S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5981
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 25, 2019
                                ___________
 
 Introduced  by  M.  of  A.  BRAUNSTEIN,  GUNTHER,  WEPRIN, PAULIN, OTIS,
   BUTTENSCHON, M. L. MILLER -- read once and referred to  the  Committee
   on Codes
 
 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:
 
   Section 1. The penal law is amended by adding a new section 245.15  to
 read as follows:
 § 245.15 UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE.
   1.  A  PERSON IS GUILTY OF UNLAWFUL DISSEMINATION OR PUBLICATION OF AN
 INTIMATE IMAGE WHEN:
   (A) WITH INTENT TO CAUSE HARM TO THE EMOTIONAL, FINANCIAL OR  PHYSICAL
 WELFARE  OF  ANOTHER  PERSON,  HE  OR  SHE INTENTIONALLY DISSEMINATES OR
 PUBLISHES A STILL OR VIDEO IMAGE OF SUCH OTHER PERSON, WHO IS  IDENTIFI-
 ABLE  FROM THE STILL OR VIDEO IMAGE ITSELF OR FROM INFORMATION DISPLAYED
 IN CONNECTION WITH THE STILL OR VIDEO IMAGE, WITHOUT SUCH OTHER PERSON'S
 CONSENT, WHICH DEPICTS:
   (I) AN UNCLOTHED OR EXPOSED INTIMATE PART OF SUCH OTHER PERSON; OR
   (II) SUCH OTHER PERSON ENGAGING IN SEXUAL CONDUCT AS DEFINED IN SUBDI-
 VISION TEN OF SECTION 130.00 OF THIS CHAPTER WITH ANOTHER PERSON; AND
   (B) SUCH STILL OR VIDEO IMAGE WAS TAKEN UNDER CIRCUMSTANCES  WHEN  THE
 PERSON DEPICTED HAD A REASONABLE EXPECTATION THAT THE IMAGE WOULD REMAIN
 PRIVATE  AND  THE  ACTOR KNEW OR REASONABLY SHOULD HAVE KNOWN THE PERSON
 DEPICTED INTENDED FOR THE  STILL  OR  VIDEO  IMAGE  TO  REMAIN  PRIVATE,
 REGARDLESS  OF  WHETHER  THE  ACTOR  WAS PRESENT WHEN THE STILL OR VIDEO
 IMAGE WAS TAKEN.
   2. FOR PURPOSES OF THIS SECTION "INTIMATE PART" MEANS THE NAKED  GENI-
 TALS, PUBIC AREA, ANUS OR FEMALE NIPPLE OF THE PERSON.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD06276-14-9
              

 A. 5981                             2
 
   2-A.  FOR  PURPOSES  OF THIS SECTION "DISSEMINATE" AND "PUBLISH" SHALL
 HAVE THE SAME MEANING AS DEFINED IN SECTION 250.40 OF THIS TITLE.
   3. THIS SECTION SHALL NOT APPLY TO THE FOLLOWING:
   (A) THE REPORTING OF UNLAWFUL CONDUCT;
   (B)  DISSEMINATION  OR  PUBLICATION  OF  AN INTIMATE IMAGE MADE DURING
 LAWFUL AND COMMON PRACTICES OF LAW  ENFORCEMENT,  LEGAL  PROCEEDINGS  OR
 MEDICAL TREATMENT;
   (C)  IMAGES  INVOLVING  VOLUNTARY  EXPOSURE  IN A PUBLIC OR COMMERCIAL
 SETTING; OR
   (D) DISSEMINATION OR PUBLICATION OF  AN  INTIMATE  IMAGE  MADE  FOR  A
 LEGITIMATE PUBLIC PURPOSE.
   4. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO LIMIT, OR TO ENLARGE,
 THE  PROTECTIONS  THAT 47 U.S.C § 230 CONFERS ON AN INTERACTIVE COMPUTER
 SERVICE FOR CONTENT PROVIDED BY ANOTHER INFORMATION CONTENT PROVIDER, AS
 SUCH TERMS ARE DEFINED IN 47 U.S.C. § 230.
   UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE IS A  CLASS
 A MISDEMEANOR.
   §  2.  The opening paragraph of subdivision 1 of section 530.11 of the
 criminal procedure law, as amended by section 4 of part NN of chapter 55
 of the laws of 2018, is amended to read as follows:
   The family court and the criminal courts shall have concurrent  juris-
 diction  over  any  proceeding  concerning  acts  which would constitute
 disorderly conduct, UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE
 IMAGE, harassment in the first degree, harassment in the second  degree,
 aggravated  harassment in the second degree, sexual misconduct, forcible
 touching, sexual abuse in the third degree, sexual abuse in  the  second
 degree  as  set  forth in subdivision one of section 130.60 of the penal
 law, stalking in the first degree, stalking in the second degree, stalk-
 ing in the  third  degree,  stalking  in  the  fourth  degree,  criminal
 mischief,  menacing  in the second degree, menacing in the third degree,
 reckless endangerment, strangulation in the first degree,  strangulation
 in  the second degree, criminal obstruction of breathing or blood circu-
 lation, assault in the second degree, assault in the  third  degree,  an
 attempted assault, identity theft in the first degree, identity theft in
 the  second degree, identity theft in the third degree, grand larceny in
 the fourth degree, grand larceny in the third degree,  coercion  in  the
 second  degree  or coercion in the third degree as set forth in subdivi-
 sions one, two and three of section 135.60  of  the  penal  law  between
 spouses  or  former  spouses,  or  between  parent  and child or between
 members of the same family or household except that  if  the  respondent
 would not be criminally responsible by reason of age pursuant to section
 30.00  of  the  penal  law,  then  the family court shall have exclusive
 jurisdiction  over  such  proceeding.  Notwithstanding  a  complainant's
 election  to  proceed  in  family court, the criminal court shall not be
 divested of jurisdiction to hear a family offense proceeding pursuant to
 this  section.  For  purposes  of  this  section,  "disorderly  conduct"
 includes disorderly conduct not in a public place.  For purposes of this
 section,  "members  of  the  same family or household" with respect to a
 proceeding in the criminal courts shall mean the following:
   § 3. The opening paragraph of subdivision 1  of  section  812  of  the
 family  court  act,  as amended by section 5 of part NN of chapter 55 of
 the laws of 2018, is amended to read as follows:
   The family court and the criminal courts shall have concurrent  juris-
 diction  over  any  proceeding  concerning  acts  which would constitute
 disorderly conduct, UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE
 IMAGE, harassment in the first degree, harassment in the second  degree,

 A. 5981                             3
 
 aggravated  harassment in the second degree, sexual misconduct, forcible
 touching, sexual abuse in the third degree, sexual abuse in  the  second
 degree  as  set  forth in subdivision one of section 130.60 of the penal
 law, stalking in the first degree, stalking in the second degree, stalk-
 ing  in  the  third  degree,  stalking  in  the  fourth degree, criminal
 mischief, menacing in the second degree, menacing in the  third  degree,
 reckless endangerment, criminal obstruction of breathing or blood circu-
 lation,  strangulation  in the second degree, strangulation in the first
 degree, assault in the second degree, assault in the  third  degree,  an
 attempted assault, identity theft in the first degree, identity theft in
 the  second degree, identity theft in the third degree, grand larceny in
 the fourth degree, grand larceny in the third degree,  coercion  in  the
 second  degree  or coercion in the third degree as set forth in subdivi-
 sions one, two and three of section 135.60  of  the  penal  law  between
 spouses  or  former  spouses,  or  between  parent  and child or between
 members of the same family or household except that  if  the  respondent
 would not be criminally responsible by reason of age pursuant to section
 30.00  of  the  penal  law,  then  the family court shall have exclusive
 jurisdiction  over  such  proceeding.  Notwithstanding  a  complainant's
 election  to  proceed  in  family court, the criminal court shall not be
 divested of jurisdiction to hear a family offense proceeding pursuant to
 this section. In any proceeding pursuant to this article, a court  shall
 not  deny  an  order of protection, or dismiss a petition, solely on the
 basis that the acts or events alleged are not relatively contemporaneous
 with the date of the petition, the conclusion of the fact-finding or the
 conclusion of the dispositional hearing. For purposes of  this  article,
 "disorderly  conduct" includes disorderly conduct not in a public place.
 For purposes of this article, "members of the same family or  household"
 shall mean the following:
   §  4.  The civil rights law is amended by adding a new section 52-b to
 read as follows:
   § 52-B. PRIVATE RIGHT OF ACTION FOR UNLAWFUL DISSEMINATION OR PUBLICA-
 TION OF AN INTIMATE IMAGE. 1.  ANY PERSON DEPICTED IN A STILL  OR  VIDEO
 IMAGE,  REGARDLESS  OF  WHETHER OR NOT THE ORIGINAL STILL OR VIDEO IMAGE
 WAS CONSENSUALLY OBTAINED, SHALL HAVE A CAUSE OF ACTION AGAINST AN INDI-
 VIDUAL WHO, FOR THE PURPOSE OF  HARASSING,  ANNOYING  OR  ALARMING  SUCH
 PERSON,  DISSEMINATED  OR  PUBLISHED,  OR  THREATENED  TO DISSEMINATE OR
 PUBLISH, SUCH STILL OR VIDEO IMAGE, WHERE SUCH IMAGE:
   A. WAS TAKEN WHEN SUCH PERSON HAD A REASONABLE  EXPECTATION  THAT  THE
 IMAGE WOULD REMAIN PRIVATE; AND
   B.  DEPICTS  (I) AN UNCLOTHED OR EXPOSED INTIMATE PART OF SUCH PERSON;
 OR (II) SUCH PERSON ENGAGING IN SEXUAL CONDUCT, AS DEFINED  IN  SUBDIVI-
 SION TEN OF SECTION 130.00 OF THE PENAL LAW, WITH ANOTHER PERSON; AND
   C.  WAS DISSEMINATED OR PUBLISHED, OR THREATENED TO BE DISSEMINATED OR
 PUBLISHED, WITHOUT THE CONSENT OF SUCH PERSON.
   2. IN ANY  ACTION  COMMENCED  PURSUANT  TO  SUBDIVISION  ONE  OF  THIS
 SECTION,  THE  FINDER  OF  FACT, IN ITS DISCRETION, MAY AWARD INJUNCTIVE
 RELIEF, PUNITIVE DAMAGES,  COMPENSATORY  DAMAGES  AND  REASONABLE  COURT
 COSTS AND ATTORNEY'S FEES.
   3. THIS SECTION SHALL NOT APPLY TO THE FOLLOWING:
   A. THE REPORTING OF UNLAWFUL CONDUCT;
   B.  DISSEMINATION  OR  PUBLICATION OF AN INTIMATE STILL OR VIDEO IMAGE
 MADE DURING LAWFUL  AND  COMMON  PRACTICES  OF  LAW  ENFORCEMENT,  LEGAL
 PROCEEDINGS OR MEDICAL TREATMENT;
   C.  IMAGES  INVOLVING  VOLUNTARY  EXPOSURE  IN  A PUBLIC OR COMMERCIAL
 SETTING; OR

 A. 5981                             4

   D. DISSEMINATION OR PUBLICATION OF AN INTIMATE STILL  OR  VIDEO  IMAGE
 MADE FOR A LEGITIMATE PUBLIC PURPOSE.
   4.  ANY  PERSON  DEPICTED  IN  A  STILL OR VIDEO IMAGE THAT DEPICTS AN
 UNCLOTHED OR EXPOSED INTIMATE PART OF SUCH PERSON, OR SUCH PERSON ENGAG-
 ING IN SEXUAL CONDUCT AS DEFINED IN SUBDIVISION TEN OF SECTION 130.00 OF
 THE PENAL LAW WITH ANOTHER PERSON, WHICH IS  DISSEMINATED  OR  PUBLISHED
 WITHOUT  THE  CONSENT OF SUCH PERSON AND WHERE SUCH PERSON HAD A REASON-
 ABLE EXPECTATION THAT THE IMAGE WOULD REMAIN PRIVATE,  MAY  MAINTAIN  AN
 ACTION  OR  SPECIAL  PROCEEDING FOR A COURT ORDER TO REQUIRE ANY WEBSITE
 THAT IS SUBJECT TO PERSONAL JURISDICTION UNDER SUBDIVISION FIVE OF  THIS
 SECTION  TO PERMANENTLY REMOVE SUCH STILL OR VIDEO IMAGE; ANY SUCH COURT
 ORDER GRANTED PURSUANT TO THIS SUBDIVISION MAY DIRECT REMOVAL ONLY AS TO
 IMAGES THAT ARE REASONABLY WITHIN SUCH WEBSITE'S CONTROL.
   5. A. ANY WEBSITE THAT HOSTS OR TRANSMITS  A  STILL  OR  VIDEO  IMAGE,
 VIEWABLE  IN  THIS  STATE,  TAKEN  UNDER  CIRCUMSTANCES WHERE THE PERSON
 DEPICTED HAD A  REASONABLE  EXPECTATION  THAT  THE  IMAGE  WOULD  REMAIN
 PRIVATE, WHICH DEPICTS:
   (I)  AN  UNCLOTHED  OR  EXPOSED  INTIMATE  PART, AS DEFINED IN SECTION
 245.15 OF THE PENAL LAW, OF A RESIDENT OF THIS STATE; OR
   (II) A RESIDENT OF THIS STATE ENGAGING IN SEXUAL CONDUCT AS DEFINED IN
 SUBDIVISION TEN OF SECTION 130.00 OF THE PENAL LAW WITH ANOTHER  PERSON;
 AND
   B.  SUCH  STILL  OR  VIDEO  IMAGE IS HOSTED OR TRANSMITTED WITHOUT THE
 CONSENT OF SUCH RESIDENT OF THIS STATE, SHALL  BE  SUBJECT  TO  PERSONAL
 JURISDICTION  IN  A  CIVIL  ACTION  IN  THIS STATE TO THE MAXIMUM EXTENT
 PERMITTED UNDER THE UNITED STATES CONSTITUTION AND FEDERAL LAW.
   6. A CAUSE OF ACTION OR SPECIAL PROCEEDING UNDER THIS SECTION SHALL BE
 COMMENCED THE LATER OF EITHER:
   A. THREE YEARS AFTER THE DISSEMINATION OR PUBLICATION OF AN IMAGE; OR
   B. ONE YEAR FROM THE DATE A PERSON  DISCOVERS,  OR  REASONABLY  SHOULD
 HAVE DISCOVERED, THE DISSEMINATION OR PUBLICATION OF SUCH IMAGE.
   7. NOTHING HEREIN SHALL BE READ TO REQUIRE A PRIOR CRIMINAL COMPLAINT,
 PROSECUTION  OR  CONVICTION  TO  ESTABLISH  THE ELEMENTS OF THE CAUSE OF
 ACTION PROVIDED FOR BY THIS SECTION.
   8. THE PROVISIONS OF THIS SECTION ARE IN ADDITION TO,  BUT  SHALL  NOT
 SUPERSEDE, ANY OTHER RIGHTS OR REMEDIES AVAILABLE IN LAW OR EQUITY.
   9.  IF  ANY PROVISION OF THIS SECTION OR ITS APPLICATION TO ANY PERSON
 OR CIRCUMSTANCE IS HELD INVALID, THE INVALIDITY SHALL NOT  AFFECT  OTHER
 PROVISIONS  OR  APPLICATIONS  OF  THIS SECTION WHICH CAN BE GIVEN EFFECT
 WITHOUT THE INVALID PROVISION  OR  APPLICATION,  AND  TO  THIS  END  THE
 PROVISIONS OF THIS SECTION ARE SEVERABLE.
   10.  NOTHING  IN  THIS  SECTION  SHALL  BE  CONSTRUED  TO LIMIT, OR TO
 ENLARGE, THE PROTECTIONS THAT 47 U.S.C § 230 CONFERS ON  AN  INTERACTIVE
 COMPUTER  SERVICE  FOR  CONTENT  PROVIDED BY ANOTHER INFORMATION CONTENT
 PROVIDER, AS SUCH TERMS ARE DEFINED IN 47 U.S.C. § 230.
   § 5. This act shall take effect on the sixtieth  day  after  it  shall
 have become a law.