STATE OF NEW YORK
________________________________________________________________________
2221
2023-2024 Regular Sessions
IN SENATE
January 19, 2023
___________
Introduced by Sen. MARTINEZ -- read twice and ordered printed, and when
printed to be committed to the Committee on Rules
AN ACT to amend the penal law, in relation to the certain offenses and
provisions related to the unlawful dissemination of a personal image;
to amend the civil rights law, in relation to the private right of
action for such offenses; and to repeal certain provisions of the
penal law relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 250.72 of the penal law, as added by a chapter of
2 the laws of 2022 amending the penal law relating to creating certain
3 offenses and provisions related to the unlawful dissemination of a
4 personal image; and amending the civil rights law relating to creating a
5 private right of action for such offenses, as proposed in legislative
6 bills numbers S. 7211-B and A. 1121-C, is REPEALED.
7 § 2. Sections 250.70 and 250.71 of the penal law, as added by a chap-
8 ter of the laws of 2022 amending the penal law relating to creating
9 certain offenses and provisions related to the unlawful dissemination of
10 a personal image; and amending the civil rights law relating to creating
11 a private right of action for such offenses, as proposed in legislative
12 bills numbers S. 7211-B and A. 1121-C, are amended to read as follows:
13 § 250.70 Unlawful dissemination of a personal image; definitions, appli-
14 cation.
15 1. The following definitions shall apply to [sections] section 250.71
16 [and 250.72] of this article:
17 (a) "broadcast" means electronically transmitting a visual image with
18 the intent that it be viewed by a person;
19 (b) "disseminate" means to give, provide, lend, deliver, mail, send,
20 forward, transfer or transmit, electronically or otherwise to another
21 person;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04029-01-3
S. 2221 2
1 (c) "publish" means to: (i) disseminate, as defined in paragraph (b)
2 of this subdivision, with the intent that such image or images be
3 disseminated to ten or more persons; (ii) disseminate with the intent
4 that such images be sold by another person; (iii) post, present,
5 display, exhibit, circulate, advertise or allows access, electronically
6 or otherwise, so as to make an image or images available to the public;
7 or (iv) disseminate with the intent that an image or images be posted,
8 presented, displayed, exhibited, circulated, advertised or made accessi-
9 ble, electronically or otherwise and to make such image or images avail-
10 able to the public[.];
11 (d) "family" means a parent or guardian, sibling, spouse, or child of
12 a person depicted in an image disseminated in violation of section
13 250.71 of this article.
14 (e) "social media platform" means a website, online or mobile applica-
15 tion, or online service that is designed primarily to enable a user to
16 generate or share content that can be viewed by other users on the plat-
17 form or to interact with other user-generated content on such platform.
18 "Social media platform" does not include a website, online or mobile
19 application, or online service that is designed primarily to enable a
20 user to access content on the platform that is not user-generated and is
21 preselected or organized by the provider; or a website, online or mobile
22 application, or online service that includes any chat, comment, or other
23 interactive functionality that is incidental to the provision of such
24 website, application, or service.
25 2. The following provisions shall apply to [sections] section 250.71
26 [and 250.72] of this article:
27 (a) The provisions of [these sections] section 270.71 of this article
28 shall not apply to the following:
29 (i) the reporting of suspected unlawful conduct to law enforcement;
30 (ii) the dissemination or publication of an image made [during lawful
31 and common practices of] in the course of official law enforcement
32 duties, legal proceedings or criminal prosecution, or medical treatment;
33 or
34 (iii) [images involving activities in a public setting or activities
35 in a commercial setting in which legal activities are being conducted;
36 or
37 (iv)] the dissemination or publication of an image made for a legiti-
38 mate public [purpose] discourse concerning local, national, or worldwide
39 events or other matters of public concern or public interest or affect-
40 ing the public welfare; any work of public interest, educational or
41 newsworthy value, including comment, criticism, parody or satire, and
42 works of entertainment, regardless of the degree of fictionalization; or
43 an advertisement or commercial announcement for any of the foregoing
44 works.
45 (b) Nothing in these sections shall be construed to limit, or to
46 enlarge, the protections that 47 U.S.C. § 230 confers on an interactive
47 computer service for content provided by another information content
48 provider, as such terms are defined in 47 U.S.C. § 230.
49 3. With respect to [sections] section 250.71 [and 250.72] of this
50 article, the provisions of subdivision two of section 235.15 and subdi-
51 visions one and two of section 235.24 of this part shall apply.
52 § 250.71 Unlawful dissemination of a personal image [in the second
53 degree].
54 A person is guilty of unlawful dissemination of a personal image [in
55 the second degree] when, with the intent of degrading or abusing a
56 person who has been the victim of a crime described in title H of this
S. 2221 3
1 part, or otherwise causing harm to the emotional, financial or physical
2 welfare of such victim or such victim's family, [or for the actor's own
3 or another person's amusement, entertainment or profit, the actor] the
4 person intentionally:
5 1. (a) creates and disseminates or publishes a still or video image of
6 such victim on a social media platform, without the victim's consent, in
7 a manner that has no or minimal cultural or social value; [and]
8 (b) the victim is identifiable from the still or video image itself or
9 from information displayed in connection with the still or video image;
10 [and]
11 (c) [the image depicts the commission of the crime against the victim
12 or physical injury suffered by the victim as a result of the commission
13 of the crime; or] the victim suffered physical injury as a result of a
14 sex offense as defined by article one hundred thirty of this part, seri-
15 ous physical injury as a result of any non-sex offense, or death, and
16 this injury or death is depicted in the image; and
17 (d) the actor committed, participated in the commission of, or
18 conspired to commit the crime that resulted in such injury to such
19 victim; or
20 2. acting as an agent of the actor who created an image in violation
21 of subdivision one of this section, he or she knowingly disseminates or
22 publishes such image.
23 Unlawful dissemination of a personal image in the second degree is a
24 class [B] A misdemeanor.
25 § 3. Section 52-d of the civil rights law, as added by a chapter of
26 the laws of 2022 amending the penal law relating to creating certain
27 offenses and provisions related to the unlawful dissemination of a
28 personal image; and amending the civil rights law relating to creating a
29 private right of action for such offenses, as proposed in legislative
30 bills numbers S. 7211-B and A. 1121-C, is amended to read as follows:
31 § 52-d. Private right of action for unlawful dissemination or publica-
32 tion of a personal image. 1. Any crime victim depicted in a still or
33 video image which was unlawfully disseminated as provided in section
34 250.71 [or 250.72] of the penal law shall have a cause of action against
35 such individual who disseminated or published such still or video image
36 without the consent of the person depicted in the image in violation of
37 section 250.71 of the penal law.
38 2. In any action commenced pursuant to subdivision one of this
39 section, the finder of fact, in its discretion, may award injunctive
40 relief, punitive damages, compensatory damages and reasonable court
41 costs and attorneys' fees.
42 3. This section shall not apply to the following:
43 a. the reporting of suspected unlawful conduct to law enforcement;
44 b. the dissemination or publication of an image made [during] in the
45 course of official law enforcement [activities] duties, legal
46 proceedings or criminal prosecution, or medical treatment; or
47 c. [images involving activities in a public setting or activities in a
48 commercial setting in which legal activities are being conducted; or
49 d.] the dissemination or publication of an image made for a legitimate
50 public [purpose] discourse concerning local, national, or worldwide
51 events or other matters of public concern or public interest or affect-
52 ing the public welfare; any work of public interest, educational or
53 newsworthy value, including comment, criticism, parody or satire, and
54 works of entertainment, regardless of the degree of fictionalization; or
55 an advertisement or commercial announcement for any of the foregoing
56 works.
S. 2221 4
1 4. Any such crime victim depicted in a still or video image which was
2 unlawfully disseminated as provided in section 250.71 [or 250.72] of the
3 penal law, or such person's estate, may maintain an action or special
4 proceeding for a court order to require any [website] social media plat-
5 form that is subject to personal jurisdiction under subdivision five of
6 this section to permanently remove such still or video image; any such
7 court order granted pursuant to this subdivision may direct removal only
8 as to images that are reasonably within such [website's] social media
9 platform's control.
10 5. [Any website that hosts or transmits a still or video image, view-
11 able in this state, which was unlawfully disseminated as provided in
12 section 250.71 or 250.72 of the penal law and which image is hosted or
13 transmitted without the consent of the person depicted in the image,
14 shall be subject to personal jurisdiction in a civil action in this
15 state to the maximum extent permitted under the United States constitu-
16 tion and federal law.
17 6.] A cause of action or special proceeding under this section shall
18 be commenced the later of either:
19 a. three years after the dissemination or publication of such image;
20 or
21 b. one year from the date the plaintiff or petitioners discovered, or
22 reasonably should have discovered, such dissemination or publication of
23 such image.
24 [7.] 6. Nothing in this section shall be read to require a prior crim-
25 inal complaint, prosecution or conviction to establish the elements of
26 the cause of action provided for by this section.
27 [8.] 7. The provisions of this section are in addition to, but shall
28 not supersede, any other rights or remedies available in law or equity.
29 [9.] 8. If any provision of this section or its application to any
30 person or circumstance is held invalid, the invalidity shall not affect
31 other provisions or applications of this section which can be given
32 effect without the invalid provision or application, and to this end the
33 provisions of this section are severable.
34 [10.] 9. Nothing in this section shall be construed to limit, or to
35 enlarge, the protections that 47 U.S.C. § 230 confers on an interactive
36 computer service for content provided by another information content
37 provider, as such terms are defined in 47 U.S.C. § 230.
38 § 4. This act shall take effect on the same date and in the same
39 manner as a chapter of the laws of 2022 amending the penal law relating
40 to creating certain offenses and provisions related to the unlawful
41 dissemination of a personal image; and amending the civil rights law
42 relating to creating a private right of action for such offenses, as
43 proposed in legislative bills numbers S. 7211-B and A. 1121-C, takes
44 effect.
