Establishes the crime of aggravated harassment by means of electronic or digital communication; provides for a private right of action for the unlawful dissemination or publication of deep fakes, which are digitized images which are altered to incorporate a person's face or their identifiable body part onto an image and such image depicts a pornographic or lewd sex act or graphic violence.
STATE OF NEW YORK
________________________________________________________________________
5583
2023-2024 Regular Sessions
IN SENATE
March 8, 2023
___________
Introduced by Sen. SCARCELLA-SPANTON -- read twice and ordered printed,
and when printed to be committed to the Committee on Codes
AN ACT to amend the penal law, in relation to establishing the crime of
aggravated harassment by means of electronic or digital communication;
and to amend the civil rights law, in relation to providing for a
private right of action for the unlawful dissemination or publication
of deep fakes
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 240.80 to
2 read as follows:
3 § 240.80 Aggravated harassment by means of electronic or digital commu-
4 nication.
5 1. A person is guilty of aggravated harassment by means of electronic
6 or digital communication when, with the intent to harass, annoy, threat-
7 en or alarm another person, he or she produces, distributes, publishes
8 or broadcasts material that contains a picture, photograph or image of a
9 person or persons or a deep fake into which the image of another person
10 or persons is superimposed as a deep fake.
11 2. For purposes of this section, "deep fake" means a digitized image
12 that is altered to incorporate a person's face or their identifiable
13 body part onto such image, and such image is any printed material,
14 advertisement, movie, video, communication or computer image that
15 depicts a pornographic or lewd sex act as defined pursuant to section
16 245.00 or 130.00 of this part, or graphic violence, that is published
17 without the explicit written permission of the individual or individuals
18 depicted, and for no other legitimate purpose other than to harass,
19 annoy, threaten or alarm another person.
20 Aggravated harassment by means of electronic or digital communication
21 shall be a class A misdemeanor.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07743-01-3
S. 5583 2
1 § 2. Section 52-b of the civil rights law, as added by chapter 109 of
2 the laws of 2019, is amended to read as follows:
3 § 52-b. Private right of action for unlawful dissemination or publica-
4 tion of an intimate image or deep fake. 1. Any person depicted in a
5 still or video image, regardless of whether or not the original still or
6 video image was consensually obtained, shall have a cause of action
7 against an individual who, for the purpose of harassing, annoying or
8 alarming such person, disseminated or published, or threatened to
9 disseminate or publish, such still or video image, where such image or
10 deep fake:
11 a. was a deep fake or was taken when such person had a reasonable
12 expectation that [the] their image would remain private; and
13 b. depicts (i) an unclothed or exposed intimate part of such person;
14 or (ii) such person engaging in sexual conduct, as defined in subdivi-
15 sion ten of section 130.00 of the penal law, with another person; and
16 c. was disseminated or published, or threatened to be disseminated or
17 published, without the consent of such person.
18 2. In any action commenced pursuant to subdivision one of this
19 section, the finder of fact, in its discretion, may award injunctive
20 relief, punitive damages, compensatory damages and reasonable court
21 costs and attorney's fees.
22 3. This section shall not apply to the following:
23 a. the reporting of unlawful conduct;
24 b. dissemination or publication of an intimate still [or], video image
25 or deep fake made during lawful and common practices of law enforcement,
26 legal proceedings or medical treatment;
27 c. images involving voluntary exposure in a public or commercial
28 setting; or
29 d. dissemination or publication of an intimate still [or], video image
30 or deep fake made for a legitimate public purpose.
31 4. Any person depicted in a still or video image or deep fake that
32 depicts an unclothed or exposed intimate part of such person, or such
33 person engaging in sexual conduct as defined in subdivision ten of
34 section 130.00 of the penal law with another person, which is dissem-
35 inated or published without the consent of such person and where such
36 person had a reasonable expectation that the image would remain private,
37 may maintain an action or special proceeding for a court order to
38 require any website that is subject to personal jurisdiction under
39 subdivision five of this section to permanently remove such still [or],
40 video image or deep fake; any such court order granted pursuant to this
41 subdivision may direct removal only as to images that are reasonably
42 within such website's control.
43 5. a. Any website that hosts or transmits a still or video image or
44 deep fake, viewable in this state, taken or produced under circumstances
45 where the person depicted had a reasonable expectation that the image
46 would remain private, which depicts:
47 (i) an unclothed or exposed intimate part, as defined in section
48 245.15 of the penal law, of a resident of this state; or
49 (ii) a resident of this state engaging in sexual conduct as defined in
50 subdivision ten of section 130.00 of the penal law with another person;
51 and
52 b. Such still [or], video image or deep fake is hosted or transmitted
53 without the consent of such resident of this state, shall be subject to
54 personal jurisdiction in a civil action in this state to the maximum
55 extent permitted under the United States constitution and federal law.
S. 5583 3
1 6. A cause of action or special proceeding under this section shall be
2 commenced the later of either:
3 a. three years after the dissemination or publication of an image; or
4 b. one year from the date a person discovers, or reasonably should
5 have discovered, the dissemination or publication of such image.
6 6-a. For purposes of this section, the following terms shall have the
7 following meanings:
8 a. "Individual" means a person, corporation, business entity, firm,
9 association, committee or organization conducting business within the
10 state of New York.
11 b. "Deep fake" means a digitized image that is altered to incorporate
12 a person's face or their identifiable body part onto such image, and
13 such image is any printed material, advertisement, movie, video, commu-
14 nication or computer image that depicts a pornographic or lewd sex act
15 as defined pursuant to section 245.00 or 130.00 of the penal law, or
16 graphic violence, that is published without the explicit written permis-
17 sion of the individual or individuals depicted, and for no other legiti-
18 mate purpose other than to harass, annoy, threaten or alarm another
19 person.
20 7. Nothing herein shall be read to require a prior criminal complaint,
21 prosecution or conviction to establish the elements of the cause of
22 action provided for by this section.
23 8. The provisions of this section are in addition to, but shall not
24 supersede, any other rights or remedies available in law or equity.
25 9. If any provision of this section or its application to any person
26 or circumstance is held invalid, the invalidity shall not affect other
27 provisions or applications of this section which can be given effect
28 without the invalid provision or application, and to this end the
29 provisions of this section are severable.
30 10. Nothing in this section shall be construed to limit, or to
31 enlarge, the protections that 47 U.S.C § 230 confers on an interactive
32 computer service for content provided by another information content
33 provider, as such terms are defined in 47 U.S.C. § 230.
34 § 3. Section 52-c of the civil rights law, as added by chapter 304 of
35 the laws of 2020, is amended to read as follows:
36 § 52-c. Private right of action for unlawful dissemination or publica-
37 tion of a sexually explicit depiction or deep fake of an individual. 1.
38 For the purposes of this section:
39 a. "depicted individual" means an individual who appears, as a result
40 of digitization, to be giving a performance they did not actually
41 perform or to be performing in a performance that was actually performed
42 by the depicted individual but was subsequently altered to be in
43 violation of this section.
44 b. "digitization" means to realistically depict the nude body parts of
45 another human being as the nude body parts of the depicted individual,
46 computer-generated nude body parts as the nude body parts of the
47 depicted individual or the depicted individual engaging in sexual
48 conduct, as defined in subdivision ten of section 130.00 of the penal
49 law, in which the depicted individual did not engage.
50 c. "individual" means a natural person.
51 d. "person" means a human being or legal entity.
52 e. "sexually explicit material" means any portion of an audio visual
53 work, or deep fake, that shows the depicted individual performing in the
54 nude, meaning with an unclothed or exposed intimate part, as defined in
55 section 245.15 of the penal law, or appearing to engage in, or being
S. 5583 4
1 subjected to, sexual conduct, as defined in subdivision ten of section
2 130.00 of the penal law.
3 f. "deep fake" means a digitized image that is altered to incorporate
4 an individual's face or their identifiable body part onto such image,
5 and such image is any printed material, advertisement, movie, video,
6 communication or computer image that depicts a pornographic or lewd sex
7 act as defined pursuant to section 245.00 or 130.00 of the penal law, or
8 graphic violence, that is published without the explicit written permis-
9 sion of the individual or individuals depicted, and for no other legiti-
10 mate purpose other than to harass, annoy, threaten or alarm another
11 person.
12 2. a. A depicted individual shall have a cause of action against a
13 person who, discloses, disseminates, produces or publishes sexually
14 explicit material or a deep fake related to the depicted individual, and
15 the person knows or reasonably should have known the depicted individual
16 in that material did not consent to its creation, disclosure, dissem-
17 ination, production or publication.
18 b. It shall not be a defense to an action under this section that
19 there is a disclaimer in the sexually explicit material that communi-
20 cates that the inclusion of the depicted individual in the sexually
21 explicit material was unauthorized or that the depicted individual did
22 not participate in the creation or development of the material.
23 3. a. A depicted individual may only consent to the creation, disclo-
24 sure, dissemination, production, or publication of sexually explicit
25 material or a deep fake by knowingly and voluntarily signing an agree-
26 ment written in plain language that includes a general description of
27 the sexually explicit material and the audiovisual work in which it will
28 be incorporated.
29 b. A depicted individual may rescind consent by delivering written
30 notice within three business days from the date consent was given to the
31 person in whose favor consent was made, unless one of the following
32 requirements is satisfied:
33 i. the depicted individual is given at least three business days to
34 review the terms of the agreement before signing it; or
35 ii. if the depicted individual is represented, the attorney, talent
36 agent, or personal manager authorized to represent the depicted individ-
37 ual provides additional written approval of the signed agreement.
38 4. a. A person is not liable under this section if:
39 i. the person discloses, disseminates or publishes the sexually
40 explicit material in the course of reporting unlawful activity, exercis-
41 ing the person's law enforcement duties, or hearings, trials or other
42 legal proceedings; or
43 ii. the sexually explicit material is a matter of legitimate public
44 concern, a work of political or newsworthy value or similar work, or
45 commentary, criticism or disclosure that is otherwise protected by the
46 constitution of this state or the United States; provided that sexually
47 explicit material shall not be considered of newsworthy value solely
48 because the depicted individual is a public figure.
49 5. In any action commenced pursuant to this section, the finder of
50 fact, in its discretion, may award injunctive relief, punitive damages,
51 compensatory damages, and reasonable court costs and attorney's fees.
52 6. A cause of action or special proceeding under this section shall be
53 commenced the later of either:
54 a. three years after the dissemination or publication of sexually
55 explicit material; or
S. 5583 5
1 b. one year from the date a person discovers, or reasonably should
2 have discovered, the dissemination or publication of such sexually
3 explicit material.
4 7. Nothing in this section shall be read to require a prior criminal
5 complaint, prosecution or conviction to establish the elements of the
6 cause of action provided for in this section.
7 8. The provisions of this section including the remedies are in addi-
8 tion to, and shall not supersede, any other rights or remedies available
9 in law or equity.
10 9. If any provision of this section or its application to any person
11 or circumstance is held invalid, the invalidity shall not affect other
12 provisions or applications of this section which can be given effect
13 without the invalid provision or application, and to this end the
14 provisions of this section are severable.
15 10. Nothing in this section shall be construed to limit, or to
16 enlarge, the protections that 47 U.S.C. § 230 confers on an interactive
17 computer service for content provided by another information content
18 provider, as such terms are defined in 47 U.S.C. § 230.
19 § 4. This act shall take effect immediately.
