  OR  TRANSMIT, ELECTRONICALLY OR OTHERWISE TO ANOTHER
 PERSON;
   (D) "IMAGING DEVICE" MEANS ANY MECHANICAL, DIGITAL OR ELECTRONIC VIEW-
 ING DEVICE, CAMERA, CELLULAR PHONE OR ANY OTHER  INSTRUMENT  CAPABLE  OF
 RECORDING, STORING OR TRANSMITTING VISUAL IMAGES THAT CAN BE UTILIZED TO
 OBSERVE A PERSON;
   (E)  "PUBLISH"  MEANS TO: (I) DISSEMINATE, AS DEFINED IN PARAGRAPH (C)
 OF THIS SUBDIVISION, WITH THE  INTENT  THAT  SUCH  IMAGE  OR  IMAGES  BE
 DISSEMINATED  TO  TEN  OR MORE PERSONS; (II) DISSEMINATE WITH THE INTENT
 THAT SUCH IMAGES  BE  SOLD  BY  ANOTHER  PERSON;  (III)  POST,  PRESENT,
 DISPLAY,  EXHIBIT, CIRCULATE, ADVERTISE OR ALLOWS ACCESS, ELECTRONICALLY
 OR OTHERWISE, SO AS TO MAKE AN IMAGE OR IMAGES AVAILABLE TO THE  PUBLIC;
 OR  (IV)  DISSEMINATE WITH THE INTENT THAT AN IMAGE OR IMAGES BE POSTED,
 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

 A. 11093                            2
 
 BLE, ELECTRONICALLY OR OTHERWISE AND TO MAKE SUCH IMAGE OR IMAGES AVAIL-
 ABLE TO THE PUBLIC.
   2. THE FOLLOWING PROVISIONS SHALL APPLY TO SECTIONS 250.71, 250.72 AND
 250.73 OF THIS ARTICLE:
   (A) THE PROVISIONS OF THESE SECTIONS SHALL NOT APPLY TO THE FOLLOWING:
   (I) THE REPORTING OF UNLAWFUL CONDUCT;
   (II)  THE  DISSEMINATION OR PUBLICATION OF AN IMAGE MADE DURING LAWFUL
 AND COMMON PRACTICES OF LAW ENFORCEMENT, LEGAL  PROCEEDINGS  OR  MEDICAL
 TREATMENT;
   (III) IMAGES INVOLVING ACTIVITIES IN A PUBLIC SETTING OR ACTIVITIES IN
 A COMMERCIAL SETTING IN WHICH LEGAL ACTIVITIES ARE BEING CONDUCTED; OR
   (IV)  THE  DISSEMINATION OR PUBLICATION OF AN IMAGE MADE FOR A LEGITI-
 MATE PUBLIC PURPOSE.
   (B) NOTHING IN THESE SECTIONS SHALL  BE  CONSTRUED  TO  LIMIT,  OR  TO
 ENLARGE,  THE PROTECTIONS THAT 47 U.S.C. § 230 CONFERS ON AN INTERACTIVE
 COMPUTER SERVICE FOR CONTENT PROVIDED  BY  ANOTHER  INFORMATION  CONTENT
 PROVIDER, AS SUCH TERMS ARE DEFINED IN 47 U.S.C. § 230.
 § 250.71 UNLAWFUL DISSEMINATION OF A PERSONAL IMAGE IN THE THIRD DEGREE.
   A  PERSON  IS  GUILTY OF UNLAWFUL DISSEMINATION OF A PERSONAL IMAGE IN
 THE THIRD DEGREE  WHEN,  WITH  THE  INTENT  OF  HUMILIATING,  DEMEANING,
 DEGRADING  OR  ABUSING  A  PERSON  WHO HAS BEEN THE VICTIM OF AN OFFENSE
 DESCRIBED IN TITLE H OF THIS PART, OR  OTHERWISE  CAUSING  HARM  TO  THE
 EMOTIONAL, FINANCIAL OR PHYSICAL WELFARE OF SUCH VICTIM OR SUCH VICTIM'S
 FAMILY,  OR  WHEN,  FOR  HIS  OR HER OWN, OR ANOTHER PERSON'S AMUSEMENT,
 ENTERTAINMENT OR PROFIT, HE OR SHE INTENTIONALLY:
   1. (A) CREATES AND DISSEMINATES OR PUBLISHES A STILL OR VIDEO IMAGE OF
 SUCH VICTIM, WITHOUT THE VICTIM'S CONSENT, IN A MANNER THAT  HAS  NO  OR
 LIMITED CULTURAL OR SOCIAL VALUE; AND
   (B) THE VICTIM IS IDENTIFIABLE FROM THE STILL OR VIDEO IMAGE ITSELF OR
 FROM  INFORMATION DISPLAYED IN CONNECTION WITH THE STILL OR VIDEO IMAGE;
 AND
   (C) THE IMAGE DEPICTS THE COMMISSION OF THE OFFENSE AGAINST THE VICTIM
 OR PHYSICAL INJURY SUFFERED BY THE VICTIM AS A RESULT OF THE  COMMISSION
 OF THE OFFENSE; OR
   2. ACTING AS AN AGENT OF A PERSON WHO CREATES AN IMAGE AS DESCRIBED IN
 SUBDIVISION  ONE  OF  THIS  SECTION, HE OR SHE DISSEMINATES OR PUBLISHES
 SUCH IMAGE.
   UNLAWFUL DISSEMINATION OF A PERSONAL IMAGE IN THE THIRD  DEGREE  IS  A
 CLASS B MISDEMEANOR.
 §  250.72  UNLAWFUL  DISSEMINATION  OF  A  PERSONAL  IMAGE IN THE SECOND
            DEGREE.
   A PERSON IS GUILTY OF UNLAWFUL DISSEMINATION OF A  PERSONAL  IMAGE  IN
 THE SECOND DEGREE WHEN HE OR SHE COMMITS THE OFFENSE OF UNLAWFUL DISSEM-
 INATION OF A PERSONAL IMAGE IN THE THIRD DEGREE AND:
   1.  HE  OR  SHE  COMMITTED,  PARTICIPATED  IN  THE  COMMISSION  OF, OR
 CONSPIRED TO COMMIT THE OFFENSE AGAINST THE VICTIM; OR
   2. THE VICTIM SUFFERED SERIOUS PHYSICAL INJURY WHICH  IS  DEPICTED  IN
 THE UNLAWFULLY DISSEMINATED IMAGE; OR
   3.  HE  OR  SHE  HAS  BEEN  CONVICTED WITHIN THE PREVIOUS TEN YEARS OF
 UNLAWFUL DISSEMINATION OF A PERSONAL IMAGE IN THE THIRD DEGREE.
   UNLAWFUL DISSEMINATION OF A PERSONAL IMAGE IN THE SECOND DEGREE  IS  A
 CLASS A MISDEMEANOR.
 § 250.73 UNLAWFUL DISSEMINATION OF A PERSONAL IMAGE IN THE FIRST DEGREE.
   A  PERSON IS GUILTY OF DISSEMINATION OF AN UNLAWFUL DISSEMINATION OF A
 PERSONAL IMAGE IN THE FIRST DEGREE WHEN HE OR SHE COMMITS THE OFFENSE OF
 UNLAWFUL DISSEMINATION OF A PERSONAL IMAGE IN THE THIRD DEGREE AND:

 A. 11093                            3
 
   1. HE  OR  SHE  COMMITTED,  PARTICIPATED  IN  THE  COMMISSION  OF,  OR
 CONSPIRED  TO COMMIT AN OFFENSE DESCRIBED IN ARTICLE ONE HUNDRED TWENTY-
 FIVE OF THIS CHAPTER AGAINST THE VICTIM; OR
   2. THE VICTIM SUFFERED DEATH OR SERIOUS PHYSICAL INJURY AS A RESULT OF
 THE  APPLICATION  OF DEADLY PHYSICAL FORCE AND SUCH INJURY, DEATH OR THE
 APPLICATION OF DEADLY PHYSICAL  FORCE  IS  DEPICTED  IN  THE  UNLAWFULLY
 DISSEMINATED IMAGE; OR
   3.  HE  OR  SHE  HAS  BEEN  CONVICTED WITHIN THE PREVIOUS TEN YEARS OF
 UNLAWFUL DISSEMINATION OF A PERSONAL IMAGE IN THE SECOND DEGREE.
   UNLAWFUL DISSEMINATION OF A PERSONAL IMAGE IN THE FIRST  DEGREE  IS  A
 CLASS E FELONY.
   §  2.  The civil rights law is amended by adding a new section 52-c to
 read as follows:
   § 52-C. PRIVATE RIGHT OF ACTION FOR UNLAWFUL DISSEMINATION OR PUBLICA-
 TION OF A PERSONAL IMAGE. 1. ANY PERSON DEPICTED IN  A  STILL  OR  VIDEO
 IMAGE  WHICH  WAS UNLAWFULLY DISSEMINATED AS PROVIDED IN SECTION 250.71,
 250.72 OR 250.73 OF THE PENAL LAW SHALL HAVE A CAUSE OF  ACTION  AGAINST
 AN  INDIVIDUAL  WHO  DISSEMINATED OR PUBLISHED, OR THREATENED TO DISSEM-
 INATE OR PUBLISH, SUCH STILL OR VIDEO IMAGE WITHOUT THE CONSENT  OF  THE
 PERSON DEPICTED IN THE IMAGE.
   2.  IN  ANY  ACTION  COMMENCED  PURSUANT  TO  SUBDIVISION  ONE OF THIS
 SECTION, THE FINDER OF FACT, IN ITS  DISCRETION,  MAY  AWARD  INJUNCTIVE
 RELIEF,  PUNITIVE  DAMAGES,  COMPENSATORY  DAMAGES  AND REASONABLE COURT
 COSTS AND ATTORNEY'S FEES.
   3. THIS SECTION SHALL NOT APPLY TO THE FOLLOWING:
   A. THE REPORTING OF UNLAWFUL CONDUCT;
   B. THE DISSEMINATION OR PUBLICATION OF AN IMAGE MADE DURING LAWFUL AND
 COMMON PRACTICES OF LAW ENFORCEMENT, LEGAL PROCEEDINGS OR MEDICAL TREAT-
 MENT;
   C. IMAGES INVOLVING ACTIVITIES IN A PUBLIC SETTING OR ACTIVITIES IN  A
 COMMERCIAL SETTING IN WHICH LEGAL ACTIVITIES ARE BEING CONDUCTED; OR
   D.  THE DISSEMINATION OR PUBLICATION OF AN IMAGE MADE FOR A LEGITIMATE
 PUBLIC PURPOSE.
   4. ANY PERSON DEPICTED IN A STILL OR VIDEO IMAGE WHICH WAS  UNLAWFULLY
 DISSEMINATED  AS  PROVIDED  IN  SECTION  250.71, 250.72 OR 250.73 OF THE
 PENAL LAW MAY MAINTAIN AN ACTION OR SPECIAL PROCEEDING FOR A COURT ORDER
 TO REQUIRE ANY WEBSITE THAT IS SUBJECT TO  PERSONAL  JURISDICTION  UNDER
 SUBDIVISION  FIVE  OF  THIS  SECTION TO PERMANENTLY REMOVE SUCH STILL OR
 VIDEO IMAGE; ANY SUCH COURT ORDER GRANTED PURSUANT TO  THIS  SUBDIVISION
 MAY  DIRECT  REMOVAL  ONLY  AS TO IMAGES THAT ARE REASONABLY WITHIN SUCH
 WEBSITE'S CONTROL.
   5. ANY WEBSITE THAT HOSTS OR TRANSMITS A STILL OR VIDEO  IMAGE,  VIEW-
 ABLE  IN  THIS  STATE,  WHICH WAS UNLAWFULLY DISSEMINATED AS PROVIDED IN
 SECTION 250.71, 250.72 OR 250.73 OF THE PENAL LAW  AND  WHICH  IMAGE  IS
 HOSTED  OR TRANSMITTED WITHOUT THE CONSENT OF THE PERSON DEPICTED IN THE
 IMAGE, SHALL BE SUBJECT TO PERSONAL JURISDICTION IN A  CIVIL  ACTION  IN
 THIS  STATE  TO  THE  MAXIMUM  EXTENT  PERMITTED UNDER THE UNITED STATES
 CONSTITUTION AND FEDERAL LAW.
   6. A CAUSE OF ACTION OR SPECIAL PROCEEDING UNDER THIS SECTION SHALL BE
 COMMENCED THE LATER OF EITHER:
   A. THREE YEARS AFTER THE DISSEMINATION OR PUBLICATION OF AN IMAGE; OR
   B. ONE YEAR FROM THE DATE A PERSON  DISCOVERS,  OR  REASONABLY  SHOULD
 HAVE DISCOVERED, THE DISSEMINATION OR PUBLICATION OF SUCH IMAGE.
   7. NOTHING HEREIN SHALL BE READ TO REQUIRE A PRIOR CRIMINAL COMPLAINT,
 PROSECUTION  OR  CONVICTION  TO  ESTABLISH  THE ELEMENTS OF THE CAUSE OF
 ACTION PROVIDED FOR BY THIS SECTION.

 A. 11093                            4
 
   8. THE PROVISIONS OF THIS SECTION ARE IN ADDITION TO,  BUT  SHALL  NOT
 SUPERSEDE, ANY OTHER RIGHTS OR REMEDIES AVAILABLE IN LAW OR EQUITY.
   9.  IF  ANY PROVISION OF THIS SECTION OR ITS APPLICATION TO ANY PERSON
 OR CIRCUMSTANCE IS HELD INVALID, THE INVALIDITY SHALL NOT  AFFECT  OTHER
 PROVISIONS  OR  APPLICATIONS  OF  THIS SECTION WHICH CAN BE GIVEN EFFECT
 WITHOUT THE INVALID PROVISION  OR  APPLICATION,  AND  TO  THIS  END  THE
 PROVISIONS OF THIS SECTION ARE SEVERABLE.
   10.  NOTHING  IN  THIS  SECTION  SHALL  BE  CONSTRUED  TO LIMIT, OR TO
 ENLARGE, THE PROTECTIONS THAT 47 U.S.C. § 230 CONFERS ON AN  INTERACTIVE
 COMPUTER  SERVICE  FOR  CONTENT  PROVIDED BY ANOTHER INFORMATION CONTENT
 PROVIDER, AS SUCH TERMS ARE DEFINED IN 47 U.S.C. § 230.
   § 3. This act shall take effect on the sixtieth  day  after  it  shall
 have become a law.