Creates certain offenses and provisions related to the unlawful dissemination of a personal image; creates a private right of action for such offenses.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1121C
SPONSOR: Buttenschon 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 create a right of private action for
such offenses.
SUMMARY OF PROVISIONS:
The penal law is amended by adding three new sections, 250.70, 250.71,
and 250.72 establishing the crimes of unlawful dissemination of a
personal image in the first and second degrees and creating 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 made for a legitimate public purpose.
JUSTIFICATION:
Both Bianca Devins and Caroline Wimmer were brutally murdered and their
families suffered immensely due to the images of their murders being
disseminated throughout not just their communities but all over social
media nationally.
In March 2009, a 26 year-old woman named Caroline Wimmer was brutally
murdered in her West Brighton, Staten Island apartment. Caroline was a
charming and fun-loving young woman, popular amongst her friends and
beloved by her family. Emergency personnel arrived on the scene shortly
after. Caroline's horrified mother found her on the floor of her bath-
room. Inexplicably and shockingly, one of the EMTs on the scene - Mark
Musarella took a picture of Caroline and later posted it on his Facebook
page.
Despite the egregiousness of this act, Musarella could only be charged
with the simple misdemeanor of official conduct; he would later plea
down to a reduced charge of disorderly conduct, a mere violation no more
STATE OF NEW YORK
________________________________________________________________________
1121--C
Cal. No. 62
2021-2022 Regular Sessions
IN ASSEMBLY
January 7, 2021
___________
Introduced by M. of A. BUTTENSCHON, GALEF, JACKSON, FALL, GUNTHER,
ABINANTI, SILLITTI, JONES, JACOBSON, CONRAD, GRIFFIN -- read once and
referred to the Committee on Codes -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee -- ordered to a third reading, amended and ordered reprinted,
retaining its place on the order of third reading -- passed by Assem-
bly and delivered to the Senate, recalled from the Senate, vote recon-
sidered, bill amended, ordered reprinted, retaining its place on the
order of third reading
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:
1 Section 1. This act shall be known and may be cited as "Bianca and
2 Caroline's Law".
3 § 2. The penal law is amended by adding three new sections 250.70,
4 250.71, and 250.72 to read as follows:
5 § 250.70 Unlawful dissemination of a personal image; definitions, appli-
6 cation.
7 1. The following definitions shall apply to sections 250.71 and 250.72
8 of this article:
9 (a) "broadcast" means electronically transmitting a visual image with
10 the intent that it be viewed by a person;
11 (b) "disseminate" means to give, provide, lend, deliver, mail, send,
12 forward, transfer or transmit, electronically or otherwise to another
13 person;
14 (c) "publish" means to: (i) disseminate, as defined in paragraph (b)
15 of this subdivision, with the intent that such image or images be
16 disseminated to ten or more persons; (ii) disseminate with the intent
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02249-07-2
A. 1121--C 2
1 that such images be sold by another person; (iii) post, present,
2 display, exhibit, circulate, advertise or allows access, electronically
3 or otherwise, so as to make an image or images available to the public;
4 or (iv) disseminate with the intent that an image or images be posted,
5 presented, displayed, exhibited, circulated, advertised or made accessi-
6 ble, electronically or otherwise and to make such image or images avail-
7 able to the public.
8 2. The following provisions shall apply to sections 250.71 and 250.72
9 of this article:
10 (a) The provisions of these sections shall not apply to the following:
11 (i) the reporting of unlawful conduct;
12 (ii) the dissemination or publication of an image made during lawful
13 and common practices of law enforcement, legal proceedings or medical
14 treatment;
15 (iii) images involving activities in a public setting or activities in
16 a commercial setting in which legal activities are being conducted; or
17 (iv) the dissemination or publication of an image made for a legiti-
18 mate public purpose.
19 (b) Nothing in these sections shall be construed to limit, or to
20 enlarge, the protections that 47 U.S.C. § 230 confers on an interactive
21 computer service for content provided by another information content
22 provider, as such terms are defined in 47 U.S.C. § 230.
23 3. With respect to sections 250.71 and 250.72 of this article, the
24 provisions of subdivision two of section 235.15 and subdivisions one and
25 two of section 235.24 of this part shall apply.
26 § 250.71 Unlawful dissemination of a personal image in the second
27 degree.
28 A person is guilty of unlawful dissemination of a personal image in
29 the second degree when, with the intent of degrading or abusing a person
30 who has been the victim of a crime described in title H of this part, or
31 otherwise causing harm to the emotional, financial or physical welfare
32 of such victim or such victim's family, or for the actor's own or anoth-
33 er person's amusement, entertainment or profit, the actor intentionally:
34 1. (a) creates and disseminates or publishes a still or video image of
35 such victim, without the victim's consent, in a manner that has no or
36 minimal cultural or social value; and
37 (b) the victim is identifiable from the still or video image itself or
38 from information displayed in connection with the still or video image;
39 and
40 (c) the image depicts the commission of the crime against the victim
41 or physical injury suffered by the victim as a result of the commission
42 of the crime; or
43 2. acting as an agent of the actor who created an image in violation
44 of subdivision one of this section, he or she knowingly disseminates or
45 publishes such image.
46 Unlawful dissemination of a personal image in the second degree is a
47 class B misdemeanor.
48 § 250.72 Unlawful dissemination of a personal image in the first degree.
49 A person is guilty of unlawful dissemination of a personal image in
50 the first degree when he or she commits the offense of unlawful dissem-
51 ination of a personal image in the second degree and:
52 1. he or she committed, participated in the commission of, or
53 conspired to commit the crime that resulted in such injury to such
54 victim; or
55 2. the victim suffered serious physical injury or death which is
56 depicted in the unlawfully disseminated image.
A. 1121--C 3
1 Unlawful dissemination of a personal image in the first degree is a
2 class A misdemeanor.
3 § 3. The civil rights law is amended by adding a new section 52-d to
4 read as follows:
5 § 52-d. Private right of action for unlawful dissemination or publica-
6 tion of a personal image. 1. Any crime victim depicted in a still or
7 video image which was unlawfully disseminated as provided in section
8 250.71 or 250.72 of the penal law shall have a cause of action against
9 such individual who disseminated or published such still or video image
10 without the consent of the person depicted in the image.
11 2. In any action commenced pursuant to subdivision one of this
12 section, the finder of fact, in its discretion, may award injunctive
13 relief, punitive damages, compensatory damages and reasonable court
14 costs and attorneys' fees.
15 3. This section shall not apply to the following:
16 a. the reporting of unlawful conduct;
17 b. the dissemination or publication of an image made during law
18 enforcement activities, legal proceedings or medical treatment;
19 c. images involving activities in a public setting or activities in a
20 commercial setting in which legal activities are being conducted; or
21 d. the dissemination or publication of an image made for a legitimate
22 public purpose.
23 4. Any such crime victim depicted in a still or video image which was
24 unlawfully disseminated as provided in section 250.71 or 250.72 of the
25 penal law, or such person's estate, may maintain an action or special
26 proceeding for a court order to require any website that is subject to
27 personal jurisdiction under subdivision five of this section to perma-
28 nently remove such still or video image; any such court order granted
29 pursuant to this subdivision may direct removal only as to images that
30 are reasonably within such website's control.
31 5. Any website that hosts or transmits a still or video image, view-
32 able in this state, which was unlawfully disseminated as provided in
33 section 250.71 or 250.72 of the penal law and which image is hosted or
34 transmitted without the consent of the person depicted in the image,
35 shall be subject to personal jurisdiction in a civil action in this
36 state to the maximum extent permitted under the United States constitu-
37 tion and federal law.
38 6. A cause of action or special proceeding under this section shall be
39 commenced the later of either:
40 a. three years after the dissemination or publication of such image;
41 or
42 b. one year from the date the plaintiff or petitioners discovered, or
43 reasonably should have discovered, such dissemination or publication of
44 such image.
45 7. Nothing in this section shall be read to require a prior criminal
46 complaint, prosecution or conviction to establish the elements of the
47 cause of action provided for by this section.
48 8. The provisions of this section are in addition to, but shall not
49 supersede, any other rights or remedies available in law or equity.
50 9. If any provision of this section or its application to any person
51 or circumstance is held invalid, the invalidity shall not affect other
52 provisions or applications of this section which can be given effect
53 without the invalid provision or application, and to this end the
54 provisions of this section are severable.
55 10. Nothing in this section shall be construed to limit, or to
56 enlarge, the protections that 47 U.S.C. § 230 confers on an interactive
A. 1121--C 4
1 computer service for content provided by another information content
2 provider, as such terms are defined in 47 U.S.C. § 230.
3 § 4. This act shall take effect on the sixtieth day after it shall
4 have become a law.
