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S07211 Summary:

S07211 Actions:

S07211 Committee Votes:

S07211 Floor Votes:

S07211 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         7211--B
 
                               2021-2022 Regular Sessions
 
                    IN SENATE
 
                                      June 7, 2021
                                       ___________
 
        Introduced  by  Sens.  SAVINO, GRIFFO -- read twice and ordered printed,
          and when printed to be committed to the Committee on Rules  --  recom-
          mitted  to  the  Committee  on Codes in accordance with Senate Rule 6,
          sec. 8 -- committee discharged, bill  amended,  ordered  reprinted  as
          amended  and  recommitted  to  said committee -- committee discharged,
          bill amended, ordered reprinted as amended  and  recommitted  to  said
          committee
 
        AN  ACT  to  amend  the  penal  law, in relation to creating the certain
          offenses and provisions related to the  unlawful  dissemination  of  a
          personal  image;  and  to  amend  the civil rights law, in relation to
          creating a private right of action for such offenses
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  This  act  shall be known and may be cited as "Bianca and
     2  Caroline's Law".
     3    § 2. The penal law is amended by adding  three  new  sections  250.70,
     4  250.71, and 250.72 to read as follows:
     5  § 250.70 Unlawful dissemination of a personal image; definitions, appli-
     6             cation.
     7    1. The following definitions shall apply to sections 250.71 and 250.72
     8  of this article:
     9    (a)  "broadcast" means electronically transmitting a visual image with
    10  the intent that it be viewed by a person;
    11    (b) "disseminate" means to give, provide, lend, deliver,  mail,  send,
    12  forward,  transfer  or  transmit, electronically or otherwise to another
    13  person;
    14    (c) "publish" means to: (i) disseminate, as defined in  paragraph  (b)
    15  of  this  subdivision,  with  the  intent  that  such image or images be
    16  disseminated to ten or more persons; (ii) disseminate  with  the  intent
    17  that  such  images  be  sold  by  another  person;  (iii) post, present,
    18  display, exhibit, circulate, advertise or allows access,  electronically
    19  or  otherwise, so as to make an image or images available to the public;
    20  or (iv) disseminate with the intent that an image or images  be  posted,
    21  presented, displayed, exhibited, circulated, advertised or made accessi-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02249-08-2
        S. 7211--B                          2
 
     1  ble, electronically or otherwise and to make such image or images avail-
     2  able to the public.
     3    2.  The following provisions shall apply to sections 250.71 and 250.72
     4  of this article:
     5    (a) The provisions of these sections shall not apply to the following:
     6    (i) the reporting of unlawful conduct;
     7    (ii) the dissemination or publication of an image made  during  lawful
     8  and  common  practices  of law enforcement, legal proceedings or medical
     9  treatment;
    10    (iii) images involving activities in a public setting or activities in
    11  a commercial setting in which legal activities are being conducted; or
    12    (iv) the dissemination or publication of an image made for  a  legiti-
    13  mate public purpose.
    14    (b)  Nothing  in  these  sections  shall  be construed to limit, or to
    15  enlarge, the protections that 47 U.S.C. § 230 confers on an  interactive
    16  computer  service  for  content  provided by another information content
    17  provider, as such terms are defined in 47 U.S.C. § 230.
    18    3. With respect to sections 250.71 and 250.72  of  this  article,  the
    19  provisions of subdivision two of section 235.15 and subdivisions one and
    20  two of section 235.24 of this part shall apply.
    21  §  250.71  Unlawful  dissemination  of  a  personal  image in the second
    22             degree.
    23    A person is guilty of unlawful dissemination of a  personal  image  in
    24  the second degree when, with the intent of degrading or abusing a person
    25  who has been the victim of a crime described in title H of this part, or
    26  otherwise  causing  harm to the emotional, financial or physical welfare
    27  of such victim or such victim's family, or for the actor's own or anoth-
    28  er person's amusement, entertainment or profit, the actor intentionally:
    29    1. (a) creates and disseminates or publishes a still or video image of
    30  such victim, without the victim's consent, in a manner that  has  no  or
    31  minimal cultural or social value; and
    32    (b) the victim is identifiable from the still or video image itself or
    33  from  information displayed in connection with the still or video image;
    34  and
    35    (c) the image depicts the commission of the crime against  the  victim
    36  or  physical injury suffered by the victim as a result of the commission
    37  of the crime; or
    38    2. acting as an agent of the actor who created an image  in  violation
    39  of  subdivision one of this section, he or she knowingly disseminates or
    40  publishes such image.
    41    Unlawful dissemination of a personal image in the second degree  is  a
    42  class B misdemeanor.
    43  § 250.72 Unlawful dissemination of a personal image in the first degree.
    44    A  person  is  guilty of unlawful dissemination of a personal image in
    45  the first degree when he or she commits the offense of unlawful  dissem-
    46  ination of a personal image in the second degree and:
    47    1.  he  or  she  committed,  participated  in  the  commission  of, or
    48  conspired to commit the crime that  resulted  in  such  injury  to  such
    49  victim; or
    50    2.  the  victim  suffered  serious  physical  injury or death which is
    51  depicted in the unlawfully disseminated image.
    52    Unlawful dissemination of a personal image in the first  degree  is  a
    53  class A misdemeanor.
    54    §  3.  The civil rights law is amended by adding a new section 52-d to
    55  read as follows:
        S. 7211--B                          3
 
     1    § 52-d. Private right of action for unlawful dissemination or publica-
     2  tion of a personal image. 1. Any crime victim depicted  in  a  still  or
     3  video  image  which  was  unlawfully disseminated as provided in section
     4  250.71 or 250.72 of the penal law shall have a cause of  action  against
     5  such  individual who disseminated or published such still or video image
     6  without the consent of the person depicted in the image.
     7    2. In any  action  commenced  pursuant  to  subdivision  one  of  this
     8  section,  the  finder  of  fact, in its discretion, may award injunctive
     9  relief, punitive damages,  compensatory  damages  and  reasonable  court
    10  costs and attorneys' fees.
    11    3. This section shall not apply to the following:
    12    a. the reporting of unlawful conduct;
    13    b.  the  dissemination  or  publication  of  an  image made during law
    14  enforcement activities, legal proceedings or medical treatment;
    15    c. images involving activities in a public setting or activities in  a
    16  commercial setting in which legal activities are being conducted; or
    17    d.  the dissemination or publication of an image made for a legitimate
    18  public purpose.
    19    4. Any such crime victim depicted in a still or video image which  was
    20  unlawfully  disseminated  as provided in section 250.71 or 250.72 of the
    21  penal law, or such person's estate, may maintain an  action  or  special
    22  proceeding  for  a court order to require any website that is subject to
    23  personal jurisdiction under subdivision five of this section  to  perma-
    24  nently  remove  such  still or video image; any such court order granted
    25  pursuant to this subdivision may direct removal only as to  images  that
    26  are reasonably within such website's control.
    27    5.  Any  website that hosts or transmits a still or video image, view-
    28  able in this state, which was unlawfully  disseminated  as  provided  in
    29  section  250.71  or 250.72 of the penal law and which image is hosted or
    30  transmitted without the consent of the person  depicted  in  the  image,
    31  shall  be  subject  to  personal  jurisdiction in a civil action in this
    32  state to the maximum extent permitted under the United States  constitu-
    33  tion 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 such image;
    37  or
    38    b. one year from the date the plaintiff or petitioners discovered,  or
    39  reasonably  should have discovered, such dissemination or publication of
    40  such image.
    41    7. Nothing in this section shall be read to require a  prior  criminal
    42  complaint,  prosecution  or  conviction to establish the elements of the
    43  cause of action provided for by this section.
    44    8. The provisions of this section are in addition to,  but  shall  not
    45  supersede, any other rights or remedies available in law or equity.
    46    9.  If  any provision of this section or its application to any person
    47  or circumstance is held invalid, the invalidity shall not  affect  other
    48  provisions  or  applications  of  this section which can be given effect
    49  without the invalid provision  or  application,  and  to  this  end  the
    50  provisions of this section are severable.
    51    10.  Nothing  in  this  section  shall  be  construed  to limit, or to
    52  enlarge, the protections that 47 U.S.C. § 230 confers on an  interactive
    53  computer  service  for  content  provided by another information content
    54  provider, as such terms are defined in 47 U.S.C. § 230.
    55    § 4. This act shall take effect on the sixtieth  day  after  it  shall
    56  have become a law.