S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6815
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               April 8, 2021
                                ___________
 
 Introduced  by  M.  of  A.  BUTTENSCHON -- read once and referred to the
   Committee on Codes
 
 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. This act shall be known and may be cited as "Bianca's law".
   § 2. 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,
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD02249-02-1

 A. 6815                             2
 
 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-
 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.

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 § 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:
   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 PART 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.
   § 3. The civil rights law is amended by adding a new section  52-d  to
 read as follows:
   § 52-D. 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

 A. 6815                             4
 
   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.
   § 4. This act shall take effect on the sixtieth  day  after  it  shall
 have become a law.