NY State Senate Bill S1719C

Archive: Last Bill Status Via A5981 - Signed by Governor

Introduced
In Committee
On Floor Calendar
- Passed Senate
- Passed Assembly
Delivered to Governor
Signed by Governor

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Actions

view actions (15)

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jul 23, 2019	signed chap.109
Jul 22, 2019	delivered to governor
Feb 28, 2019	returned to assembly passed senate 3rd reading cal.61 substituted for s1719c
Feb 28, 2019	substituted by a5981
Feb 26, 2019	amended on third reading 1719c
Feb 05, 2019	amended on third reading 1719b
Feb 04, 2019	advanced to third reading
Jan 29, 2019	2nd report cal.
Jan 28, 2019	1st report cal.61
Jan 24, 2019	print number 1719a
Jan 24, 2019	amend and recommit to codes
Jan 15, 2019	referred to codes

Votes

view votes

Feb 28, 2019 - floor Vote

A5981

floor

Aye

Nay

Absent

Excused

Abstained

Jan 29, 2019 - Codes committee Vote

S1719A

committee

Aye

Nay

Aye with Reservations

Absent

Excused

Abstained

Bill Amendments

Original

C (Active)

Original

C (Active)

Co-Sponsors

S1719 - Details

See Assembly Version of this Bill:: A5981
Law Section:: Penal Law
Laws Affected:: Add §245.15, Pen L; amd §530.11, CP L; amd §812, Fam Ct Act; add §52-b, Civ Rts L

S1719 - Summary

Establishes the crime of unlawful dissemination or publication of an intimate image and creates a private right of action for such crime.

S1719 - Sponsor Memo

 
BILL NUMBER: S1719

SPONSOR: MARTINEZ
 
TITLE OF BILL:

An act to amend the penal law, the criminal procedure law, the family
court act and the civil rights law, in relation to establishing the
crime of unlawful dissemination or publication of an intimate image

 
PURPOSE OR GENERAL IDEA OF BILL:

Establishes the crime of unlawful dissemination or publication of an
intimate image

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 adds a new section, 245.15 to the Penal Law, which provides
that a person is guilty of unlawful dissemination or publication of an
intimate image when with intent to cause material harm to the emotional,
financial or physical welfare of another person, he or she intentionally
disseminates or publishes a still or video image of such other person,

who is identifiable from the still or video image itself or from infor-
mation displayed in connection with the still or video image, without
such person's consent.

Additionally, the dissemination must depict an unclothed or exposed
intimate part of such other person; or such other person engaging in
sexual conduct with another person; and such still or video image was
taken under circumstances when the person depicted had a reasonable
expectation of privacy and the actor knew or reasonably should have
known the person depicted intended for the still or video image to
remain private indefinitely, regardless of whether the actor was present
when the still or video image was taken.

Unlawful dissemination or publication of an intimate image is a class A
misdemeanor.

Section 2 provides definitions of "intimate part," "disseminate," and
"publish."

Section 3 provides exceptions for the reporting of unlawful conduct,
dissemination or publication of an intimate image made during lawful and
common practices of law enforcement, legal proceedings or medical treat-
ment, images involving voluntary exposure in a commercial setting,
dissemination or publication for a legitimate public purpose, and
providers of an interactive computer service for images provided by
another person.

Subdivision 1 of Section 530.11 of the Criminal Procedure Law and Subdi-
vision 1 of Section 812 of the Family Court Act are amended to provide
concurrent jurisdiction to the family court and criminal courts over any
proceeding concerning acts of unlawful dissemination or publication of
an intimate image.

Section 52-B is also added to the Civil Rights Law to allow for a
private right of action for the unlawful dissemination or publication of
an intimate image.


Section 1 - Regardless of whether or not the original still or video
image was consensually obtained, a person depicted shall have a cause of
action against an individual who, for the purpose of harassing, annoying
or alarming such person, disseminated or published, or threatened to
disseminate or publish, such still or video image, where such image was
taken when such person had a reasonable expectation of privacy, and it
depicts an unclothed or exposed intimate part of such person, or such
person engaging in sexual conduct with another person, and it was
disseminated or published, or threatened to disseminated or publish,
without the consent of such person.

Any website or internet service provider that hosts or transmits a still
or video image, viewable in this state, taken under circumstances where
the person depicted had a reasonable expectation of privacy, which
depicts an unclothed or exposed intimate part of a resident of this
state, or a resident of this state engaging in sexual conduct with
another person and which reveals an unclothed or exposed intimate part,
and such still or video image is hosted or transmitted without the
consent of such resident of this state, shall be subject to personal
jurisdiction in a civil action in this state to the maximum extent
permitted.

Section 2 - In any action commenced, the finder of fact may award
injunctive relief, exemplary damages, compensatory damages and reason-
able court costs and attorney's fees.

Section 3 provides exceptions for the reporting of unlawful conduct,
dissemination or publication of an intimate image made during lawful and
common practices of law enforcement, legal proceedings or medical treat-
ment, images involving voluntary exposure in a commercial setting,
dissemination or publication for a legitimate public purpose, or provid-
ers of an interactive computer service for images provided by another
person.

Section 4 provides for an action or special proceeding for a court order
to require any website to permanently remove such still or video image.

Section 5 - Any website that hosts or transmits a still or video image,
taken under circumstances where the person depicted had a reasonable
expectation of privacy, which depicts an unclothed or exposed intimate
part, or a resident of New York engaging in sexual conduct, and such
still or video image is hosted or transmitted without the consent of
such resident, shall be subject to personal jurisdiction in a civil
action to the maximum extent permitted.

Section 6 - A cause of action or special proceeding shall be commenced
the later of either three years after the dissemination or publication
of an image, or one year from the date a person discovers the dissem-
ination or publication of such image.

Section 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.

Section 8 - The provisions of this section are in addition to, but shall
not supersede, any other rights or remedies available in law or equity.


Section 9 - If any provision of this section is held invalid, the inva-
lidity shall not affect other provisions of this section.

 
JUSTIFICATION:

In an era of increased text messaging, social networking, and emailing,
people in intimate relationships sometimes share pictures with each
other, some of which may be sexually explicit in nature. However, recip-
ients of these images do not always keep the images within the confines
of an intimate relationship, and have the ability to widely disseminate
the photos on the Internet.

The unlawful dissemination and publication of such intimate images, also
known as "revenge porn" is often provided to Internet websites, and
features photos sometimes accompanied by disparaging descriptions and
identifying details, such as where the victims live and work, as well as
links to their social network pages.

Posting these photographs online is damaging to the reputations of the
victims. These photographs have extensive negative effects, including
destroying future intimate relationships and educational and employment
opportunities. Victims are routinely threatened with sexual assault,
stalked, harassed, or fired from jobs.

Criminalization is preferable to civil suits by victims because civil
suits do not deter those who upload or disclose new images after a civil
suit has ended. Furthermore, a lengthy trial is emotionally exhausting
and prohibitively expensive. Moreover, the websites that distribute
nonconsensual pornography are given broad immunity for civil liability
under federal law through the Communications Decency Act. Therefore,
criminalizing dissemination and publication of these photos may prevent
websites from benefiting from the harmful images.

However, because New York relies on common law to pursue a civil case,
including the torts of harassment and intentional infliction of
emotional distress, a civil suit is often difficult to pursue and win.
As such, this legislation adds a private right of action for unlawful
dissemination and publication images that would provide recourse to
victims. The private right of action is designed to work in conjunction
with the criminal law, and does not require that a criminal conviction
or charge be obtained in order to proceed. The victim will have a choice
whether to pursue a criminal or civil case, or both.

 
PRIOR LEGISLATIVE HISTORY:

2018: S.9019-A/A.1 1188-A - Passed Assembly.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:  This act shall take effect on the sixtieth day after
it shall have become a law.

S1719 - Bill Text download pdf


                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1719

                       2019-2020 Regular Sessions

                            I N  S E N A T E

                            January 15, 2019
                               ___________

Introduced  by  Sens. MARTINEZ, BOYLE -- read twice and ordered printed,
  and when printed to be committed to the Committee on Codes

AN ACT to amend the penal law, the criminal procedure  law,  the  family
  court  act  and  the civil rights law, in relation to establishing the
  crime of unlawful dissemination or publication of an intimate image

  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 a new section 245.15 to
read as follows:
§ 245.15 UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE.
  1. A PERSON IS GUILTY OF UNLAWFUL DISSEMINATION OR PUBLICATION  OF  AN
INTIMATE IMAGE WHEN:
  (A)  WITH INTENT TO CAUSE MATERIAL HARM TO THE EMOTIONAL, FINANCIAL OR
PHYSICAL WELFARE OF ANOTHER PERSON, HE OR SHE INTENTIONALLY DISSEMINATES
OR PUBLISHES A STILL OR VIDEO IMAGE OF SUCH OTHER PERSON, WHO  IS  IDEN-
TIFIABLE  FROM  THE  STILL  OR  VIDEO  IMAGE  ITSELF OR FROM INFORMATION
DISPLAYED IN CONNECTION WITH THE STILL  OR  VIDEO  IMAGE,  WITHOUT  SUCH
OTHER PERSON'S CONSENT, WHICH DEPICTS:
  (I) AN UNCLOTHED OR EXPOSED INTIMATE PART OF SUCH OTHER PERSON; OR
  (II) SUCH OTHER PERSON ENGAGING IN SEXUAL CONDUCT AS DEFINED IN SUBDI-
VISION TEN OF SECTION 130.00 OF THIS CHAPTER WITH ANOTHER PERSON; AND
  (B)  SUCH  STILL OR VIDEO IMAGE WAS TAKEN UNDER CIRCUMSTANCES WHEN THE
PERSON DEPICTED HAD A REASONABLE EXPECTATION OF PRIVACY  AND  THE  ACTOR
KNEW  OR  REASONABLY  SHOULD HAVE KNOWN THE PERSON DEPICTED INTENDED FOR
THE STILL OR VIDEO IMAGE TO REMAIN PRIVATE INDEFINITELY,  REGARDLESS  OF
WHETHER THE ACTOR WAS PRESENT WHEN THE STILL OR VIDEO IMAGE WAS TAKEN.
  2.  FOR PURPOSES OF THIS SECTION "INTIMATE PART" MEANS THE NAKED GENI-
TALS, PUBLIC AREA, ANUS OR FEMALE NIPPLE OF THE PERSON.
  2-A. FOR PURPOSES OF THIS SECTION "DISSEMINATE"  AND  "PUBLISH"  SHALL
HAVE THE SAME MEANING AS DEFINED IN SECTION 250.40 OF THIS TITLE.
  3. THIS SECTION SHALL NOT APPLY TO THE FOLLOWING:

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

                                                           LBD06276-02-9

S. 1719                             2

  (A) THE REPORTING OF UNLAWFUL CONDUCT;
  (B)  DISSEMINATION  OR  PUBLICATION  OF  AN INTIMATE IMAGE MADE DURING
LAWFUL AND COMMON PRACTICES OF LAW  ENFORCEMENT,  LEGAL  PROCEEDINGS  OR
MEDICAL TREATMENT;
  (C) IMAGES INVOLVING VOLUNTARY EXPOSURE IN A COMMERCIAL SETTING;
  (D)  DISSEMINATION  OR  PUBLICATION  OF  AN  INTIMATE IMAGE MADE FOR A
LEGITIMATE PUBLIC PURPOSE;
  (E) PROVIDERS OF AN INTERACTIVE COMPUTER SERVICE FOR  IMAGES  PROVIDED
BY  ANOTHER  PERSON.    FOR  PURPOSES  OF THIS SUBDIVISION, "INTERACTIVE
COMPUTER SERVICE" SHALL MEAN: ANY INFORMATION SERVICE, SYSTEM OR  ACCESS
SOFTWARE  PROVIDER  THAT PROVIDES OR ENABLES COMPUTER ACCESS BY MULTIPLE
USERS TO A COMPUTER SERVER, INCLUDING SPECIFICALLY A SERVICE  OR  SYSTEM
THAT  PROVIDES  ACCESS  TO  THE  INTERNET  AND  SUCH SYSTEMS OPERATED OR
SERVICES OFFERED BY LIBRARIES OR EDUCATIONAL INSTITUTIONS.
  UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE IS A  CLASS
A MISDEMEANOR.
  §  2.  The opening paragraph of subdivision 1 of section 530.11 of the
criminal procedure law, as amended by section 4 of part NN of chapter 55
of the laws of 2018, is amended to read as follows:
  The family court and the criminal courts shall have concurrent  juris-
diction  over  any  proceeding  concerning  acts  which would constitute
disorderly conduct, UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE
IMAGE, harassment in the first degree, harassment in the second  degree,
aggravated  harassment in the second degree, sexual misconduct, forcible
touching, sexual abuse in the third degree, sexual abuse in  the  second
degree  as  set  forth in subdivision one of section 130.60 of the penal
law, stalking in the first degree, stalking in the second degree, stalk-
ing in the  third  degree,  stalking  in  the  fourth  degree,  criminal
mischief,  menacing  in the second degree, menacing in the third degree,
reckless endangerment, strangulation in the first degree,  strangulation
in  the second degree, criminal obstruction of breathing or blood circu-
lation, assault in the second degree, assault in the  third  degree,  an
attempted assault, identity theft in the first degree, identity theft in
the  second degree, identity theft in the third degree, grand larceny in
the fourth degree, grand larceny in the third degree,  coercion  in  the
second  degree  or coercion in the third degree as set forth in subdivi-
sions one, two and three of section 135.60  of  the  penal  law  between
spouses  or  former  spouses,  or  between  parent  and child or between
members of the same family or household except that  if  the  respondent
would not be criminally responsible by reason of age pursuant to section
30.00  of  the  penal  law,  then  the family court shall have exclusive
jurisdiction  over  such  proceeding.  Notwithstanding  a  complainant's
election  to  proceed  in  family court, the criminal court shall not be
divested of jurisdiction to hear a family offense proceeding pursuant to
this  section.  For  purposes  of  this  section,  "disorderly  conduct"
includes disorderly conduct not in a public place.  For purposes of this
section,  "members  of  the  same family or household" with respect to a
proceeding in the criminal courts shall mean the following:
  § 3. The opening paragraph of subdivision 1  of  section  812  of  the
family  court  act,  as amended by section 5 of part NN of chapter 55 of
the laws of 2018, is amended to read as follows:
  The family court and the criminal courts shall have concurrent  juris-
diction  over  any  proceeding  concerning  acts  which would constitute
disorderly conduct, UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE
IMAGE, harassment in the first degree, harassment in the second  degree,
aggravated  harassment in the second degree, sexual misconduct, forcible

S. 1719                             3

touching, sexual abuse in the third degree, sexual abuse in  the  second
degree  as  set  forth in subdivision one of section 130.60 of the penal
law, stalking in the first degree, stalking in the second degree, stalk-
ing  in  the  third  degree,  stalking  in  the  fourth degree, criminal
mischief, menacing in the second degree, menacing in the  third  degree,
reckless endangerment, criminal obstruction of breathing or blood circu-
lation,  strangulation  in the second degree, strangulation in the first
degree, assault in the second degree, assault in the  third  degree,  an
attempted assault, identity theft in the first degree, identity theft in
the  second degree, identity theft in the third degree, grand larceny in
the fourth degree, grand larceny in the third degree,  coercion  in  the
second  degree  or coercion in the third degree as set forth in subdivi-
sions one, two and three of section 135.60  of  the  penal  law  between
spouses  or  former  spouses,  or  between  parent  and child or between
members of the same family or household except that  if  the  respondent
would not be criminally responsible by reason of age pursuant to section
30.00  of  the  penal  law,  then  the family court shall have exclusive
jurisdiction  over  such  proceeding.  Notwithstanding  a  complainant's
election  to  proceed  in  family court, the criminal court shall not be
divested of jurisdiction to hear a family offense proceeding pursuant to
this section. In any proceeding pursuant to this article, a court  shall
not  deny  an  order of protection, or dismiss a petition, solely on the
basis that the acts or events alleged are not relatively contemporaneous
with the date of the petition, the conclusion of the fact-finding or the
conclusion of the dispositional hearing. For purposes of  this  article,
"disorderly  conduct" includes disorderly conduct not in a public place.
For purposes of this article, "members of the same family or  household"
shall mean the following:
  §  4.  The civil rights law is amended by adding a new section 52-b to
read as follows:
  § 52-B. PRIVATE RIGHT OF ACTION FOR UNLAWFUL DISSEMINATION OR PUBLICA-
TION OF AN INTIMATE IMAGE. 1.  ANY PERSON DEPICTED IN A STILL  OR  VIDEO
IMAGE,  REGARDLESS  OF  WHETHER OR NOT THE ORIGINAL STILL OR VIDEO IMAGE
WAS CONSENSUALLY OBTAINED, SHALL HAVE A CAUSE OF ACTION AGAINST AN INDI-
VIDUAL WHO, FOR THE PURPOSE OF  HARASSING,  ANNOYING  OR  ALARMING  SUCH
PERSON,  DISSEMINATED  OR  PUBLISHED,  OR  THREATENED  TO DISSEMINATE OR
PUBLISH, SUCH STILL OR VIDEO IMAGE, WHERE SUCH IMAGE:
  A. WAS TAKEN WHEN SUCH PERSON HAD A REASONABLE EXPECTATION OF PRIVACY;
AND
  B. DEPICTS (I) AN UNCLOTHED OR EXPOSED INTIMATE PART OF  SUCH  PERSON;
OR  (II)  SUCH PERSON ENGAGING IN SEXUAL CONDUCT, AS DEFINED IN SUBDIVI-
SION TEN OF SECTION 130.00 OF THE PENAL LAW, WITH ANOTHER PERSON; AND
  C. WAS DISSEMINATED OR PUBLISHED, OR THREATENED TO BE DISSEMINATED  OR
PUBLISHED, WITHOUT THE CONSENT OF SUCH PERSON.
  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. DISSEMINATION OR PUBLICATION OF AN INTIMATE STILL  OR  VIDEO  IMAGE
MADE  DURING  LAWFUL  AND  COMMON  PRACTICES  OF  LAW ENFORCEMENT, LEGAL
PROCEEDINGS OR MEDICAL TREATMENT;
  C. IMAGES INVOLVING VOLUNTARY EXPOSURE IN A COMMERCIAL SETTING;
  D. DISSEMINATION OR PUBLICATION OF AN INTIMATE STILL  OR  VIDEO  IMAGE
MADE FOR A LEGITIMATE PUBLIC PURPOSE; OR

S. 1719                             4

  E. PROVIDERS OF AN INTERACTIVE COMPUTER SERVICE FOR IMAGES PROVIDED BY
ANOTHER  PERSON.  FOR  PURPOSES OF THIS PARAGRAPH, "INTERACTIVE COMPUTER
SERVICE" SHALL MEAN ANY INFORMATION SERVICE, SYSTEM OR  ACCESS  SOFTWARE
PROVIDER THAT ENABLES COMPUTER ACCESS BY MULTIPLE USERS TO THAT COMPUTER
SERVER,  INCLUDING  SPECIFICALLY,  A SERVICE THAT PROVIDES ACCESS TO THE
INTERNET AND SUCH SYSTEMS OPERATED OR SERVICES OFFERED BY  LIBRARIES  OR
EDUCATIONAL INSTITUTIONS.
  4.  ANY  PERSON  DEPICTED  IN  A  STILL OR VIDEO IMAGE THAT DEPICTS AN
UNCLOTHED OR EXPOSED INTIMATE PART OF SUCH PERSON, OR SUCH PERSON ENGAG-
ING IN SEXUAL CONDUCT AS DEFINED IN SUBDIVISION TEN OF SECTION 130.00 OF
THE PENAL LAW WITH ANOTHER PERSON, WHICH IS  DISSEMINATED  OR  PUBLISHED
WITHOUT  THE  CONSENT OF SUCH PERSON AND WHERE SUCH PERSON HAD A REASON-
ABLE EXPECTATION OF PRIVACY, MAY MAINTAIN AN ACTION OR SPECIAL  PROCEED-
ING 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. A. ANY WEBSITE THAT HOSTS OR TRANSMITS  A  STILL  OR  VIDEO  IMAGE,
VIEWABLE  IN  THIS  STATE,  TAKEN  UNDER  CIRCUMSTANCES WHERE THE PERSON
DEPICTED HAD A REASONABLE EXPECTATION OF PRIVACY, WHICH DEPICTS:
  (I) AN UNCLOTHED OR EXPOSED  INTIMATE  PART,  AS  DEFINED  IN  SECTION
245.15 OF THE PENAL LAW, OF A RESIDENT OF THIS STATE; OR
  (II) A RESIDENT OF THIS STATE ENGAGING IN SEXUAL CONDUCT AS DEFINED IN
SUBDIVISION  TEN OF SECTION 130.00 OF THE PENAL LAW WITH ANOTHER PERSON;
AND
  B. SUCH STILL OR VIDEO IMAGE IS  HOSTED  OR  TRANSMITTED  WITHOUT  THE
CONSENT  OF  SUCH  RESIDENT  OF THIS STATE, 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.
  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.
  § 5. This act shall take effect on the sixtieth  day  after  it  shall
have become a law.

Co-Sponsors

S1719A - Details

See Assembly Version of this Bill:: A5981
Law Section:: Penal Law
Laws Affected:: Add §245.15, Pen L; amd §530.11, CP L; amd §812, Fam Ct Act; add §52-b, Civ Rts L

S1719A - Summary

Establishes the crime of unlawful dissemination or publication of an intimate image and creates a private right of action for such crime.

S1719A - Sponsor Memo

 
BILL NUMBER: S1719A

SPONSOR: MARTINEZ
 
TITLE OF BILL:  An act to amend the penal law, the criminal procedure
law, the family court act and the civil rights law, in relation to
establishing the crime of unlawful dissemination or publication of an
intimate image

 
PURPOSE OR GENERAL IDEA OF BILL:

Establishes the crime of unlawful dissemination or publication of an
intimate image

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 adds a new section, 245.15 to the Penal Law, which provides
that a person is guilty of unlawful dissemination or publication of an
intimate image when with intent to cause material harm to the emotional,
financial or physical welfare of another person, he or she intentionally
disseminates or publishes a still or video image of such other person,
who is identifiable from the still or video image itself or from infor-

mation displayed in connection with the still or video image, without
such person's consent.

Additionally, the dissemination must depict an unclothed or exposed
intimate part of such other person; or such other person engaging in
sexual conduct with another person; and such still or video image was
taken under circumstances when the person depicted had a reasonable
expectation of privacy and the actor knew or reasonably should have
known the person depicted intended for the still or video image to
remain private indefinitely, regardless of whether the actor was present
when the still or video image was taken.

Unlawful dissemination or publication of an intimate image is a class A
misdemeanor.

Section 2 provides definitions of "intimate part," "disseminate," and
"publish."

Section 3 provides exceptions for the reporting of unlawful conduct,
dissemination or publication of an intimate image made during lawful and
common practices of law enforcement, legal proceedings or medical treat-
ment, images involving voluntary exposure in a commercial setting,
dissemination or publication for a legitimate public purpose, and
providers of an interactive computer service for images provided by
another person.

Subdivision 1 of Section 530.11 of the Criminal Procedure Law and Subdi-
vision 1 of Section 812 of the Family Court Act are amended to provide
concurrent jurisdiction to the family court and criminal courts over any
proceeding concerning acts of unlawful dissemination or publication of
an intimate image.

Section 52-B is also added to the Civil Rights Law to allow for a
private right of action for the unlawful dissemination or publication of
an intimate image.

Section 1 - Regardless of whether or not the original still or video
image was consensually obtained, a person depicted shall have a cause of
action against an individual who, for the purpose of harassing, annoying
or alarming such person, disseminated or published, or threatened to
disseminate or publish, such still or video image, where such image was
taken when such person had a reasonable expectation of privacy, and it
depicts an unclothed or exposed intimate part of such person, or such
person engaging in sexual conduct with another person, and it was
disseminated or published, or threatened to disseminated or publish,
without the consent of such person.

Any website or internet service provider that hosts or transmits a still
or video image, viewable in this state, taken under circumstances where
the person depicted had a reasonable expectation of privacy, which
depicts an unclothed or exposed intimate part of a resident of this
state, or a resident of this state engaging in sexual conduct with
another person and which reveals an unclothed or exposed intimate part,
and such still or video image is hosted or transmitted without the
consent of such resident of this state, shall be subject to personal
jurisdiction in a civil action in this state to the maximum extent
permitted.

Section 2 - In any action commenced, the finder of fact may award
injunctive relief, exemplary damages, compensatory damages and reason-
able court costs and attorney's fees.

Section 3 provides exceptions for the reporting of unlawful conduct,
dissemination or publication of an intimate image made during lawful and
common practices of law enforcement, legal proceedings or medical treat-
ment, images involving voluntary exposure in a commercial setting,
dissemination or publication for a legitimate public purpose, or provid-
ers of an interactive computer service for images provided by another
person.

Section 4 provides for an action or special proceeding for a court order
to require any website to permanently remove such still or video image.

Section 5 - Any website that hosts or transmits a still or video image,
taken under circumstances where the person depicted had a reasonable
expectation of privacy, which depicts an unclothed or exposed intimate
part, or a resident of New York engaging in sexual conduct, and such
still or video image is hosted or transmitted without the consent of
such resident, shall be subject to personal jurisdiction in a civil
action to the maximum extent permitted.

Section 6 - A cause of action or special proceeding shall be commenced
the later of either three years after the dissemination or publication
of an image, or one year from the date a person discovers the dissem-
ination or publication of such image.

Section 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.

Section 8 - The provisions of this section are in addition to, but shall
not supersede, any other rights or remedies available in law or equity.

Section 9 - If any provision of this section is held invalid, the inva-
lidity shall not affect other provisions of this section.

 
JUSTIFICATION:

In an era of increased text messaging, social networking, and emailing,
people in intimate relationships sometimes share pictures with each
other, some of which may be sexually explicit in nature.  However,
recipients of these images do not always keep the images within the
confines of an intimate relationship, and have the ability to widely
disseminate the photos on the Internet.

The unlawful dissemination and publication of such intimate images, also
known as "revenge porn" is often provided to Internet websites, and
features photos sometimes accompanied by disparaging descriptions and
identifying details, such as where the victims live and work, as well as
links to their social network pages.

Posting these photographs online is damaging to the reputations of the
victims. These photographs have extensive negative effects, including
destroying future intimate relationships and educational and employment
opportunities. Victims are routinely threatened with sexual assault,
stalked, harassed, or fired from jobs.

Criminalization is preferable to civil suits by victims because civil
suits do not deter those who upload or disclose new images after a civil
suit has ended. Furthermore, a lengthy trial is emotionally exhausting
and prohibitively expensive. Moreover, the websites that distribute
nonconsensual pornography are given broad immunity for civil liability
under federal law through the Communications Decency Act. Therefore,
criminalizing dissemination and publication of these photos may prevent
websites from benefiting from the harmful images.

However, because New York relies on common law to pursue a civil case,
including the torts of harassment and intentional infliction of
emotional distress, a civil suit is often difficult to pursue and win.
As such, this legislation adds a private right of action for unlawful
dissemination and publication images that would provide recourse to
victims. The private right of action is designed to work in conjunction
with the criminal law, and does not require that a criminal conviction
or charge be obtained in order to proceed. The victim will have a choice
whether to pursue a criminal or civil case, or both.

 
PRIOR LEGISLATIVE HISTORY:

2018: S.9019-A/A.1 1188-A - Passed Assembly.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect on the sixtieth day after it shall have
become a law.

S1719A - Bill Text download pdf


                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 1719--A

                       2019-2020 Regular Sessions

                            I N  S E N A T E

                            January 15, 2019
                               ___________

Introduced  by  Sens. MARTINEZ, BOYLE -- read twice and ordered printed,
  and when printed to be committed to the Committee on Codes --  commit-
  tee  discharged, bill amended, ordered reprinted as amended and recom-
  mitted to said committee

AN ACT to amend the penal law, the criminal procedure  law,  the  family
  court  act  and  the civil rights law, in relation to establishing the
  crime of unlawful dissemination or publication of an intimate image

  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 a new section 245.15 to
read as follows:
§ 245.15 UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE.
  1. A PERSON IS GUILTY OF UNLAWFUL DISSEMINATION OR PUBLICATION  OF  AN
INTIMATE IMAGE WHEN:
  (A)  WITH INTENT TO CAUSE MATERIAL HARM TO THE EMOTIONAL, FINANCIAL OR
PHYSICAL WELFARE OF ANOTHER PERSON, HE OR SHE INTENTIONALLY DISSEMINATES
OR PUBLISHES A STILL OR VIDEO IMAGE OF SUCH OTHER PERSON, WHO  IS  IDEN-
TIFIABLE  FROM  THE  STILL  OR  VIDEO  IMAGE  ITSELF OR FROM INFORMATION
DISPLAYED IN CONNECTION WITH THE STILL  OR  VIDEO  IMAGE,  WITHOUT  SUCH
OTHER PERSON'S CONSENT, WHICH DEPICTS:
  (I) AN UNCLOTHED OR EXPOSED INTIMATE PART OF SUCH OTHER PERSON; OR
  (II) SUCH OTHER PERSON ENGAGING IN SEXUAL CONDUCT AS DEFINED IN SUBDI-
VISION TEN OF SECTION 130.00 OF THIS CHAPTER WITH ANOTHER PERSON; AND
  (B)  SUCH  STILL OR VIDEO IMAGE WAS TAKEN UNDER CIRCUMSTANCES WHEN THE
PERSON DEPICTED HAD A REASONABLE EXPECTATION OF PRIVACY  AND  THE  ACTOR
KNEW  OR  REASONABLY  SHOULD HAVE KNOWN THE PERSON DEPICTED INTENDED FOR
THE STILL OR VIDEO IMAGE TO REMAIN PRIVATE INDEFINITELY,  REGARDLESS  OF
WHETHER THE ACTOR WAS PRESENT WHEN THE STILL OR VIDEO IMAGE WAS TAKEN.
  2.  FOR PURPOSES OF THIS SECTION "INTIMATE PART" MEANS THE NAKED GENI-
TALS, PUBIC AREA, ANUS OR FEMALE NIPPLE OF THE PERSON.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06276-03-9

S. 1719--A                          2

  2-A. FOR PURPOSES OF THIS SECTION "DISSEMINATE"  AND  "PUBLISH"  SHALL
HAVE THE SAME MEANING AS DEFINED IN SECTION 250.40 OF THIS TITLE.
  3. THIS SECTION SHALL NOT APPLY TO THE FOLLOWING:
  (A) THE REPORTING OF UNLAWFUL CONDUCT;
  (B)  DISSEMINATION  OR  PUBLICATION  OF  AN INTIMATE IMAGE MADE DURING
LAWFUL AND COMMON PRACTICES OF LAW  ENFORCEMENT,  LEGAL  PROCEEDINGS  OR
MEDICAL TREATMENT;
  (C) IMAGES INVOLVING VOLUNTARY EXPOSURE IN A COMMERCIAL SETTING;
  (D)  DISSEMINATION  OR  PUBLICATION  OF  AN  INTIMATE IMAGE MADE FOR A
LEGITIMATE PUBLIC PURPOSE;
  (E) PROVIDERS OF AN INTERACTIVE COMPUTER SERVICE FOR  IMAGES  PROVIDED
BY  ANOTHER  PERSON.    FOR  PURPOSES  OF THIS SUBDIVISION, "INTERACTIVE
COMPUTER SERVICE" SHALL MEAN: ANY INFORMATION SERVICE, SYSTEM OR  ACCESS
SOFTWARE  PROVIDER  THAT PROVIDES OR ENABLES COMPUTER ACCESS BY MULTIPLE
USERS TO A COMPUTER SERVER, INCLUDING SPECIFICALLY A SERVICE  OR  SYSTEM
THAT  PROVIDES  ACCESS  TO  THE  INTERNET  AND  SUCH SYSTEMS OPERATED OR
SERVICES OFFERED BY LIBRARIES OR EDUCATIONAL INSTITUTIONS.
  UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE IS A  CLASS
A MISDEMEANOR.
  §  2.  The opening paragraph of subdivision 1 of section 530.11 of the
criminal procedure law, as amended by section 4 of part NN of chapter 55
of the laws of 2018, is amended to read as follows:
  The family court and the criminal courts shall have concurrent  juris-
diction  over  any  proceeding  concerning  acts  which would constitute
disorderly conduct, UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE
IMAGE, harassment in the first degree, harassment in the second  degree,
aggravated  harassment in the second degree, sexual misconduct, forcible
touching, sexual abuse in the third degree, sexual abuse in  the  second
degree  as  set  forth in subdivision one of section 130.60 of the penal
law, stalking in the first degree, stalking in the second degree, stalk-
ing in the  third  degree,  stalking  in  the  fourth  degree,  criminal
mischief,  menacing  in the second degree, menacing in the third degree,
reckless endangerment, strangulation in the first degree,  strangulation
in  the second degree, criminal obstruction of breathing or blood circu-
lation, assault in the second degree, assault in the  third  degree,  an
attempted assault, identity theft in the first degree, identity theft in
the  second degree, identity theft in the third degree, grand larceny in
the fourth degree, grand larceny in the third degree,  coercion  in  the
second  degree  or coercion in the third degree as set forth in subdivi-
sions one, two and three of section 135.60  of  the  penal  law  between
spouses  or  former  spouses,  or  between  parent  and child or between
members of the same family or household except that  if  the  respondent
would not be criminally responsible by reason of age pursuant to section
30.00  of  the  penal  law,  then  the family court shall have exclusive
jurisdiction  over  such  proceeding.  Notwithstanding  a  complainant's
election  to  proceed  in  family court, the criminal court shall not be
divested of jurisdiction to hear a family offense proceeding pursuant to
this  section.  For  purposes  of  this  section,  "disorderly  conduct"
includes disorderly conduct not in a public place.  For purposes of this
section,  "members  of  the  same family or household" with respect to a
proceeding in the criminal courts shall mean the following:
  § 3. The opening paragraph of subdivision 1  of  section  812  of  the
family  court  act,  as amended by section 5 of part NN of chapter 55 of
the laws of 2018, is amended to read as follows:
  The family court and the criminal courts shall have concurrent  juris-
diction  over  any  proceeding  concerning  acts  which would constitute

S. 1719--A                          3

disorderly conduct, UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE
IMAGE, harassment in the first degree, harassment in the second  degree,
aggravated  harassment in the second degree, sexual misconduct, forcible
touching,  sexual  abuse in the third degree, sexual abuse in the second
degree as set forth in subdivision one of section 130.60  of  the  penal
law, stalking in the first degree, stalking in the second degree, stalk-
ing  in  the  third  degree,  stalking  in  the  fourth degree, criminal
mischief, menacing in the second degree, menacing in the  third  degree,
reckless endangerment, criminal obstruction of breathing or blood circu-
lation,  strangulation  in the second degree, strangulation in the first
degree, assault in the second degree, assault in the  third  degree,  an
attempted assault, identity theft in the first degree, identity theft in
the  second degree, identity theft in the third degree, grand larceny in
the fourth degree, grand larceny in the third degree,  coercion  in  the
second  degree  or coercion in the third degree as set forth in subdivi-
sions one, two and three of section 135.60  of  the  penal  law  between
spouses  or  former  spouses,  or  between  parent  and child or between
members of the same family or household except that  if  the  respondent
would not be criminally responsible by reason of age pursuant to section
30.00  of  the  penal  law,  then  the family court shall have exclusive
jurisdiction  over  such  proceeding.  Notwithstanding  a  complainant's
election  to  proceed  in  family court, the criminal court shall not be
divested of jurisdiction to hear a family offense proceeding pursuant to
this section. In any proceeding pursuant to this article, a court  shall
not  deny  an  order of protection, or dismiss a petition, solely on the
basis that the acts or events alleged are not relatively contemporaneous
with the date of the petition, the conclusion of the fact-finding or the
conclusion of the dispositional hearing. For purposes of  this  article,
"disorderly  conduct" includes disorderly conduct not in a public place.
For purposes of this article, "members of the same family or  household"
shall mean the following:
  §  4.  The civil rights law is amended by adding a new section 52-b to
read as follows:
  § 52-B. PRIVATE RIGHT OF ACTION FOR UNLAWFUL DISSEMINATION OR PUBLICA-
TION OF AN INTIMATE IMAGE. 1.  ANY PERSON DEPICTED IN A STILL  OR  VIDEO
IMAGE,  REGARDLESS  OF  WHETHER OR NOT THE ORIGINAL STILL OR VIDEO IMAGE
WAS CONSENSUALLY OBTAINED, SHALL HAVE A CAUSE OF ACTION AGAINST AN INDI-
VIDUAL WHO, FOR THE PURPOSE OF  HARASSING,  ANNOYING  OR  ALARMING  SUCH
PERSON,  DISSEMINATED  OR  PUBLISHED,  OR  THREATENED  TO DISSEMINATE OR
PUBLISH, SUCH STILL OR VIDEO IMAGE, WHERE SUCH IMAGE:
  A. WAS TAKEN WHEN SUCH PERSON HAD A REASONABLE EXPECTATION OF PRIVACY;
AND
  B. DEPICTS (I) AN UNCLOTHED OR EXPOSED INTIMATE PART OF  SUCH  PERSON;
OR  (II)  SUCH PERSON ENGAGING IN SEXUAL CONDUCT, AS DEFINED IN SUBDIVI-
SION TEN OF SECTION 130.00 OF THE PENAL LAW, WITH ANOTHER PERSON; AND
  C. WAS DISSEMINATED OR PUBLISHED, OR THREATENED TO BE DISSEMINATED  OR
PUBLISHED, WITHOUT THE CONSENT OF SUCH PERSON.
  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. DISSEMINATION OR PUBLICATION OF AN INTIMATE STILL  OR  VIDEO  IMAGE
MADE  DURING  LAWFUL  AND  COMMON  PRACTICES  OF  LAW ENFORCEMENT, LEGAL
PROCEEDINGS OR MEDICAL TREATMENT;

S. 1719--A                          4

  C. IMAGES INVOLVING VOLUNTARY EXPOSURE IN A COMMERCIAL SETTING;
  D.  DISSEMINATION  OR  PUBLICATION OF AN INTIMATE STILL OR VIDEO IMAGE
MADE FOR A LEGITIMATE PUBLIC PURPOSE; OR
  E. PROVIDERS OF AN INTERACTIVE COMPUTER SERVICE FOR IMAGES PROVIDED BY
ANOTHER PERSON. FOR PURPOSES OF THIS  PARAGRAPH,  "INTERACTIVE  COMPUTER
SERVICE"  SHALL  MEAN ANY INFORMATION SERVICE, SYSTEM OR ACCESS SOFTWARE
PROVIDER THAT ENABLES COMPUTER ACCESS BY MULTIPLE USERS TO THAT COMPUTER
SERVER, INCLUDING SPECIFICALLY, A SERVICE THAT PROVIDES  ACCESS  TO  THE
INTERNET  AND  SUCH SYSTEMS OPERATED OR SERVICES OFFERED BY LIBRARIES OR
EDUCATIONAL INSTITUTIONS.
  4. ANY PERSON DEPICTED IN A STILL  OR  VIDEO  IMAGE  THAT  DEPICTS  AN
UNCLOTHED OR EXPOSED INTIMATE PART OF SUCH PERSON, OR SUCH PERSON ENGAG-
ING IN SEXUAL CONDUCT AS DEFINED IN SUBDIVISION TEN OF SECTION 130.00 OF
THE  PENAL  LAW  WITH ANOTHER PERSON, WHICH IS DISSEMINATED OR PUBLISHED
WITHOUT THE CONSENT OF SUCH PERSON AND WHERE SUCH PERSON HAD  A  REASON-
ABLE  EXPECTATION OF PRIVACY, MAY MAINTAIN AN ACTION OR SPECIAL PROCEED-
ING 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.  A.  ANY  WEBSITE  THAT  HOSTS OR TRANSMITS A STILL OR VIDEO IMAGE,
VIEWABLE IN THIS STATE,  TAKEN  UNDER  CIRCUMSTANCES  WHERE  THE  PERSON
DEPICTED HAD A REASONABLE EXPECTATION OF PRIVACY, WHICH DEPICTS:
  (I)  AN  UNCLOTHED  OR  EXPOSED  INTIMATE  PART, AS DEFINED IN SECTION
245.15 OF THE PENAL LAW, OF A RESIDENT OF THIS STATE; OR
  (II) A RESIDENT OF THIS STATE ENGAGING IN SEXUAL CONDUCT AS DEFINED IN
SUBDIVISION TEN OF SECTION 130.00 OF THE PENAL LAW WITH ANOTHER  PERSON;
AND
  B.  SUCH  STILL  OR  VIDEO  IMAGE IS HOSTED OR TRANSMITTED WITHOUT THE
CONSENT OF SUCH RESIDENT OF THIS STATE, 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.
  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.
  §  5.  This  act  shall take effect on the sixtieth day after it shall
have become a law.

Co-Sponsors

S1719B - Details

See Assembly Version of this Bill:: A5981
Law Section:: Penal Law
Laws Affected:: Add §245.15, Pen L; amd §530.11, CP L; amd §812, Fam Ct Act; add §52-b, Civ Rts L

S1719B - Summary

Establishes the crime of unlawful dissemination or publication of an intimate image and creates a private right of action for such crime.

S1719B - Sponsor Memo

 
BILL NUMBER: S1719B

SPONSOR: MARTINEZ
 
TITLE OF BILL:  An act to amend the penal law, the criminal procedure
law, the family court act and the civil rights law, in relation to
establishing the crime of unlawful dissemination or publication of an
intimate image

 
PURPOSE OR GENERAL IDEA OF BILL:

Establishes the crime of unlawful dissemination or publication of an
intimate image

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 adds a new section, 245.15 to the Penal Law, which provides
that a person is guilty of unlawful dissemination or publication of an
intimate image when with intent to cause material harm to the emotional,
financial or physical welfare of another person, he or she intentionally
disseminates or publishes a still or video image of such other person,
who is identifiable from the still or video image itself or from infor-

mation displayed in connection with the still or video image, without
such person's consent.

Additionally, the dissemination must depict an unclothed or exposed
intimate part of such other person; or such other person engaging in
sexual conduct with another person; and such still or video image was
taken under circumstances when the person depicted had a reasonable
expectation of privacy, regardless of whether the actor was present when
the still or video image was taken.

Unlawful dissemination or publication of an intimate image is a class A
misdemeanor.

Section 2 provides definitions of "intimate part," "disseminate," and
"publish."

Section 3 provides exceptions for the reporting of unlawful conduct,
dissemination or publication of an intimate image made during lawful and
common practices of law enforcement, legal proceedings or medical treat-
ment, images involving voluntary exposure in a commercial setting,
dissemination or publication for a legitimate public purpose, and
providers of an interactive computer service for images provided by
another person.

Subdivision 1 of Section 530.11 of the Criminal Procedure Law and Subdi-
vision 1 of Section 812 of the Family Court Act are amended to provide
concurrent jurisdiction to the family court and criminal courts over any
proceeding concerning acts of unlawful dissemination or publication of
an intimate image.

Section 52-B is also added to the Civil Rights Law to allow for a
private right of action for the unlawful dissemination or publication of
an intimate image.

Section 1 - Regardless of whether or not the original still or video
image was consensually obtained, a person depicted shall have a cause of
action against an individual who, for the purpose of harassing, annoying
or alarming such person, disseminated or published, or threatened to
disseminate or publish, such still or video image, where such image was
taken when such person had a reasonable expectation of privacy, and it
depicts an unclothed or exposed intimate part of such person, or such
person engaging in sexual conduct with another person, and it was
disseminated or published, or threatened to disseminated or publish,
without the consent of such person.  any website or internet service
provider that hosts or transmits a still or video image, viewable in
this state, taken under circumstances where the person depicted had a
reasonable expectation of privacy, which depicts an unclothed or exposed
intimate part of a resident of this state, or a resident of this state
engaging in sexual conduct with another person and which reveals an
unclothed or exposed intimate part, and such still or video image is
hosted or transmitted without the consent of such resident of this
state, shall be subject to personal jurisdiction in a civil action in
this state to the maximum extent permitted.

Section 2 - In any action commenced, the finder of fact may award
injunctive relief, exemplary damages, compensatory damages and reason-
able court costs and attorney's fees.

Section 3 provides exceptions for the reporting of unlawful conduct,
dissemination or publication of an intimate image made during lawful and
common practices of law enforcement, legal proceedings or medical treat-
ment, images involving voluntary exposure in a commercial setting,
dissemination or publication for a legitimate public purpose, or provid-
ers of an interactive computer service for images provided by another
person.

Section 4 provides for an action or special proceeding for a court order
to require any website to permanently remove such still or video image.

Section 5 - Any website that hosts or transmits a still or video image,
taken under circumstances where the person depicted had a reasonable
expectation of privacy, which depicts an unclothed or exposed intimate
part, or a resident of New York engaging in sexual conduct, and such
still or video image is hosted or transmitted without the consent of
such resident, shall be subject to personal jurisdiction in a civil
action to the maximum extent permitted.

Section 6 - A cause of action or special proceeding shall be commenced
the later of either three years after the dissemination or publication
of an image, or one year from the date a person discovers the dissem-
ination or publication of such image.

Section 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.

Section 8 - The provisions of this section are in addition to, but shall
not supersede, any other rights or remedies available in law or equity.

Section 9 - If any provision of this section is held invalid, the inva-
lidity shall not affect other provisions of this section.

 
JUSTIFICATION:

In an era of increased text messaging, social networking, and emailing,
people in intimate relationships sometimes share pictures with each
other, some of which may be sexually explicit in nature. However, recip-
ients of these images do not always keep the images within the confines
of an intimate relationship, and have the ability to widely disseminate
the photos on the Internet.

The unlawful dissemination and publication of such intimate images, also
known as "revenge porn" is often provided to Internet websites, and
features photos sometimes accompanied by disparaging descriptions and
identifying details, such as where the victims live and work, as well as
links to their social network pages.

Posting these photographs online is damaging to the reputations of the
victims. These photographs have extensive negative effects, including
destroying future intimate relationships and educational and employment
opportunities. Victims are routinely threatened with sexual assault,
stalked, harassed, or fired from jobs.

Criminalization is preferable to civil suits by victims because civil
suits do not deter those who upload or disclose new images after a civil
suit has ended. Furthermore, a lengthy trial is emotionally exhausting
and prohibitively expensive. Moreover, the websites that distribute
nonconsensual pornography are given broad immunity for civil liability
under federal law through the Communications Decency Act. Therefore,
criminalizing dissemination and publication of these photos may prevent
websites from benefiting from the harmful images.

However, because New York relies on common law to pursue a civil case,
including the torts of harassment and intentional infliction of
emotional distress, a civil suit is often difficult to pursue and win.
As such, this legislation adds a private right of action for unlawful
dissemination and publication images that would provide recourse to
victims. The private right of action is designed to work in conjunction
with the criminal law, and does not require that a criminal conviction
or charge be obtained in order to proceed. The victim will have a choice
whether to pursue a criminal or civil case, or both.

 
PRIOR LEGISLATIVE HISTORY:

2018: S.9019-A/A.11188-A - Passed Assembly.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect on the sixtieth day after it shall have
become a law.

S1719B - Bill Text download pdf


                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 1719--B
    Cal. No. 61

                       2019-2020 Regular Sessions

                            I N  S E N A T E

                            January 15, 2019
                               ___________

Introduced  by  Sens.  MARTINEZ, BOYLE, THOMAS -- read twice and ordered
  printed, and when printed to be committed to the Committee on Codes --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted  to said committee -- reported favorably from said commit-
  tee, ordered to first and second report, ordered to a  third  reading,
  amended  and  ordered  reprinted,  retaining its place in the order of
  third reading

AN ACT to amend the penal law, the criminal procedure  law,  the  family
  court  act  and  the civil rights law, in relation to establishing the
  crime of unlawful dissemination or publication of an intimate image

  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 a new section 245.15 to
read as follows:
§ 245.15 UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE.
  1. A PERSON IS GUILTY OF UNLAWFUL DISSEMINATION OR PUBLICATION  OF  AN
INTIMATE IMAGE WHEN:
  (A)  WITH INTENT TO CAUSE MATERIAL HARM TO THE EMOTIONAL, FINANCIAL OR
PHYSICAL WELFARE OF ANOTHER PERSON, HE OR SHE INTENTIONALLY DISSEMINATES
OR PUBLISHES A STILL OR VIDEO IMAGE OF SUCH OTHER PERSON, WHO  IS  IDEN-
TIFIABLE  FROM  THE  STILL  OR  VIDEO  IMAGE  ITSELF OR FROM INFORMATION
DISPLAYED IN CONNECTION WITH THE STILL  OR  VIDEO  IMAGE,  WITHOUT  SUCH
OTHER PERSON'S CONSENT, WHICH DEPICTS:
  (I) AN UNCLOTHED OR EXPOSED INTIMATE PART OF SUCH OTHER PERSON; OR
  (II) SUCH OTHER PERSON ENGAGING IN SEXUAL CONDUCT AS DEFINED IN SUBDI-
VISION TEN OF SECTION 130.00 OF THIS CHAPTER WITH ANOTHER PERSON; AND
  (B)  SUCH  STILL OR VIDEO IMAGE WAS TAKEN UNDER CIRCUMSTANCES WHEN THE
PERSON DEPICTED HAD A REASONABLE EXPECTATION OF PRIVACY  AND  THE  ACTOR
KNEW  OR  REASONABLY  SHOULD HAVE KNOWN THE PERSON DEPICTED INTENDED FOR
THE STILL OR VIDEO IMAGE TO REMAIN PRIVATE, REGARDLESS  OF  WHETHER  THE
ACTOR WAS PRESENT WHEN THE STILL OR VIDEO IMAGE WAS TAKEN.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                      [ ] is old law to be omitted.
                                                           LBD06276-07-9

S. 1719--B                          2

  2.  FOR PURPOSES OF THIS SECTION "INTIMATE PART" MEANS THE NAKED GENI-
TALS, PUBIC AREA, ANUS OR FEMALE NIPPLE OF THE PERSON.
  2-A.  FOR  PURPOSES  OF THIS SECTION "DISSEMINATE" AND "PUBLISH" SHALL
HAVE THE SAME MEANING AS DEFINED IN SECTION 250.40 OF THIS TITLE.
  3. THIS SECTION SHALL NOT APPLY TO THE FOLLOWING:
  (A) THE REPORTING OF UNLAWFUL CONDUCT;
  (B) DISSEMINATION OR PUBLICATION OF  AN  INTIMATE  IMAGE  MADE  DURING
LAWFUL  AND  COMMON  PRACTICES  OF LAW ENFORCEMENT, LEGAL PROCEEDINGS OR
MEDICAL TREATMENT;
  (C) IMAGES INVOLVING VOLUNTARY EXPOSURE IN A COMMERCIAL SETTING;
  (D) DISSEMINATION OR PUBLICATION OF  AN  INTIMATE  IMAGE  MADE  FOR  A
LEGITIMATE PUBLIC PURPOSE;
  (E)  PROVIDERS  OF  AN  INTERACTIVE  COMPUTER SERVICE AS DEFINED IN 47
U.S.C. § 230, FOR IMAGES  PROVIDED  BY  ANOTHER  PERSON  OR  INFORMATION
CONTENT PROVIDER.
  UNLAWFUL  DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE IS A CLASS
A MISDEMEANOR.
  § 2. The opening paragraph of subdivision 1 of section 530.11  of  the
criminal procedure law, as amended by section 4 of part NN of chapter 55
of the laws of 2018, is amended to read as follows:
  The  family court and the criminal courts shall have concurrent juris-
diction over any  proceeding  concerning  acts  which  would  constitute
disorderly conduct, UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE
IMAGE,  harassment in the first degree, harassment in the second degree,
aggravated harassment in the second degree, sexual misconduct,  forcible
touching,  sexual  abuse in the third degree, sexual abuse in the second
degree as set forth in subdivision one of section 130.60  of  the  penal
law, stalking in the first degree, stalking in the second degree, stalk-
ing  in  the  third  degree,  stalking  in  the  fourth degree, criminal
mischief, menacing in the second degree, menacing in the  third  degree,
reckless  endangerment, strangulation in the first degree, strangulation
in the second degree, criminal obstruction of breathing or blood  circu-
lation,  assault  in  the second degree, assault in the third degree, an
attempted assault, identity theft in the first degree, identity theft in
the second degree, identity theft in the third degree, grand larceny  in
the  fourth  degree,  grand larceny in the third degree, coercion in the
second degree or coercion in the third degree as set forth  in  subdivi-
sions  one,  two  and  three  of section 135.60 of the penal law between
spouses or former spouses,  or  between  parent  and  child  or  between
members  of  the  same family or household except that if the respondent
would not be criminally responsible by reason of age pursuant to section
30.00 of the penal law, then  the  family  court  shall  have  exclusive
jurisdiction  over  such  proceeding.  Notwithstanding  a  complainant's
election to proceed in family court, the criminal  court  shall  not  be
divested of jurisdiction to hear a family offense proceeding pursuant to
this  section.  For  purposes  of  this  section,  "disorderly  conduct"
includes disorderly conduct not in a public place.  For purposes of this
section, "members of the same family or household"  with  respect  to  a
proceeding in the criminal courts shall mean the following:
  §  3.  The  opening  paragraph  of subdivision 1 of section 812 of the
family court act, as amended by section 5 of part NN of  chapter  55  of
the laws of 2018, is amended to read as follows:
  The  family court and the criminal courts shall have concurrent juris-
diction over any  proceeding  concerning  acts  which  would  constitute
disorderly conduct, UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE
IMAGE,  harassment in the first degree, harassment in the second degree,

S. 1719--B                          3

aggravated harassment in the second degree, sexual misconduct,  forcible
touching,  sexual  abuse in the third degree, sexual abuse in the second
degree as set forth in subdivision one of section 130.60  of  the  penal
law, stalking in the first degree, stalking in the second degree, stalk-
ing  in  the  third  degree,  stalking  in  the  fourth degree, criminal
mischief, menacing in the second degree, menacing in the  third  degree,
reckless endangerment, criminal obstruction of breathing or blood circu-
lation,  strangulation  in the second degree, strangulation in the first
degree, assault in the second degree, assault in the  third  degree,  an
attempted assault, identity theft in the first degree, identity theft in
the  second degree, identity theft in the third degree, grand larceny in
the fourth degree, grand larceny in the third degree,  coercion  in  the
second  degree  or coercion in the third degree as set forth in subdivi-
sions one, two and three of section 135.60  of  the  penal  law  between
spouses  or  former  spouses,  or  between  parent  and child or between
members of the same family or household except that  if  the  respondent
would not be criminally responsible by reason of age pursuant to section
30.00  of  the  penal  law,  then  the family court shall have exclusive
jurisdiction  over  such  proceeding.  Notwithstanding  a  complainant's
election  to  proceed  in  family court, the criminal court shall not be
divested of jurisdiction to hear a family offense proceeding pursuant to
this section. In any proceeding pursuant to this article, a court  shall
not  deny  an  order of protection, or dismiss a petition, solely on the
basis that the acts or events alleged are not relatively contemporaneous
with the date of the petition, the conclusion of the fact-finding or the
conclusion of the dispositional hearing. For purposes of  this  article,
"disorderly  conduct" includes disorderly conduct not in a public place.
For purposes of this article, "members of the same family or  household"
shall mean the following:
  §  4.  The civil rights law is amended by adding a new section 52-b to
read as follows:
  § 52-B. PRIVATE RIGHT OF ACTION FOR UNLAWFUL DISSEMINATION OR PUBLICA-
TION OF AN INTIMATE IMAGE. 1.  ANY PERSON DEPICTED IN A STILL  OR  VIDEO
IMAGE,  REGARDLESS  OF  WHETHER OR NOT THE ORIGINAL STILL OR VIDEO IMAGE
WAS CONSENSUALLY OBTAINED, SHALL HAVE A CAUSE OF ACTION AGAINST AN INDI-
VIDUAL WHO, FOR THE PURPOSE OF  HARASSING,  ANNOYING  OR  ALARMING  SUCH
PERSON,  DISSEMINATED  OR  PUBLISHED,  OR  THREATENED  TO DISSEMINATE OR
PUBLISH, SUCH STILL OR VIDEO IMAGE, WHERE SUCH IMAGE:
  A. WAS TAKEN WHEN SUCH PERSON HAD A REASONABLE EXPECTATION OF PRIVACY;
AND
  B. DEPICTS (I) AN UNCLOTHED OR EXPOSED INTIMATE PART OF  SUCH  PERSON;
OR  (II)  SUCH PERSON ENGAGING IN SEXUAL CONDUCT, AS DEFINED IN SUBDIVI-
SION TEN OF SECTION 130.00 OF THE PENAL LAW, WITH ANOTHER PERSON; AND
  C. WAS DISSEMINATED OR PUBLISHED, OR THREATENED TO BE DISSEMINATED  OR
PUBLISHED, WITHOUT THE CONSENT OF SUCH PERSON.
  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. DISSEMINATION OR PUBLICATION OF AN INTIMATE STILL  OR  VIDEO  IMAGE
MADE  DURING  LAWFUL  AND  COMMON  PRACTICES  OF  LAW ENFORCEMENT, LEGAL
PROCEEDINGS OR MEDICAL TREATMENT;
  C. IMAGES INVOLVING VOLUNTARY EXPOSURE IN A COMMERCIAL SETTING;

S. 1719--B                          4

  D. DISSEMINATION OR PUBLICATION OF AN INTIMATE STILL  OR  VIDEO  IMAGE
MADE FOR A LEGITIMATE PUBLIC PURPOSE; OR
  E.  PROVIDERS  OF  AN  INTERACTIVE  COMPUTER  SERVICE AS DEFINED IN 47
U.S.C. § 230, FOR IMAGES  PROVIDED  BY  ANOTHER  PERSON  OR  INFORMATION
CONTENT PROVIDER.
  4.  ANY  PERSON  DEPICTED  IN  A  STILL OR VIDEO IMAGE THAT DEPICTS AN
UNCLOTHED OR EXPOSED INTIMATE PART OF SUCH PERSON, OR SUCH PERSON ENGAG-
ING IN SEXUAL CONDUCT AS DEFINED IN SUBDIVISION TEN OF SECTION 130.00 OF
THE PENAL LAW WITH ANOTHER PERSON, WHICH IS  DISSEMINATED  OR  PUBLISHED
WITHOUT  THE  CONSENT OF SUCH PERSON AND WHERE SUCH PERSON HAD A REASON-
ABLE EXPECTATION OF PRIVACY, MAY MAINTAIN AN ACTION OR SPECIAL  PROCEED-
ING 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. A. ANY WEBSITE THAT HOSTS OR TRANSMITS  A  STILL  OR  VIDEO  IMAGE,
VIEWABLE  IN  THIS  STATE,  TAKEN  UNDER  CIRCUMSTANCES WHERE THE PERSON
DEPICTED HAD A REASONABLE EXPECTATION OF PRIVACY, WHICH DEPICTS:
  (I) AN UNCLOTHED OR EXPOSED  INTIMATE  PART,  AS  DEFINED  IN  SECTION
245.15 OF THE PENAL LAW, OF A RESIDENT OF THIS STATE; OR
  (II) A RESIDENT OF THIS STATE ENGAGING IN SEXUAL CONDUCT AS DEFINED IN
SUBDIVISION  TEN OF SECTION 130.00 OF THE PENAL LAW WITH ANOTHER PERSON;
AND
  B. SUCH STILL OR VIDEO IMAGE IS  HOSTED  OR  TRANSMITTED  WITHOUT  THE
CONSENT  OF  SUCH  RESIDENT  OF THIS STATE, 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.
  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.
  § 5. This act shall take effect on the sixtieth  day  after  it  shall
have become a law.

Co-Sponsors

view additional co-sponsors

S1719C (ACTIVE) - Details

See Assembly Version of this Bill:: A5981
Law Section:: Penal Law
Laws Affected:: Add §245.15, Pen L; amd §530.11, CP L; amd §812, Fam Ct Act; add §52-b, Civ Rts L

S1719C (ACTIVE) - Summary

Establishes the crime of unlawful dissemination or publication of an intimate image and creates a private right of action for such crime.

S1719C (ACTIVE) - Sponsor Memo

 
BILL NUMBER: S1719C

SPONSOR: MARTINEZ
 
TITLE OF BILL:

An act to amend the penal law, the criminal procedure law, the family
court act and the civil rights law, in relation to establishing the
crime of unlawful dissemination or publication of an intimate image

 
PURPOSE OR GENERAL IDEA OF BILL:

Establishes the crime of unlawful dissemination or publication of an
intimate image

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 adds a new section, 245.15 to the Penal Law, which provides
that a person is guilty of unlawful dissemination or publication of an
intimate image when with intent to cause harm to the emotional, finan-
cial or physical welfare of another person, he or she intentionally
disseminates or publishes a still or video image of such other person,

who is identifiable from the still or video image itself or from infor-
mation displayed in connection with the still or video image, without
such person's consent.

Additionally, the dissemination must depict an unclothed or exposed
intimate part of such other person; or such other person engaging in
sexual conduct with another person; and such still or video image was
taken under circumstances when the person depicted had a reasonable
expectation for the image to remain private, regardless of whether the
actor was present when the still or video image was taken.

Unlawful dissemination or publication of an intimate image is a class A
misdemeanor.

Section 2 provides definitions of "intimate part," "disseminate," and
"publish."

Section 3 provides exceptions for the reporting of unlawful conduct,
dissemination or publication of an intimate image made during lawful and
common practices of law enforcement, legal proceedings or medical treat-
ment, images involving voluntary exposure in a public or commercial
setting, or dissemination or publication for a legitimate public
purpose.

Section 4 provides that nothing in this section shall be construed to
limit or enlarge protections that 47 U.S.C. § 230 confers on an interac-
tive computer service

Subdivision 1 of Section 530.11 of the Criminal Procedure Law and Subdi-
vision 1 of Section 812 of the Family Court Act are amended to provide
concurrent jurisdiction to the family court and criminal courts over any
proceeding concerning acts of unlawful dissemination or publication of
an intimate image.

Section 52-B is also added to the Civil Rights Law to allow for a
private right of action for the unlawful dissemination or publication of
an intimate image.

Section 1 - Regardless of whether or not the original still or video
image was consensually obtained, a person depicted shall have a cause of
action against an individual who, for the purpose of harassing, annoying
or alarming such person, disseminated or published, or threatened to
disseminate or publish, such still or video image, where such image was
taken when such person had a reasonable expectation of privacy, and it
depicts an unclothed or exposed intimate part of such person, or such
person engaging in sexual conduct with another person, and it was
disseminated or published, or threatened to disseminated or publish,
without the consent of such person.

any website or internet service provider that hosts or transmits a still
or video image, viewable in this state, taken under circumstances where
the person depicted had a reasonable expectation of privacy, which
depicts an unclothed or exposed intimate part of a resident of this
state, or a resident of this state engaging in sexual conduct with
another person and which reveals an unclothed or exposed intimate part,
and such still or video image is hosted or transmitted without the
consent of such resident of this state, shall be subject to personal
jurisdiction in a civil action in this state to the maximum extent
permitted.

Section 2 - In any action commenced, the finder of fact may award
injunctive relief, exemplary damages, compensatory damages and reason-
able court costs and attorney's fees.

Section 3 provides exceptions for the reporting of unlawful conduct,
dissemination or publication of an intimate image made during lawful and
common practices of law enforcement, legal proceedings or medical treat-
ment, images involving voluntary exposure in a public or commercial
setting, or dissemination or publication for a legitimate public purpose

Section 4 provides for an action or special proceeding for a court order
to require any website to permanently remove such still or video image.

Section 5 - Any website that hosts or transmits a still or video image,
taken under circumstances where the person depicted had a reasonable
expectation of privacy, which depicts an unclothed or exposed intimate
part, or a resident of New York engaging in sexual conduct, and such
still or video image is hosted or transmitted without the consent of
such resident, shall be subject to personal jurisdiction in a civil
action to the maximum extent permitted.

Section 6 - A cause of action or special proceeding shall be commenced
the later of either three years after the dissemination or publication
of an image, or one year from the date a person discovers the dissem-
ination or publication of such image.

Section 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.

Section 8 - The provisions of this section are in addition to, but shall
not supersede, any other rights or remedies available in law or equity.

Section 9 - If any provision of this section is held invalid, the inva-
lidity shall not affect other provisions of this section.

Section 10 - Provides that nothing in this section shall be construed to
limit or enlarge protections that 47 U.S.C. § 230 confers on an interac-
tive computer service

 
JUSTIFICATION:

In an era of increased text messaging, social networking, and emailing,
people in intimate relationships sometimes share pictures with each
other, some of which may be sexually explicit in nature. However, recip-
ients of these images do not always keep the images within the confines
of an intimate relationship, and have the ability to widely disseminate
the photos on the Internet.  The unlawful dissemination and publication
of such intimate images, also known as "revenge porn" is often provided
to Internet websites, and features photos sometimes accompanied by
disparaging descriptions and identifying details, such as where the
victims live and work, as well as links to their social network pages.

Posting these photographs online is damaging to the reputations of the
victims. These photographs have extensive negative effects, including
destroying future intimate relationships and educational and employment
opportunities. Victims are routinely threatened with sexual assault,
stalked, harassed, or fired from jobs.

Criminalization is preferable to civil suits by victims because civil
suits do not deter those who upload or disclose new images after a civil
suit has ended. Furthermore, a lengthy trial is emotionally exhausting
and prohibitively expensive. Moreover, the websites that distribute
nonconsensual pornography are given broad immunity for civil liability
under federal law through the Communications Decency Act. Therefore,
criminalizing dissemination and publication of these photos may prevent
websites from benefiting from the harmful images.

However, because New York relies on common law to pursue a civil case,
including the torts of harassment and intentional infliction of
emotional distress, a civil suit is often difficult to pursue and win.
As such, this legislation adds a private right of action for unlawful
dissemination and publication images that would provide recourse to
victims. The private right of action is designed to work in conjunction
with the criminal law, and does not require that a criminal conviction
or charge be obtained in order to proceed. The victim will have a choice
whether to pursue a criminal or civil case, or both.

 
PRIOR LEGISLATIVE HISTORY:

2018: S.9019-A/A.11188-A - Passed Assembly.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect on the sixtieth day after it shall have
become a law.

S1719C (ACTIVE) - Bill Text download pdf


                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 1719--C
    Cal. No. 61

                       2019-2020 Regular Sessions

                            I N  S E N A T E

                            January 15, 2019
                               ___________

Introduced  by Sens. MARTINEZ, BOYLE, BIAGGI, GOUNARDES, HOYLMAN, KAMIN-
  SKY, KRUEGER, THOMAS -- read  twice  and  ordered  printed,  and  when
  printed  to  be  committed  to  the  Committee  on  Codes -- committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee -- reported favorably from said  committee,  ordered
  to  first  and  second report, ordered to a third reading, amended and
  ordered reprinted, retaining its place in the order of  third  reading
  --  again  amended  and  ordered reprinted, retaining its place in the
  order of third reading

AN ACT to amend the penal law, the criminal procedure  law,  the  family
  court  act  and  the civil rights law, in relation to establishing the
  crime of unlawful dissemination or publication of an intimate image

  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 a new section 245.15 to
read as follows:
§ 245.15 UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE.
  1. A PERSON IS GUILTY OF UNLAWFUL DISSEMINATION OR PUBLICATION  OF  AN
INTIMATE IMAGE WHEN:
  (A)  WITH INTENT TO CAUSE HARM TO THE EMOTIONAL, FINANCIAL OR PHYSICAL
WELFARE OF ANOTHER PERSON,  HE  OR  SHE  INTENTIONALLY  DISSEMINATES  OR
PUBLISHES  A STILL OR VIDEO IMAGE OF SUCH OTHER PERSON, WHO IS IDENTIFI-
ABLE FROM THE STILL OR VIDEO IMAGE ITSELF OR FROM INFORMATION  DISPLAYED
IN CONNECTION WITH THE STILL OR VIDEO IMAGE, WITHOUT SUCH OTHER PERSON'S
CONSENT, WHICH DEPICTS:
  (I) AN UNCLOTHED OR EXPOSED INTIMATE PART OF SUCH OTHER PERSON; OR
  (II) SUCH OTHER PERSON ENGAGING IN SEXUAL CONDUCT AS DEFINED IN SUBDI-
VISION TEN OF SECTION 130.00 OF THIS CHAPTER WITH ANOTHER PERSON; AND
  (B)  SUCH  STILL OR VIDEO IMAGE WAS TAKEN UNDER CIRCUMSTANCES WHEN THE
PERSON DEPICTED HAD A REASONABLE EXPECTATION THAT THE IMAGE WOULD REMAIN
PRIVATE AND THE ACTOR KNEW OR REASONABLY SHOULD HAVE  KNOWN  THE  PERSON

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                      [ ] is old law to be omitted.
                                                           LBD06276-12-9

S. 1719--C                          2

DEPICTED  INTENDED  FOR  THE  STILL  OR  VIDEO  IMAGE TO REMAIN PRIVATE,
REGARDLESS OF WHETHER THE ACTOR WAS PRESENT  WHEN  THE  STILL  OR  VIDEO
IMAGE WAS TAKEN.
  2.  FOR PURPOSES OF THIS SECTION "INTIMATE PART" MEANS THE NAKED GENI-
TALS, PUBIC AREA, ANUS OR FEMALE NIPPLE OF THE PERSON.
  2-A. FOR PURPOSES OF THIS SECTION "DISSEMINATE"  AND  "PUBLISH"  SHALL
HAVE THE SAME MEANING AS DEFINED IN SECTION 250.40 OF THIS TITLE.
  3. THIS SECTION SHALL NOT APPLY TO THE FOLLOWING:
  (A) THE REPORTING OF UNLAWFUL CONDUCT;
  (B)  DISSEMINATION  OR  PUBLICATION  OF  AN INTIMATE IMAGE MADE DURING
LAWFUL AND COMMON PRACTICES OF LAW  ENFORCEMENT,  LEGAL  PROCEEDINGS  OR
MEDICAL TREATMENT;
  (C)  IMAGES  INVOLVING  VOLUNTARY  EXPOSURE  IN A PUBLIC OR COMMERCIAL
SETTING; OR
  (D) DISSEMINATION OR PUBLICATION OF  AN  INTIMATE  IMAGE  MADE  FOR  A
LEGITIMATE PUBLIC PURPOSE.
  4. 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.
  UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE IS A  CLASS
A MISDEMEANOR.
  §  2.  The opening paragraph of subdivision 1 of section 530.11 of the
criminal procedure law, as amended by section 4 of part NN of chapter 55
of the laws of 2018, is amended to read as follows:
  The family court and the criminal courts shall have concurrent  juris-
diction  over  any  proceeding  concerning  acts  which would constitute
disorderly conduct, UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE
IMAGE, harassment in the first degree, harassment in the second  degree,
aggravated  harassment in the second degree, sexual misconduct, forcible
touching, sexual abuse in the third degree, sexual abuse in  the  second
degree  as  set  forth in subdivision one of section 130.60 of the penal
law, stalking in the first degree, stalking in the second degree, stalk-
ing in the  third  degree,  stalking  in  the  fourth  degree,  criminal
mischief,  menacing  in the second degree, menacing in the third degree,
reckless endangerment, strangulation in the first degree,  strangulation
in  the second degree, criminal obstruction of breathing or blood circu-
lation, assault in the second degree, assault in the  third  degree,  an
attempted assault, identity theft in the first degree, identity theft in
the  second degree, identity theft in the third degree, grand larceny in
the fourth degree, grand larceny in the third degree,  coercion  in  the
second  degree  or coercion in the third degree as set forth in subdivi-
sions one, two and three of section 135.60  of  the  penal  law  between
spouses  or  former  spouses,  or  between  parent  and child or between
members of the same family or household except that  if  the  respondent
would not be criminally responsible by reason of age pursuant to section
30.00  of  the  penal  law,  then  the family court shall have exclusive
jurisdiction  over  such  proceeding.  Notwithstanding  a  complainant's
election  to  proceed  in  family court, the criminal court shall not be
divested of jurisdiction to hear a family offense proceeding pursuant to
this  section.  For  purposes  of  this  section,  "disorderly  conduct"
includes disorderly conduct not in a public place.  For purposes of this
section,  "members  of  the  same family or household" with respect to a
proceeding in the criminal courts shall mean the following:

S. 1719--C                          3

  § 3. The opening paragraph of subdivision 1  of  section  812  of  the
family  court  act,  as amended by section 5 of part NN of chapter 55 of
the laws of 2018, is amended to read as follows:
  The  family court and the criminal courts shall have concurrent juris-
diction over any  proceeding  concerning  acts  which  would  constitute
disorderly conduct, UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE
IMAGE,  harassment in the first degree, harassment in the second degree,
aggravated harassment in the second degree, sexual misconduct,  forcible
touching,  sexual  abuse in the third degree, sexual abuse in the second
degree as set forth in subdivision one of section 130.60  of  the  penal
law, stalking in the first degree, stalking in the second degree, stalk-
ing  in  the  third  degree,  stalking  in  the  fourth degree, criminal
mischief, menacing in the second degree, menacing in the  third  degree,
reckless endangerment, criminal obstruction of breathing or blood circu-
lation,  strangulation  in the second degree, strangulation in the first
degree, assault in the second degree, assault in the  third  degree,  an
attempted assault, identity theft in the first degree, identity theft in
the  second degree, identity theft in the third degree, grand larceny in
the fourth degree, grand larceny in the third degree,  coercion  in  the
second  degree  or coercion in the third degree as set forth in subdivi-
sions one, two and three of section 135.60  of  the  penal  law  between
spouses  or  former  spouses,  or  between  parent  and child or between
members of the same family or household except that  if  the  respondent
would not be criminally responsible by reason of age pursuant to section
30.00  of  the  penal  law,  then  the family court shall have exclusive
jurisdiction  over  such  proceeding.  Notwithstanding  a  complainant's
election  to  proceed  in  family court, the criminal court shall not be
divested of jurisdiction to hear a family offense proceeding pursuant to
this section. In any proceeding pursuant to this article, a court  shall
not  deny  an  order of protection, or dismiss a petition, solely on the
basis that the acts or events alleged are not relatively contemporaneous
with the date of the petition, the conclusion of the fact-finding or the
conclusion of the dispositional hearing. For purposes of  this  article,
"disorderly  conduct" includes disorderly conduct not in a public place.
For purposes of this article, "members of the same family or  household"
shall mean the following:
  §  4.  The civil rights law is amended by adding a new section 52-b to
read as follows:
  § 52-B. PRIVATE RIGHT OF ACTION FOR UNLAWFUL DISSEMINATION OR PUBLICA-
TION OF AN INTIMATE IMAGE. 1.  ANY PERSON DEPICTED IN A STILL  OR  VIDEO
IMAGE,  REGARDLESS  OF  WHETHER OR NOT THE ORIGINAL STILL OR VIDEO IMAGE
WAS CONSENSUALLY OBTAINED, SHALL HAVE A CAUSE OF ACTION AGAINST AN INDI-
VIDUAL WHO, FOR THE PURPOSE OF  HARASSING,  ANNOYING  OR  ALARMING  SUCH
PERSON,  DISSEMINATED  OR  PUBLISHED,  OR  THREATENED  TO DISSEMINATE OR
PUBLISH, SUCH STILL OR VIDEO IMAGE, WHERE SUCH IMAGE:
  A. WAS TAKEN WHEN SUCH PERSON HAD A REASONABLE  EXPECTATION  THAT  THE
IMAGE WOULD REMAIN PRIVATE; AND
  B.  DEPICTS  (I) AN UNCLOTHED OR EXPOSED INTIMATE PART OF SUCH PERSON;
OR (II) SUCH PERSON ENGAGING IN SEXUAL CONDUCT, AS DEFINED  IN  SUBDIVI-
SION TEN OF SECTION 130.00 OF THE PENAL LAW, WITH ANOTHER PERSON; AND
  C.  WAS DISSEMINATED OR PUBLISHED, OR THREATENED TO BE DISSEMINATED OR
PUBLISHED, WITHOUT THE CONSENT OF SUCH PERSON.
  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.

S. 1719--C                          4

  3. THIS SECTION SHALL NOT APPLY TO THE FOLLOWING:
  A. THE REPORTING OF UNLAWFUL CONDUCT;
  B.  DISSEMINATION  OR  PUBLICATION OF AN INTIMATE STILL OR VIDEO IMAGE
MADE DURING LAWFUL  AND  COMMON  PRACTICES  OF  LAW  ENFORCEMENT,  LEGAL
PROCEEDINGS OR MEDICAL TREATMENT;
  C.  IMAGES  INVOLVING  VOLUNTARY  EXPOSURE  IN  A PUBLIC OR COMMERCIAL
SETTING; OR
  D. DISSEMINATION OR PUBLICATION OF AN INTIMATE STILL  OR  VIDEO  IMAGE
MADE FOR A LEGITIMATE PUBLIC PURPOSE.
  4.  ANY  PERSON  DEPICTED  IN  A  STILL OR VIDEO IMAGE THAT DEPICTS AN
UNCLOTHED OR EXPOSED INTIMATE PART OF SUCH PERSON, OR SUCH PERSON ENGAG-
ING IN SEXUAL CONDUCT AS DEFINED IN SUBDIVISION TEN OF SECTION 130.00 OF
THE PENAL LAW WITH ANOTHER PERSON, WHICH IS  DISSEMINATED  OR  PUBLISHED
WITHOUT  THE  CONSENT OF SUCH PERSON AND WHERE SUCH PERSON HAD A REASON-
ABLE EXPECTATION THAT THE IMAGE WOULD REMAIN PRIVATE,  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. A. ANY WEBSITE THAT HOSTS OR TRANSMITS  A  STILL  OR  VIDEO  IMAGE,
VIEWABLE  IN  THIS  STATE,  TAKEN  UNDER  CIRCUMSTANCES WHERE THE PERSON
DEPICTED HAD A  REASONABLE  EXPECTATION  THAT  THE  IMAGE  WOULD  REMAIN
PRIVATE, WHICH DEPICTS:
  (I)  AN  UNCLOTHED  OR  EXPOSED  INTIMATE  PART, AS DEFINED IN SECTION
245.15 OF THE PENAL LAW, OF A RESIDENT OF THIS STATE; OR
  (II) A RESIDENT OF THIS STATE ENGAGING IN SEXUAL CONDUCT AS DEFINED IN
SUBDIVISION TEN OF SECTION 130.00 OF THE PENAL LAW WITH ANOTHER  PERSON;
AND
  B.  SUCH  STILL  OR  VIDEO  IMAGE IS HOSTED OR TRANSMITTED WITHOUT THE
CONSENT OF SUCH RESIDENT OF THIS STATE, 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.
  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.
  § 5. This act shall take effect on the sixtieth  day  after  it  shall
have become a law.

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The New York State Senate

senate Bill S1719C

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Archive: Last Bill Status Via A5981 - Signed by Governor

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Feb 28, 2019 - floor Vote

Floor Vote: Feb 28, 2019

Jan 29, 2019 - Codes committee Vote

Committee Vote: Jan 29, 2019

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S1719 - Details

S1719 - Summary

S1719 - Sponsor Memo

S1719 - Bill Text download pdf

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S1719A - Details

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S1719B - Details

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S1719C (ACTIVE) - Details

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S1719C (ACTIVE) - Bill Text download pdf

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senate Bill S1719C

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Sponsored By

Archive: Last Bill Status Via A5981 - Signed by Governor

Your Voice

Actions

Votes

Feb 28, 2019 - floor Vote

Floor Vote: Feb 28, 2019

Jan 29, 2019 - Codes committee Vote

Committee Vote: Jan 29, 2019

Bill Amendments

Co-Sponsors

S1719 - Details

S1719 - Summary

S1719 - Sponsor Memo

S1719 - Bill Text download pdf

Co-Sponsors

S1719A - Details

S1719A - Summary

S1719A - Sponsor Memo

S1719A - Bill Text download pdf

Co-Sponsors

S1719B - Details

S1719B - Summary

S1719B - Sponsor Memo

S1719B - Bill Text download pdf

Co-Sponsors

S1719C (ACTIVE) - Details

S1719C (ACTIVE) - Summary

S1719C (ACTIVE) - Sponsor Memo

S1719C (ACTIVE) - Bill Text download pdf

Comments