Enacts the "indecent image or video removal act" to establish a civil cause of action for the posting on the internet of images or video of the intimate parts or sexual conduct of a state resident.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8200
SPONSOR: Moya TITLE OF BILL: An act to amend the civil rights law, in relation to
indecent image or video removal
PURPOSE OR GENERAL IDEA OF BILL: The Civil Rights Law is amended by
adding a new section 52-A to create a cause of action for New York resi-
dents against persons who post sexual images and video online without
their consent and to permit these residents to obtain a court order to
require the redaction of such images and video from websites and inter-
net service providers that host it.
SUMMARY OF SPECIFIC PROVISIONS:
Section one of the bill sets forth the legislative intent.
Section two of the bill sets forth the limits on personal jurisdiction
for the statute.
Section three of the bill creates a cause of action for residents who
have images or video of their sexual or other intimate parts or such
person engaging in sexual conduct which is posted online without their
consent against persons who post such images or video online to harass,
annoy or alarm the resident.
Section four of the bill creates a special proceeding for persons to
obtain a court order to require websites and internet service providers
to redact images and/or video that is hosted without the written consent
of the residents depicted in such image or video.
Section five of the bill sets forth the effective date.
JUSTIFICATION: This bill addresses the problem of persons who post
images and video of sexual content for the purpose of harassment, annoy-
ance or alarm of the persons depicted in the images or video without
that person's consent, sometimes colloquially referred to as "revenge
porn". The persistence of this problem has demonstrated the need for
legislation to permit the recovery of damages against the person who
posted the images or video without consent and this bill creates a
special proceeding through which the affected person can obtain a court
order to have such images or video permanently redacted.
Due to the inherent difficulty of suing websites that are viewable in
New York but are based elsewhere the bill would create a new standard
for New York's long arm jurisdiction and expands jurisdiction to the
maximum extent permitted under the United States Constitution.
The bill would permit persons whose sexual images and video have been
posted online without their consent to bring suit against the person who
posted such images or video online where the posting was done for the
purpose of harassment, annoyance or the alarm of the affected person.
The standard of harassment, annoyance and alarm is used because that is
the language of our criminal harassment statute. Damages would not be
recoverable against persons who simply forward images and video of
people they do not know. It is unfair to subject such persons to liabil-
ity since they are unaware that the person did not consent to the wide-
spread publication of such information. This result means that sometimes
an affected resident will only be able to pursue a court order to have
such images permanently redacted and will be unable to sue anybody for
damages.
In addition to creating a cause of action for the benefit of the victims
of such conduct, this bill permits the recovery of exemplary damages, in
addition to compensatory damages. It is felt that evidence warranting
the recovery of compensatory damages may, in some instances, be diffi-
cult to establish hence exemplary damages should be available. Moreover,
the sometimes heinous and malicious nature of the conduct sought to be
proscribed here falls well within existing law concerning exemplary or
punitive damages, the imposition of which seeks to punish and deter such
conduct.
The bill does not permit the recovery of damages from websites or Inter-
net service providers because that is arguably pre-empted by federal
law. The action against websites and internet service providers is
limited to providing equitable relief, i.e. seeking a court order
compelling them to permanently redact these images and video. It is also
deliberate that in order to resist a court order to redact such images,
the website or internet service provider will have to show written
consent of the affected persons. This is done to foster a business envi-
ronment where sexual images on the internet are backed up by written
proof that their dissemination has been authorized by the persons
depicted in them.
There are several issues raised by this groundbreaking legislation.
One, federal preemption has already been mentioned. Federal law holds
that: "No provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided by
another information content provider." That same law preempts any state
law to the contrary. See Title 47 USC 230. Thus, this bill would not be
preempted by federal law.
Another issue is jurisdiction. Many websites viewable in New York are
actually located or hosted elsewhere, and many sites that host the
content that this legislation is aimed at do not charge a fee to view
the images, instead relying upon advertising or by charging the persons
depicted in the image or video a fee to have it redacted. For those
websites that DO charge a fee to view the material, New York Law already
provides a remedy. See, Civil Rights Law Sec. 51. To ensure that any
Order issued by a New York Court reaches as far as possible, the bill
extends the reach of New York's long-arm statute on personal jurisdic-
tion to the maximum extent permissible under the United States Constitu-
tion.
Another issue is whether the terms of this bill are foreclosed by the
first amendment of the United States Constitution. It is important to
remember that not all speech is protected under the first amendment.
Examples include defamation, fighting words, and certain verbal acts
shouting fire in a crowded theater. Moreover, certain other types of
speech-related conduct can be restricted or criminalized. This bill
represents a reasonable restriction.
The harms due to the unwelcome and unauthorized exposure of such
personal information are well-documented. It is time for New York to
break new ground and bring relief to people affected by these acts. It
is one thing to punish the person responsible for the wrong of posting
the information without consent. But if the affected person cannot
remove the images and video from the internet, it will continue this
harm for the rest of that person's life. That is an unacceptable result,
and hence represents why this bill is necessary.
LEGISLATIVE HISTORY: New bill.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.
EFFECTIVE DATE: This bill will take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
8200
2013-2014 Regular Sessions
IN ASSEMBLY
October 24, 2013
___________
Introduced by M. of A. MOYA -- read once and referred to the Committee
on Judiciary
AN ACT to amend the civil rights law, in relation to indecent image or
video removal
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "indecent image or video removal act".
3 § 2. The civil rights law is amended by adding a new section 52-a to
4 read as follows:
5 § 52-a. Indecent image or video removal. 1. Legislative intent. The
6 legislature acknowledges a persistent trend where residents of this
7 state have had images or video posted online which depicts the sexual or
8 other intimate parts of such residents, or such residents engaging in
9 sexual conduct which are posted online without their consent. The moti-
10 vations of persons who post such images or video, sometimes also
11 depicted in the image or video, range from pranks, revenge or monetary
12 reward. The posting of such content has led to emotional distress,
13 violence and suicide. The legislature hereby finds that it has become
14 necessary to create a mechanism through which affected parties can bring
15 a civil action against the person who posts the content for the purpose
16 of harassment, annoyance or revenge regardless of whether the original
17 image or video was consensually obtained, and obtain a court order to
18 have such content taken down from the websites and internet service
19 providers that host it unless they have written consent of all parties
20 depicted in the image or video.
21 2. Personal jurisdiction. Any website or internet service provider
22 that hosts or transmits a still or video, viewable in this state, which
23 portrays a resident of this state and depicts the sexual or other inti-
24 mate parts of such resident, or such resident engaging in sexual
25 conduct, without the written consent of such resident shall be subject
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11900-05-3
A. 8200 2
1 to personal jurisdiction in this state to the maximum extent permitted
2 under the United States Constitution.
3 3. Action for damages against a person who posts certain still or
4 video images. Any resident of this state shown in a still or video
5 image that depicts the sexual or other intimate parts of such resident,
6 or such resident engaging in sexual conduct, which is posted on the
7 internet without the consent of such resident shall have a cause of
8 action for damages against the person who posted such image or video on
9 the internet where it was posted for the purpose of harassing, annoying
10 or alarming such resident, regardless of whether or not the original
11 image or video was consensually obtained. In any such action, the
12 finder of fact, in its discretion, may award exemplary damages, in addi-
13 tion to compensatory damages.
14 4. Cause of action to obtain a court order to redact images or video
15 hosted or transmitted without consent. Any resident of this state shown
16 in a still or video image that depicts the sexual or intimate parts of
17 such resident, or such resident engaging in sexual conduct, under
18 circumstances where such image is hosted or transmitted on the internet
19 without the written consent of such resident, may maintain a special
20 proceeding to obtain a court order which will require any website or
21 internet service provider that is subject to personal jurisdiction under
22 subdivision two of this section to permanently redact such image or
23 video.
24 5. Severance clause. If any provision of this section or its applica-
25 tion to any person or circumstance is held invalid, the invalidity shall
26 not affect other provisions or applications of this section which can be
27 given effect without the invalid provision or application, and to this
28 end the provisions of this section are severable.
29 § 3. This act shall take effect immediately.
