Prohibits the recording of visual images of a person having a reasonable expectation of privacy while within a dwelling, when such images are recorded by another person outside the dwelling; makes such a violation a misdemeanor and establishes civil liability by private cause of action.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7804
SPONSOR: Paulin TITLE OF BILL: An act to amend the civil rights law, in relation to
capturing the visual image of a person within a dwelling when such
person has a reasonable expectation of privacy
PURPOSE:
To create a zone of privacy around the home which will prevent people
from capturing and using the image of the residents within.
SUMMARY OF PROVISIONS:
Section 1 - Amends § 50 of the civil rights law to include a prohibition
on knowingly capturing the image of another person within a dwelling,
when that person has a reasonable expectation of privacy. A person in
violation of this section will be guilty of a misdemeanor.
Section 2 - Amends § 51 of the civil rights law to permit a person whose
image is captured in violation of § 50 may maintain an equitable action,
and may also sue for any damages incurred.
JUSTIFICATION:
In Foster v. Svenson (2015 N.Y. App. Div. LEXIS 3028), the plaintiffs
sued the defendant for taking photographs of their children through
their apartment windows and offering them for sale. The defendant Arne
Svenson, a prominent photographer, using a telephoto camera lens, began
a project where he covertly took pictures of his neighbors in their
homes. Svenson went so far as to darken his own home, hiding in the
shadows as he took pictures. After months of this behavior, he released
a photograph series entitled "The Neighbors". In the promotional mate-
rials for the exhibit, the defendant stated that for his "subjects there
is no question of privacy; they are performing behind a transparent
scrim on a stage of their own creation with the curtain raised high."
The plaintiffs were unaware that they were being photographed. Photo-
graphs of the plaintiffs included their son in his diaper, daughter in a
swimsuit, and the other showed plaintiff holding up her daughter. The
plaintiffs sued under Civil Rights law §§ 50 and 51. These sections
guarantee a right to privacy. The defendant stated that his use of the
images constituted art work and therefore was not included within the
prohibition on using another person's image for "advertising or trade
purpose". The court after extensive analysis concluded that the images
were works of art, which was protected by the First Amendment. However,
the court stated "undoubtedly, like plaintiffs, many people would be
rightfully offended by the intrusive manner in which the photographs
were taken in this case. However, such complaints are best addressed to
the Legislature."
This bill seeks to create a zone of privacy around the home. Currently,
there are only protections when an image of people inside a home is
captured and the image is used for advertising purposes. As technologies
advance, it will become easier for people to surreptitiously record and
capture the images of their neighbors. This case illustrates the glar-
ing absence of the protection that people expect within the confines of
their home. This bill seeks to remedy that, by protecting people in
their homes from uninvited surveillance, no matter the motive.
LEGISLATIVE HISTORY:
New Bill.
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
Immediately.
STATE OF NEW YORK
________________________________________________________________________
7804
2015-2016 Regular Sessions
IN ASSEMBLY
May 27, 2015
___________
Introduced by M. of A. PAULIN -- read once and referred to the Committee
on Codes
AN ACT to amend the civil rights law, in relation to capturing the visu-
al image of a person within a dwelling when such person has a reason-
able expectation of privacy
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The opening paragraph of section 50 of the civil rights law
2 is designated subdivision 1 and a new subdivision 2 is added to read as
3 follows:
4 2. A person who, while located outside a dwelling, knowingly records
5 or captures a visual image of another person within a dwelling and
6 having a reasonable expectation of privacy therein, shall be guilty of a
7 misdemeanor. For the purposes of this subdivision, "dwelling" shall have
8 the same meaning as provided in subdivision three of section 140.00 of
9 the penal law.
10 § 2. The opening paragraph of section 51 of the civil rights law is
11 designated subdivision 1 and a new subdivision 2 is added to read as
12 follows:
13 2. Any person whose visual image is recorded or captured in violation
14 of subdivision two of section fifty of this article may maintain an
15 equitable action in the supreme court of this state against any person
16 recording, capturing or disseminating such visual image, to prevent the
17 viewing or dissemination thereof; and may also sue and recover damages
18 for any injuries sustained by reason of such viewing or dissemination
19 and if the defendant shall have knowingly viewed or disseminated such
20 person's visual image captured or recorded in violation of subdivision
21 two of section fifty of this article, the jury, in its discretion, may
22 award exemplary damages.
23 § 3. This act shall take effect immediately.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10500-01-5
