S01719 Summary:

BILL NOS01719C
 
SAME ASSAME AS A05981
 
SPONSORMARTINEZ
 
COSPNSRBOYLE, BIAGGI, BRESLIN, FUNKE, GIANARIS, GOUNARDES, HOYLMAN, KAMINSKY, KAPLAN, KRUEGER, LIU, RAMOS, THOMAS
 
MLTSPNSR
 
Add 245.15, Pen L; amd 530.11, CP L; amd 812, Fam Ct Act; add 52-b, Civ Rts L
 
Establishes the crime of unlawful dissemination or publication of an intimate image and creates a private right of action for such crime.
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S01719 Actions:

BILL NOS01719C
 
01/15/2019REFERRED TO CODES
01/24/2019AMEND AND RECOMMIT TO CODES
01/24/2019PRINT NUMBER 1719A
01/28/20191ST REPORT CAL.61
01/29/20192ND REPORT CAL.
02/04/2019ADVANCED TO THIRD READING
02/05/2019AMENDED ON THIRD READING 1719B
02/26/2019AMENDED ON THIRD READING 1719C
02/28/2019SUBSTITUTED BY A5981
 A05981 AMEND= Braunstein
 02/25/2019referred to codes
 02/27/2019reported referred to rules
 02/27/2019reported
 02/27/2019rules report cal.34
 02/27/2019ordered to third reading rules cal.34
 02/28/2019passed assembly
 02/28/2019delivered to senate
 02/28/2019REFERRED TO CODES
 02/28/2019SUBSTITUTED FOR S1719C
 02/28/20193RD READING CAL.61
 02/28/2019PASSED SENATE
 02/28/2019RETURNED TO ASSEMBLY
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S01719 Committee Votes:

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S01719 Floor Votes:

There are no votes for this bill in this legislative session.
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S01719 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         1719--C
            Cal. No. 61
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                    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:
 
     1    Section  1. The penal law is amended by adding a new section 245.15 to
     2  read as follows:
     3  § 245.15 Unlawful dissemination or publication of an intimate image.
     4    1. A person is guilty of unlawful dissemination or publication  of  an
     5  intimate image when:
     6    (a)  with intent to cause harm to the emotional, financial or physical
     7  welfare of another person,  he  or  she  intentionally  disseminates  or
     8  publishes  a still or video image of such other person, who is identifi-
     9  able from the still or video image itself or from information  displayed
    10  in connection with the still or video image, without such other person's
    11  consent, which depicts:
    12    (i) an unclothed or exposed intimate part of such other person; or
    13    (ii) such other person engaging in sexual conduct as defined in subdi-
    14  vision ten of section 130.00 of this chapter with another person; and
    15    (b)  such  still or video image was taken under circumstances when the
    16  person depicted had a reasonable expectation that the image would remain
    17  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
 
     1  depicted  intended  for  the  still  or  video  image to remain private,
     2  regardless of whether the actor was present  when  the  still  or  video
     3  image was taken.
     4    2.  For purposes of this section "intimate part" means the naked geni-
     5  tals, pubic area, anus or female nipple of the person.
     6    2-a. For purposes of this section "disseminate"  and  "publish"  shall
     7  have the same meaning as defined in section 250.40 of this title.
     8    3. This section shall not apply to the following:
     9    (a) the reporting of unlawful conduct;
    10    (b)  dissemination  or  publication  of  an intimate image made during
    11  lawful and common practices of law  enforcement,  legal  proceedings  or
    12  medical treatment;
    13    (c)  images  involving  voluntary  exposure  in a public or commercial
    14  setting; or
    15    (d) dissemination or publication of  an  intimate  image  made  for  a
    16  legitimate public purpose.
    17    4. Nothing in this section shall be construed to limit, or to enlarge,
    18  the  protections  that 47 U.S.C § 230 confers on an interactive computer
    19  service for content provided by another information content provider, as
    20  such terms are defined in 47 U.S.C. § 230.
    21    Unlawful dissemination or publication of an intimate image is a  class
    22  A misdemeanor.
    23    §  2.  The opening paragraph of subdivision 1 of section 530.11 of the
    24  criminal procedure law, as amended by section 4 of part NN of chapter 55
    25  of the laws of 2018, is amended to read as follows:
    26    The family court and the criminal courts shall have concurrent  juris-
    27  diction  over  any  proceeding  concerning  acts  which would constitute
    28  disorderly conduct, unlawful dissemination or publication of an intimate
    29  image, harassment in the first degree, harassment in the second  degree,
    30  aggravated  harassment in the second degree, sexual misconduct, forcible
    31  touching, sexual abuse in the third degree, sexual abuse in  the  second
    32  degree  as  set  forth in subdivision one of section 130.60 of the penal
    33  law, stalking in the first degree, stalking in the second degree, stalk-
    34  ing in the  third  degree,  stalking  in  the  fourth  degree,  criminal
    35  mischief,  menacing  in the second degree, menacing in the third degree,
    36  reckless endangerment, strangulation in the first degree,  strangulation
    37  in  the second degree, criminal obstruction of breathing or blood circu-
    38  lation, assault in the second degree, assault in the  third  degree,  an
    39  attempted assault, identity theft in the first degree, identity theft in
    40  the  second degree, identity theft in the third degree, grand larceny in
    41  the fourth degree, grand larceny in the third degree,  coercion  in  the
    42  second  degree  or coercion in the third degree as set forth in subdivi-
    43  sions one, two and three of section 135.60  of  the  penal  law  between
    44  spouses  or  former  spouses,  or  between  parent  and child or between
    45  members of the same family or household except that  if  the  respondent
    46  would not be criminally responsible by reason of age pursuant to section
    47  30.00  of  the  penal  law,  then  the family court shall have exclusive
    48  jurisdiction  over  such  proceeding.  Notwithstanding  a  complainant's
    49  election  to  proceed  in  family court, the criminal court shall not be
    50  divested of jurisdiction to hear a family offense proceeding pursuant to
    51  this  section.  For  purposes  of  this  section,  "disorderly  conduct"
    52  includes disorderly conduct not in a public place.  For purposes of this
    53  section,  "members  of  the  same family or household" with respect to a
    54  proceeding in the criminal courts shall mean the following:

        S. 1719--C                          3
 
     1    § 3. The opening paragraph of subdivision 1  of  section  812  of  the
     2  family  court  act,  as amended by section 5 of part NN of chapter 55 of
     3  the laws of 2018, is amended to read as follows:
     4    The  family court and the criminal courts shall have concurrent juris-
     5  diction over any  proceeding  concerning  acts  which  would  constitute
     6  disorderly conduct, unlawful dissemination or publication of an intimate
     7  image,  harassment in the first degree, harassment in the second degree,
     8  aggravated harassment in the second degree, sexual misconduct,  forcible
     9  touching,  sexual  abuse in the third degree, sexual abuse in the second
    10  degree as set forth in subdivision one of section 130.60  of  the  penal
    11  law, stalking in the first degree, stalking in the second degree, stalk-
    12  ing  in  the  third  degree,  stalking  in  the  fourth degree, criminal
    13  mischief, menacing in the second degree, menacing in the  third  degree,
    14  reckless endangerment, criminal obstruction of breathing or blood circu-
    15  lation,  strangulation  in the second degree, strangulation in the first
    16  degree, assault in the second degree, assault in the  third  degree,  an
    17  attempted assault, identity theft in the first degree, identity theft in
    18  the  second degree, identity theft in the third degree, grand larceny in
    19  the fourth degree, grand larceny in the third degree,  coercion  in  the
    20  second  degree  or coercion in the third degree as set forth in subdivi-
    21  sions one, two and three of section 135.60  of  the  penal  law  between
    22  spouses  or  former  spouses,  or  between  parent  and child or between
    23  members of the same family or household except that  if  the  respondent
    24  would not be criminally responsible by reason of age pursuant to section
    25  30.00  of  the  penal  law,  then  the family court shall have exclusive
    26  jurisdiction  over  such  proceeding.  Notwithstanding  a  complainant's
    27  election  to  proceed  in  family court, the criminal court shall not be
    28  divested of jurisdiction to hear a family offense proceeding pursuant to
    29  this section. In any proceeding pursuant to this article, a court  shall
    30  not  deny  an  order of protection, or dismiss a petition, solely on the
    31  basis that the acts or events alleged are not relatively contemporaneous
    32  with the date of the petition, the conclusion of the fact-finding or the
    33  conclusion of the dispositional hearing. For purposes of  this  article,
    34  "disorderly  conduct" includes disorderly conduct not in a public place.
    35  For purposes of this article, "members of the same family or  household"
    36  shall mean the following:
    37    §  4.  The civil rights law is amended by adding a new section 52-b to
    38  read as follows:
    39    § 52-b. Private right of action for unlawful dissemination or publica-
    40  tion of an intimate image. 1.  Any person depicted in a still  or  video
    41  image,  regardless  of  whether or not the original still or video image
    42  was consensually obtained, shall have a cause of action against an indi-
    43  vidual who, for the purpose of  harassing,  annoying  or  alarming  such
    44  person,  disseminated  or  published,  or  threatened  to disseminate or
    45  publish, such still or video image, where such image:
    46    a. was taken when such person had a reasonable  expectation  that  the
    47  image would remain private; and
    48    b.  depicts  (i) an unclothed or exposed intimate part of such person;
    49  or (ii) such person engaging in sexual conduct, as defined  in  subdivi-
    50  sion ten of section 130.00 of the penal law, with another person; and
    51    c.  was disseminated or published, or threatened to be disseminated or
    52  published, without the consent of such person.
    53    2. In any  action  commenced  pursuant  to  subdivision  one  of  this
    54  section,  the  finder  of  fact, in its discretion, may award injunctive
    55  relief, punitive damages,  compensatory  damages  and  reasonable  court
    56  costs and attorney's fees.

        S. 1719--C                          4
 
     1    3. This section shall not apply to the following:
     2    a. the reporting of unlawful conduct;
     3    b.  dissemination  or  publication of an intimate still or video image
     4  made during lawful  and  common  practices  of  law  enforcement,  legal
     5  proceedings or medical treatment;
     6    c.  images  involving  voluntary  exposure  in  a public or commercial
     7  setting; or
     8    d. dissemination or publication of an intimate still  or  video  image
     9  made for a legitimate public purpose.
    10    4.  Any  person  depicted  in  a  still or video image that depicts an
    11  unclothed or exposed intimate part of such person, or such person engag-
    12  ing in sexual conduct as defined in subdivision ten of section 130.00 of
    13  the penal law with another person, which is  disseminated  or  published
    14  without  the  consent of such person and where such person had a reason-
    15  able expectation that the image would remain private,  may  maintain  an
    16  action  or  special  proceeding for a court order to require any website
    17  that is subject to personal jurisdiction under subdivision five of  this
    18  section  to permanently remove such still or video image; any such court
    19  order granted pursuant to this subdivision may direct removal only as to
    20  images that are reasonably within such website's control.
    21    5. a. Any website that hosts or transmits  a  still  or  video  image,
    22  viewable  in  this  state,  taken  under  circumstances where the person
    23  depicted had a  reasonable  expectation  that  the  image  would  remain
    24  private, which depicts:
    25    (i)  an  unclothed  or  exposed  intimate  part, as defined in section
    26  245.15 of the penal law, of a resident of this state; or
    27    (ii) a resident of this state engaging in sexual conduct as defined in
    28  subdivision ten of section 130.00 of the penal law with another  person;
    29  and
    30    b.  Such  still  or  video  image is hosted or transmitted without the
    31  consent of such resident of this state, shall  be  subject  to  personal
    32  jurisdiction  in  a  civil  action  in  this state to the maximum extent
    33  permitted under the United States constitution and federal law.
    34    6. A cause of action or special proceeding under this section shall be
    35  commenced the later of either:
    36    a. three years after the dissemination or publication of an image; or
    37    b. one year from the date a person  discovers,  or  reasonably  should
    38  have discovered, the dissemination or publication of such image.
    39    7. Nothing herein shall be read to require a prior criminal complaint,
    40  prosecution  or  conviction  to  establish  the elements of the cause of
    41  action provided for by this section.
    42    8. The provisions of this section are in addition to,  but  shall  not
    43  supersede, any other rights or remedies available in law or equity.
    44    9.  If  any provision of this section or its application to any person
    45  or circumstance is held invalid, the invalidity shall not  affect  other
    46  provisions  or  applications  of  this section which can be given effect
    47  without the invalid provision  or  application,  and  to  this  end  the
    48  provisions of this section are severable.
    49    10.  Nothing  in  this  section  shall  be  construed  to limit, or to
    50  enlarge, the protections that 47 U.S.C § 230 confers on  an  interactive
    51  computer  service  for  content  provided by another information content
    52  provider, as such terms are defined in 47 U.S.C. § 230.
    53    § 5. This act shall take effect on the sixtieth  day  after  it  shall
    54  have become a law.
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