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This entry was published on 2021-11-12
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Private right of action for unlawful dissemination or publication of a sexually explicit depiction of an individual
Civil Rights (CVR) CHAPTER 6, ARTICLE 5
* § 52-c. Private right of action for unlawful dissemination or
publication of a sexually explicit depiction of an individual. 1. For
the purposes of this section:

a. "depicted individual" means an individual who appears, as a result
of digitization, to be giving a performance they did not actually
perform or to be performing in a performance that was actually performed
by the depicted individual but was subsequently altered to be in
violation of this section.

b. "digitization" means to realistically depict the nude body parts of
another human being as the nude body parts of the depicted individual,
computer-generated nude body parts as the nude body parts of the
depicted individual or the depicted individual engaging in sexual
conduct, as defined in subdivision ten of section 130.00 of the penal
law, in which the depicted individual did not engage.

c. "individual" means a natural person.

d. "person" means a human being or legal entity.

e. "sexually explicit material" means any portion of an audio visual
work that shows the depicted individual performing in the nude, meaning
with an unclothed or exposed intimate part, as defined in section 245.15
of the penal law, or appearing to engage in, or being subjected to,
sexual conduct, as defined in subdivision ten of section 130.00 of the
penal law.

2. a. A depicted individual shall have a cause of action against a
person who, discloses, disseminates or publishes sexually explicit
material related to the depicted individual, and the person knows or
reasonably should have known the depicted individual in that material
did not consent to its creation, disclosure, dissemination, or

b. It shall not be a defense to an action under this section that
there is a disclaimer in the sexually explicit material that
communicates that the inclusion of the depicted individual in the
sexually explicit material was unauthorized or that the depicted
individual did not participate in the creation or development of the

3. a. A depicted individual may only consent to the creation,
disclosure, dissemination, or publication of sexually explicit material
by knowingly and voluntarily signing an agreement written in plain
language that includes a general description of the sexually explicit
material and the audiovisual work in which it will be incorporated.

b. A depicted individual may rescind consent by delivering written
notice within three business days from the date consent was given to the
person in whose favor consent was made, unless one of the following
requirements is satisfied:

i. the depicted individual is given at least three business days to
review the terms of the agreement before signing it; or

ii. if the depicted individual is represented, the attorney, talent
agent, or personal manager authorized to represent the depicted
individual provides additional written approval of the signed agreement.

4. a. A person is not liable under this section if:

i. the person discloses, disseminates or publishes the sexually
explicit material in the course of reporting unlawful activity,
exercising the person's law enforcement duties, or hearings, trials or
other legal proceedings; or

ii. the sexually explicit material is a matter of legitimate public
concern, a work of political or newsworthy value or similar work, or
commentary, criticism or disclosure that is otherwise protected by the
constitution of this state or the United States; provided that sexually
explicit material shall not be considered of newsworthy value solely
because the depicted individual is a public figure.

5. In any action commenced pursuant to 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.

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 sexually
explicit material; or

b. one year from the date a person discovers, or reasonably should
have discovered, the dissemination or publication of such sexually
explicit material.

7. Nothing in this section shall be read to require a prior criminal
complaint, prosecution or conviction to establish the elements of the
cause of action provided for in this section.

8. The provisions of this section including the remedies are in
addition to, and 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.

* NB There are 2 § 52-c's