NY State Senate Bill 2019-S9090

Senate Bill S9090

2019-2020 Legislative Session

Creating the certain offenses and provisions related to the unlawful dissemination of a personal image; and creates a private right of action for such offenses

download bill text pdf

Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Nov 13, 2020	referred to rules

2019-S9090 (ACTIVE) - Details

See Assembly Version of this Bill:: A11093
Current Committee:: Senate Rules
Law Section:: Penal Law
Laws Affected:: Add §§250.70, 250.71, 250.72 & 250.73, Pen L; add §52-c, Civ Rts L
Versions Introduced in 2021-2022 Legislative Session:: S6056, A1121, A6815

2019-S9090 (ACTIVE) - Summary

Creates certain offenses and provisions related to the unlawful dissemination of a personal image; creates a private right of action for such offenses.

2019-S9090 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S9090

SPONSOR: GRIFFO
 
TITLE OF BILL:

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 creat-
ing a private right of action for such offenses

 
PURPOSE OR GENERAL IDEA OF BILL:

The purpose of this legislation is to criminalize the unlawful dissem-
ination of a personal image and creates a right of private action for
such offenses.

 
SUMMARY OF SPECIFIC PROVISIONS:

The penal law is amended by adding four new sections 250.70, 250.71,
250.72, and 250.73 establishing the crimes of unlawful dissemination of
a personal image in the first, second, and third degrees, and creates a

right of private action for such offenses.

This legislation would not apply to the reporting of unlawful conduct;
the sharing of images made during lawful and common practices of law
enforcement; legal proceedings or medical treatment; the sharing of
images involving activities in a public or commercial setting where
legal activities are being conducted; or to the sharing of images shared
which are made for a legitimate public purpose.

 
JUSTIFICATION:

In July 2019, 17-year-old Bianca Devins of Utica, NY was stabbed to
death after attending a concert with her attacker. After committing the
heinous crime, her attacker uploaded the gruesome photos of her corpse
onto various social media platforms. These photos were widely shared on
social media sites, including Instagram, Snapchat, and Twitter. The
response by social media sites to the spread of the photos was slow and
inconsistent, and has been strongly criticized.

Devins's family initially became aware of her death through the images
being sent to them on their social media accounts and has been harassed
with the images since then. Over time, YouTube videos and Twitter and
Reddit threads have been dedicated to explaining the crime and Devins's
history, with some accounts promising to post images of Devins's murder
in exchange for likes and follows, and to capitalize on her name and
death.

It should be known that it is unacceptable for individuals to dissem-
inate images of a crime with the intent to glorify violent actions or
humiliate, demean, degrade or abuse a person who has been the victim of
a crime and/or their families should face consequences for the trauma
they cause.

 
PRIOR LEGISLATIVE HISTORY:

This is a new bill.

 
FISCAL IMPLICATIONS:
None.

 
EFFECTIVE DATE:
This act shall take effect on the sixtieth day after it shall have
become law.

2019-S9090 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9090
 
                             I N  S E N A T E
 
                             November 13, 2020
                                ___________
 
 Introduced  by  Sen.  GRIFFO -- 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  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:
 
   Section 1. The penal law  is  amended  by  adding  four  new  sections
 250.70, 250.71, 250.72 and 250.73 to read as follows:
 § 250.70 UNLAWFUL DISSEMINATION OF A PERSONAL IMAGE; DEFINITIONS, APPLI-
            CATION.
   1.  THE  FOLLOWING  DEFINITIONS SHALL APPLY TO SECTIONS 250.71, 250.72
 AND 250.73 OF THIS ARTICLE:
   (A) "BROADCAST" MEANS ELECTRONICALLY TRANSMITTING A VISUAL IMAGE  WITH
 THE INTENT THAT IT BE VIEWED BY A PERSON;
   (B)  "CREATE"  MEANS  TO  USE OR INSTALL, OR PERMIT THE UTILIZATION OR
 INSTALLATION OF AN IMAGING DEVICE TO VIEW,  BROADCAST  AND/OR  RECORD  A
 VISUAL IMAGE OF ANOTHER PERSON;
   (C)  "DISSEMINATE"  MEANS TO GIVE, PROVIDE, LEND, DELIVER, MAIL, SEND,
 FORWARD, TRANSFER OR TRANSMIT, ELECTRONICALLY OR  OTHERWISE  TO  ANOTHER
 PERSON;
   (D) "IMAGING DEVICE" MEANS ANY MECHANICAL, DIGITAL OR ELECTRONIC VIEW-
 ING  DEVICE,  CAMERA,  CELLULAR PHONE OR ANY OTHER INSTRUMENT CAPABLE OF
 RECORDING, STORING OR TRANSMITTING VISUAL IMAGES THAT CAN BE UTILIZED TO
 OBSERVE A PERSON;
   (E) "PUBLISH" MEANS TO: (I) DISSEMINATE, AS DEFINED IN  PARAGRAPH  (C)
 OF  THIS  SUBDIVISION,  WITH  THE  INTENT  THAT  SUCH IMAGE OR IMAGES BE
 DISSEMINATED TO TEN OR MORE PERSONS; (II) DISSEMINATE  WITH  THE  INTENT
 THAT  SUCH  IMAGES  BE  SOLD  BY  ANOTHER  PERSON;  (III) POST, PRESENT,
 DISPLAY, EXHIBIT, CIRCULATE, ADVERTISE OR ALLOWS ACCESS,  ELECTRONICALLY
 OR  OTHERWISE, SO AS TO MAKE AN IMAGE OR IMAGES AVAILABLE TO THE PUBLIC;
 OR (IV) DISSEMINATE WITH THE INTENT THAT AN IMAGE OR IMAGES  BE  POSTED,
 PRESENTED, DISPLAYED, EXHIBITED, CIRCULATED, ADVERTISED OR MADE ACCESSI-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD17398-01-0

 S. 9090                             2
 
 BLE, ELECTRONICALLY OR OTHERWISE AND TO MAKE SUCH IMAGE OR IMAGES AVAIL-
 ABLE TO THE PUBLIC.
   2. THE FOLLOWING PROVISIONS SHALL APPLY TO SECTIONS 250.71, 250.72 AND
 250.73 OF THIS ARTICLE:
   (A) THE PROVISIONS OF THESE SECTIONS SHALL NOT APPLY TO THE FOLLOWING:
   (I) THE REPORTING OF UNLAWFUL CONDUCT;
   (II)  THE  DISSEMINATION OR PUBLICATION OF AN IMAGE MADE DURING LAWFUL
 AND COMMON PRACTICES OF LAW ENFORCEMENT, LEGAL  PROCEEDINGS  OR  MEDICAL
 TREATMENT;
   (III) IMAGES INVOLVING ACTIVITIES IN A PUBLIC SETTING OR ACTIVITIES IN
 A COMMERCIAL SETTING IN WHICH LEGAL ACTIVITIES ARE BEING CONDUCTED; OR
   (IV)  THE  DISSEMINATION OR PUBLICATION OF AN IMAGE MADE FOR A LEGITI-
 MATE PUBLIC PURPOSE.
   (B) NOTHING IN THESE SECTIONS 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.
 § 250.71 UNLAWFUL DISSEMINATION OF A PERSONAL IMAGE IN THE THIRD DEGREE.
   A  PERSON  IS  GUILTY OF UNLAWFUL DISSEMINATION OF A PERSONAL IMAGE IN
 THE THIRD DEGREE  WHEN,  WITH  THE  INTENT  OF  HUMILIATING,  DEMEANING,
 DEGRADING  OR  ABUSING  A  PERSON  WHO HAS BEEN THE VICTIM OF AN OFFENSE
 DESCRIBED IN TITLE H OF THIS PART, OR  OTHERWISE  CAUSING  HARM  TO  THE
 EMOTIONAL, FINANCIAL OR PHYSICAL WELFARE OF SUCH VICTIM OR SUCH VICTIM'S
 FAMILY,  OR  WHEN,  FOR  HIS  OR HER OWN, OR ANOTHER PERSON'S AMUSEMENT,
 ENTERTAINMENT OR PROFIT, HE OR SHE INTENTIONALLY:
   1. (A) CREATES AND DISSEMINATES OR PUBLISHES A STILL OR VIDEO IMAGE OF
 SUCH VICTIM, WITHOUT THE VICTIM'S CONSENT, IN A MANNER THAT  HAS  NO  OR
 LIMITED CULTURAL OR SOCIAL VALUE; AND
   (B) THE VICTIM IS IDENTIFIABLE FROM THE STILL OR VIDEO IMAGE ITSELF OR
 FROM  INFORMATION DISPLAYED IN CONNECTION WITH THE STILL OR VIDEO IMAGE;
 AND
   (C) THE IMAGE DEPICTS THE COMMISSION OF THE OFFENSE AGAINST THE VICTIM
 OR PHYSICAL INJURY SUFFERED BY THE VICTIM AS A RESULT OF THE  COMMISSION
 OF THE OFFENSE; OR
   2. ACTING AS AN AGENT OF A PERSON WHO CREATES AN IMAGE AS DESCRIBED IN
 SUBDIVISION  ONE  OF  THIS  SECTION, HE OR SHE DISSEMINATES OR PUBLISHES
 SUCH IMAGE.
   UNLAWFUL DISSEMINATION OF A PERSONAL IMAGE IN THE THIRD  DEGREE  IS  A
 CLASS B MISDEMEANOR.
 §  250.72  UNLAWFUL  DISSEMINATION  OF  A  PERSONAL  IMAGE IN THE SECOND
            DEGREE.
   A PERSON IS GUILTY OF UNLAWFUL DISSEMINATION OF A  PERSONAL  IMAGE  IN
 THE SECOND DEGREE WHEN HE OR SHE COMMITS THE OFFENSE OF UNLAWFUL DISSEM-
 INATION OF A PERSONAL IMAGE IN THE THIRD DEGREE AND:
   1.  HE  OR  SHE  COMMITTED,  PARTICIPATED  IN  THE  COMMISSION  OF, OR
 CONSPIRED TO COMMIT THE OFFENSE AGAINST THE VICTIM; OR
   2. THE VICTIM SUFFERED SERIOUS PHYSICAL INJURY WHICH  IS  DEPICTED  IN
 THE UNLAWFULLY DISSEMINATED IMAGE; OR
   3.  HE  OR  SHE  HAS  BEEN  CONVICTED WITHIN THE PREVIOUS TEN YEARS OF
 UNLAWFUL DISSEMINATION OF A PERSONAL IMAGE IN THE THIRD DEGREE.
   UNLAWFUL DISSEMINATION OF A PERSONAL IMAGE IN THE SECOND DEGREE  IS  A
 CLASS A MISDEMEANOR.
 § 250.73 UNLAWFUL DISSEMINATION OF A PERSONAL IMAGE IN THE FIRST DEGREE.
   A  PERSON IS GUILTY OF DISSEMINATION OF AN UNLAWFUL DISSEMINATION OF A
 PERSONAL IMAGE IN THE FIRST DEGREE WHEN HE OR SHE COMMITS THE OFFENSE OF
 UNLAWFUL DISSEMINATION OF A PERSONAL IMAGE IN THE THIRD DEGREE AND:

 S. 9090                             3
 
   1. HE  OR  SHE  COMMITTED,  PARTICIPATED  IN  THE  COMMISSION  OF,  OR
 CONSPIRED  TO COMMIT AN OFFENSE DESCRIBED IN ARTICLE ONE HUNDRED TWENTY-
 FIVE OF THIS CHAPTER AGAINST THE VICTIM; OR
   2. THE VICTIM SUFFERED DEATH OR SERIOUS PHYSICAL INJURY AS A RESULT OF
 THE  APPLICATION  OF DEADLY PHYSICAL FORCE AND SUCH INJURY, DEATH OR THE
 APPLICATION OF DEADLY PHYSICAL  FORCE  IS  DEPICTED  IN  THE  UNLAWFULLY
 DISSEMINATED IMAGE; OR
   3.  HE  OR  SHE  HAS  BEEN  CONVICTED WITHIN THE PREVIOUS TEN YEARS OF
 UNLAWFUL DISSEMINATION OF A PERSONAL IMAGE IN THE SECOND DEGREE.
   UNLAWFUL DISSEMINATION OF A PERSONAL IMAGE IN THE FIRST  DEGREE  IS  A
 CLASS E FELONY.
   §  2.  The civil rights law is amended by adding a new section 52-c to
 read as follows:
   § 52-C. PRIVATE RIGHT OF ACTION FOR UNLAWFUL DISSEMINATION OR PUBLICA-
 TION OF A PERSONAL IMAGE. 1. ANY PERSON DEPICTED IN  A  STILL  OR  VIDEO
 IMAGE  WHICH  WAS UNLAWFULLY DISSEMINATED AS PROVIDED IN SECTION 250.71,
 250.72 OR 250.73 OF THE PENAL LAW SHALL HAVE A CAUSE OF  ACTION  AGAINST
 AN  INDIVIDUAL  WHO  DISSEMINATED OR PUBLISHED, OR THREATENED TO DISSEM-
 INATE OR PUBLISH, SUCH STILL OR VIDEO IMAGE WITHOUT THE CONSENT  OF  THE
 PERSON DEPICTED IN THE IMAGE.
   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. THE DISSEMINATION OR PUBLICATION OF AN IMAGE MADE DURING LAWFUL AND
 COMMON PRACTICES OF LAW ENFORCEMENT, LEGAL PROCEEDINGS OR MEDICAL TREAT-
 MENT;
   C. IMAGES INVOLVING ACTIVITIES IN A PUBLIC SETTING OR ACTIVITIES IN  A
 COMMERCIAL SETTING IN WHICH LEGAL ACTIVITIES ARE BEING CONDUCTED; OR
   D.  THE DISSEMINATION OR PUBLICATION OF AN IMAGE MADE FOR A LEGITIMATE
 PUBLIC PURPOSE.
   4. ANY PERSON DEPICTED IN A STILL OR VIDEO IMAGE WHICH WAS  UNLAWFULLY
 DISSEMINATED  AS  PROVIDED  IN  SECTION  250.71, 250.72 OR 250.73 OF THE
 PENAL LAW 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. ANY WEBSITE THAT HOSTS OR TRANSMITS A STILL OR VIDEO  IMAGE,  VIEW-
 ABLE  IN  THIS  STATE,  WHICH WAS UNLAWFULLY DISSEMINATED AS PROVIDED IN
 SECTION 250.71, 250.72 OR 250.73 OF THE PENAL LAW  AND  WHICH  IMAGE  IS
 HOSTED  OR TRANSMITTED WITHOUT THE CONSENT OF THE PERSON DEPICTED IN THE
 IMAGE, 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.

 S. 9090                             4
 
   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.
   § 3. This act shall take effect on the sixtieth  day  after  it  shall
 have become a law.

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