S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6862
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              April 13, 2021
                                ___________
 
 Introduced  by  M.  of A. PAULIN, DINOWITZ, SEAWRIGHT, DICKENS, FRONTUS,
   GALEF, GUNTHER, JACKSON, SIMON, STECK,  ZINERMAN,  McDONOUGH  --  read
   once and referred to the Committee on Codes
 
 AN  ACT  to amend the penal law and the civil rights law, in relation to
   unlawful dissemination or publication of intimate  images  created  by
   digitization

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 1 of section 245.15 of the penal law, as  added
 by  chapter  109 of the laws of 2019, is amended and new subdivision 2-b
 is added to read as follows:
   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, INCLUDING AN IMAGE CREATED BY DIGITIZATION,
 image of such other person, who is identifiable 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:
   (I) taken under circumstances when the person depicted had  a  reason-
 able  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[.]; OR
   (II) CREATED BY DIGITIZATION AND THE ACTOR KNEW OR  REASONABLY  SHOULD
 HAVE KNOWN THE PERSON DEPICTED DID NOT CONSENT TO ITS CREATION.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD10561-01-1
              

 A. 6862                             2
 
   2-B.  FOR  PURPOSES  OF  THIS  SECTION "DIGITIZATION" MEANS TO REALIS-
 TICALLY DEPICT ANY OF THE FOLLOWING:
   (A)  THE NUDE BODY PARTS OF ANOTHER HUMAN BEING AS THE NUDE BODY PARTS
 OF THE DEPICTED PERSON.
   (B) COMPUTER-GENERATED NUDE BODY PARTS AS THE NUDE BODY PARTS  OF  THE
 DEPICTED PERSON.
   (C)  THE  DEPICTED  PERSON  ENGAGING  IN  SEXUAL  CONDUCT IN WHICH THE
 DEPICTED PERSON DID NOT ENGAGE.
   § 2. Section 52-b of the civil rights law, as added by chapter 109  of
 the laws of 2019, is amended to read as follows:
   § 52-b. Private right of action for unlawful dissemination or publica-
 tion  of  an intimate image. 1.  FOR PURPOSES OF THIS SECTION "DIGITIZA-
 TION" MEANS TO REALISTICALLY DEPICT ANY OF THE FOLLOWING:
   (A) THE NUDE BODY PARTS OF ANOTHER HUMAN BEING AS THE NUDE BODY  PARTS
 OF THE DEPICTED PERSON.
   (B)  COMPUTER-GENERATED  NUDE BODY PARTS AS THE NUDE BODY PARTS OF THE
 DEPICTED PERSON.
   (C) THE DEPICTED PERSON  ENGAGING  IN  SEXUAL  CONDUCT  IN  WHICH  THE
 DEPICTED PERSON DID NOT ENGAGE.
   2. Any person depicted in a still or video image, regardless of wheth-
 er  or  not the original still or video image was consensually obtained,
 shall have a cause of action against an individual 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.
   3.  ANY  PERSON DEPICTED IN A STILL OR VIDEO IMAGE, SHALL HAVE A CAUSE
 OF ACTION AGAINST AN   INDIVIDUAL 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 CREATED BY DIGITIZATION WITHOUT THE CONSENT OF THE PERSON; AND
   B.  DEPICTS (I) AN UNCLOTHED OR EXPOSED INTIMATE PART OF  SUCH  PERSON
 OR  (II) SUCH   PERSON  ENGAGING  IN  SEXUAL  CONDUCT,  AS  DEFINED   IN
 SUBDIVISION 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] 4.  In any action commenced pursuant to [subdivision one] SUBDIVI-
 SIONS  TWO  AND  THREE  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] 5. 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. 6862                             3
 
   d. dissemination or publication of an intimate still  or  video  image
 made for a legitimate public purpose.
   [4]  6.  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,  OR  WHERE  SUCH
 STILL  OR VIDEO IMAGE WAS CREATED BY DIGITIZATION WITHOUT THE CONSENT OF
 THE PERSON, 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 subdivi-
 sion may direct removal only as to images  that  are  reasonably  within
 such website's control.
   [5] 7. 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,  OR WHERE SUCH STILL OR VIDEO IMAGE WAS CREATED BY DIGITIZATION
 WITHOUT THE CONSENT OF THE PERSON, 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]  8.    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]  9.    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]  10.  The provisions of this section are in addition to, but shall
 not supersede, any other rights or remedies available in law or equity.
   [9] 11.  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]  12.   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.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  6862--A
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              April 13, 2021
                                ___________
 
 Introduced  by  M.  of A. PAULIN, DINOWITZ, SEAWRIGHT, DICKENS, FRONTUS,
   GALEF, GUNTHER, JACKSON, SIMON, STECK, ZINERMAN, McDONOUGH,  SILLITTI,
   SEPTIMO -- read once and referred to the Committee on Codes -- commit-
   tee  discharged, bill amended, ordered reprinted as amended and recom-
   mitted to said committee

 AN ACT to amend the penal law and the civil rights law, in  relation  to
   unlawful  dissemination  or  publication of intimate images created by
   digitization and of sexually explicit depictions of an individual
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Subdivision 1 of section 245.15 of the penal law, as added
 by chapter 109 of the laws of 2019, is amended and new  subdivision  2-b
 is added to read as follows:
   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, INCLUDING AN IMAGE CREATED BY  DIGITIZATION,
 image  of such other person, who is identifiable 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:
   (I)  taken  under circumstances when the person depicted had a reason-
 able 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[.]; OR

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD10561-02-1
              

 A. 6862--A                          2
 
   (II)  CREATED  BY DIGITIZATION AND THE ACTOR KNEW OR REASONABLY SHOULD
 HAVE KNOWN THE PERSON DEPICTED DID NOT CONSENT TO ITS CREATION OR TO ITS
 DISSEMINATION OR PUBLICATION.
   2-B.  FOR  PURPOSES  OF  THIS  SECTION "DIGITIZATION" MEANS TO REALIS-
 TICALLY DEPICT ANY OF THE FOLLOWING:
   (A) THE NUDE BODY PARTS OF ANOTHER HUMAN BEING AS THE NUDE BODY  PARTS
 OF THE DEPICTED PERSON.
   (B)  COMPUTER-GENERATED  NUDE BODY PARTS AS THE NUDE BODY PARTS OF THE
 DEPICTED PERSON.
   (C) THE DEPICTED PERSON  ENGAGING  IN  SEXUAL  CONDUCT  IN  WHICH  THE
 DEPICTED PERSON DID NOT ENGAGE.
   §  2. Paragraph a of subdivision 2 of section 52-c of the civil rights
 law, as added by chapter 304 of the laws of 2020, is amended to read  as
 follows:
   a. A depicted individual shall have a cause of action against a person
 who,  discloses,  disseminates  or  publishes  OR THREATENS TO DISCLOSE,
 DISSEMINATE  OR  PUBLISH  sexually  explicit  material  related  to  the
 depicted  individual,  and  the  person  knows or reasonably should have
 known the depicted individual in that material did not  consent  to  its
 creation, disclosure, dissemination, or publication.
   §  3.  This  act  shall take effect on the sixtieth day after it shall
 have become a law; provided, however, that if chapter 304 of the laws of
 2020 shall not have taken effect on or before such date then section two
 of this act shall take effect on the same date and in the same manner as
 such chapter of the laws of 2020 takes effect.