|SAME AS||No same as|
|Add S52-a, Civ Rts L|
|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.|
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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.
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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. LBD11900-05-3A. 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.