BILL NUMBER: S9172

SPONSOR: HOYLMAN-SIGAL
 
TITLE OF BILL:

An act to amend the civil rights law, in relation to privileged communi-
cations in defamation actions

 
PURPOSE OR GENERAL IDEA OF BILL:

Provides that certain communications made without malice regarding an
incident of sexual assault, harassment or discrimination shall be deemed
privileged.

 
SUMMARY OF PROVISIONS:

Section 1 amends Section 74 of the civil rights law to provide privi-
leges in civil action for defamation in addition to existing privileges
in action for libel. This section states that a communication made by an
individual, without malice, regarding an incident of sexual assault,
harassment, or discrimination shall be deemed privileged. The section
states the legal fees entitled to defendants in defamation actions
              

brought against them for communications deemed privileged by this subdi-
vision, including reasonable attorney's fees and costs for successfully
defending themselves in such litigation, treble damages for harm caused
to them, and punitive damages or other relief permitted by the law.

Section 1 also clarifies that "communication" refers to factual informa-
tion related to an incident of sexual assault, harassment, or discrimi-
nation experienced by the individual making the communication. This
subdivision shall only apply to individuals that have or had a reason-
able basis to file a complaint of sexual assault, harassment, or
discrimination.

Section 2 sets the effective date.

 
JUSTIFICATION:

The MeToo and Black Lives Matter movements heightened the country's
awareness of assault, harassment, and discrimination in the workplace
and beyond, initiating a national discussion on such issues and encour-
aging many survivors to share their stories about the people and / or
institutions that have harmed them. These movements highlighted that
abuse, harassment, and discrimination are incredibly common, with 81% of
women and 43% of men reporting that they've experienced some form of
sexual harassment and / or assault in their lifetime (National Sexual
Violence Resource Center), and discrimination based on race, gender,
age, and sexuality being experienced or witnessed by 61% of U.S.
employees (Glassdoor). While more survivors have come forward about
their abuse and discrimination, they have also faced a surge of defama-
tion lawsuits by their perpetrators which can be emotionally damaging,
time consuming, and financially straining for survivors (Legal Momen-
tum). These lawsuits silence and discredit survivors, discouraging them
from speaking out about their abuse and allowing perpetrators to further
abuse survivors through litigation. This is especially concerning given
that most sexual assaults already go unreported, with 20% of survivors
citing a fear of retaliation as their primary reason for not reporting
(The Criminal Justice System Statistics).

Frivolous defamation lawsuits can be prevented by statements being clas-
sified as privileged to protect from liability for defamation.  New York
State provides limited privileges for survivors as Section 74 of the
civil rights law only provides privileges in civil action for libel
cases, not defamation, and survivors are only entitled to a "qualified"
privilege when they report crimes to the police.  Qualified privilege
may be overcome if the perpetrator claiming defamation demonstrates that
the person.who reported the crime acted with "actual malice" - that they
acted out of personal spite and intentionally or recklessly disregarded
the falsity of their statement (Kaufman, Lieb, Lebowitz, & Frick). Abso-
lute privilege must be extended to communications regarding factual
information of sexual assault, harassment or discrimination in defama-
tion cases to prevent survivors from having such lawsuits filed against
them.

Anti-Strategic Lawsuit Against Public Participation (anti-SLAPP) laws
are designed to avoid and quickly dismiss retaliatory lawsuits that are
filed to intimidate and silence opponents exercising their First Amend-
ment rights. A bill was signed into law in 2020 expanding New York's
antiSLAPP law to any lawsuit arising out of First Amendment protected
communication on issues of public concern and requiring the awarding of
costs and attorney fees in frivolous actions involving public petition
and participation. While this bill was a step in the right direction,
New York State must do more to champion survivors by expanding the priv-
ileges afforded to survivors in defamation lawsuits.

This bill will amend the civil rights law to provide that communications
with factual information related to incidents'of sexual assault, harass-
ment, or discrimination are privileged and thus protected from liability
for defamation. This would provide greater protections for victims of
assault, harassment, and discrimination against illegitimate claims of
defamation and prevent defamation laws from being weaponized by perpe-
trators to silence and cause further harm to survivors. This legislation
would allow survivors to reclaim power by speaking out about their
abuse, harassment, and discrimination without the threat of litigation.
Protecting and uplifting the voices of survivors through this bill is a
necessary step in effectively combating abuse, harassment, discrimi-
nation, and gender-based violence.

 
LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

To be determined.

 
EFFECTIVE DATE:
This act shall take effect immediately.