BILL NUMBER: S3987

SPONSOR: REICHLIN-MELNICK
 
TITLE OF BILL:

An act to amend the civil rights law, in relation to capturing the visu-
al image of a person within a dwelling when such person has a reasonable
expectation of privacy

 
PURPOSE:

To create a zone of privacy around the home which will prevent people
from capturing and using the image of the residents within.

 
SUMMARY OF PROVISIONS:

Section one amends § 50 of the civil rights law to include a prohibition
on knowingly capturing the image of another person within a dwelling,
when that person has a reasonable expectation of privacy.  A person in
violation of this section will be guilty of a misdemeanor.

              

Section two amends § 51 of the civil rights law to permit a person whose
image is captured in violation of § 50 to maintain an equitable action,
and may also sue for any damages incurred.

Section three sets out the effective date.

 
JUSTIFICATION:

Under existing law, there are prohibitions against using the likeness or
image of a person, without their consent, for advertising purposes.
However, an image that captures a person in their own home may be used
for artistic purposes.

In Foster v Svenson, 128 AD3d 150 (1st Dept. 2015), the plaintiffs sued
the defendant for taking photographs of their children through their
apartment windows and offering them for sale. The defendant Arne Sven-
son, a prominent photographer, using a telephoto camera lens, began a
project where he covertly took pictures of his neighbors in their homes.
Svenson went so far as to darken his own home, hiding in the shadows as
he took pictures. After months of this behavior, he released a photo-
graph series entitled "The Neighbors." In the promotional materials for
the exhibit, the defendant stated that for his "subjects there is no
question of privacy; they are performing behind a transparent scrim on a
stage of their own creation with the curtain raised high." The plain-
tiffs were unaware that they were being photographed. Photographs of the
plaintiffs included their son in his diaper, daughter in a swimsuit, and
the other showed the plaintiff holding up her daughter. The plaintiffs
sued under Civil Rights law §§ 50 and 51. These sections guarantee a
right to privacy.

The defendant stated that his use of the images constituted artwork and
therefore was not included within the prohibition on using another
person's image for "advertising or trade purpose". The court after
extensive analysis concluded that the images were works of art, which
was protected by the First Amendment. However, the court stated
"undoubtedly, like plaintiffs, many people would be rightfully offended
by the intrusive manner in which the photographs were taken in this
case. However, such complaints
 are best addressed to the Legislature."

This bill seeks to create a zone of privacy around the home. As technol-
ogies advance, it will become easier for people to surreptitiously
record and capture the images of their neighbors.  This case illustrates
the glaring absence of protection that people expect within the confines
of their home and the bill seeks to remedy that, by protecting people in
their homes from uninvited surveillance no matter the motive.

 
LEGISLATIVE HISTORY:

2019-20: S3083 - referred to Codes

2017-18: S1643 - referred to Codes

2015-16: S5383 - referred to Codes

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
Immediately.