[HISTORY: Adopted by the Suffolk County Legislature as indicated in article histories. Amendments noted where applicable. Uncodified sections of local laws amending these provisions are included as an attachment to this chapter.]
[Adopted 11-20-2018 by L.L. No. 26-2018]
This Legislature hereby finds and determines that the County of Suffolk values and protects the right to privacy for all of its law-abiding residents. This Legislature also finds and determines that, in the age of the internet, some individuals post inappropriate and negative information about others towards whom they feel animus, frequently targeting their former intimate partners. This Legislature further finds and determines that, in some cases, these persons have posted intimate images of former partners which were not intended for public dissemination when obtained and they do so without the consent of the person depicted. This type of malicious act is commonly known as "revenge porn." This Legislature finds that 40 states, the District of Columbia and several municipalities, including New York City, have enacted legislation establishing criminal and civil liability for individuals who post revenge porn. New York State is one of 10 states that provide no legal protection for victims of revenge porn. This Legislature determines that the targets of revenge porn suffer real emotional and economic injury. This Legislature also finds that in order to protect the victims of these types of terrible and cowardly acts, Suffolk County should criminalize the act of disseminating revenge porn and create for victims a civil cause of action to hold their assailants responsible for their acts. Therefore, the purpose of this article is to criminalize the act of uploading intimate photos without the knowledge or consent of the individual depicted and create a private cause of action for victims to seek civil damages for such actions.
As used in this article, the following terms shall have the meanings indicated:
- Permission that is knowingly and voluntarily given while in an unimpaired mental state.
- COVERED RECIPIENT
- An individual who gains possession of, or access to, an intimate image of a depicted individual, including through the recording of the intimate image.
- DEPICTED INDIVIDUAL
- An individual depicted in a photograph, film, videotape, recording or any other reproduction of an image that portrays such individual:
- To disseminate, as defined in New York Penal Law § 250.40(5), or to publish, as defined in New York Penal Law § 250.40(6).
- INTIMATE BODY PARTS
- The genitals, pubic area or anus of any person, or the female nipple or areola of a person who is 11 years of age or older.
- INTIMATE IMAGE
- A photograph, film, videotape, recording or any other reproduction of an image of a depicted individual that has been disclosed or is threatened to be disclosed in a manner in which, or to a person or audience to whom, the depicted individual did not intend disclosure at the time when the covered recipient gained possession of or access to the intimate image. An intimate image does not include any image taken in a public place, as defined in New York Penal Law § 240.00, except if, at the time the image was recorded, an individual in the depicted individual's position would reasonably have believed that no one other than the covered recipient could view the applicable intimate body parts or sexual activity while such body parts were exposed or such activity was occurring.
- SEXUAL ACTIVITY
- Any of the following actions: sexual intercourse, as defined in New York Penal Law § 130.00(1); oral sexual conduct or anal sexual conduct, as those terms are defined in New York Penal Law § 130.00(2); touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire; sexual penetration with any object; or the transmission or appearance of semen upon any part of the depicted individual's body.
No covered recipient shall disclose an intimate image without the depicted individual's consent, with the intent to cause economic, physical or substantial emotional harm to such depicted individual, where such depicted individual is or would be identifiable to another individual either from the intimate image or from the circumstances under which such image is disclosed.
No covered recipient shall threaten to violate Subsection A of this section. When determining if a threat is made pursuant to this subsection, a depicted individual shall be considered to be identifiable where the covered recipient states or implies that such person would be so identifiable in the intimate image.
The prohibitions established in this article shall not apply if:
The disclosure or threat of disclosure is made in the course of reporting unlawful activity, in the course of a legal proceeding or by law enforcement personnel in conducting their authorized duties.
The disclosure is made by a provider of an interactive computer service, as defined in 47 U.S.C. § 230(f)(2), with regard to content provided by another information content provider, as defined in 47 U.S.C. § 230(f)(3).
The disclosure or threat of disclosure is made in relation to a matter of legitimate public concern or is otherwise protected by the First Amendment of the United States Constitution.
Violation of this article shall constitute an unclassified misdemeanor, punishable by up to one year's imprisonment and/or a fine of up to $1,000.
Any individual who suffers harm from a violation of this article shall have a civil cause of action in any court of competent jurisdiction against the individual who engaged in prohibited conduct. Plaintiffs in such an action may seek to hold the defendant liable for any or all of the following:
The private cause of action established under this section shall not require that a criminal charge be brought or a criminal conviction obtained as a condition precedent to the plaintiff commencing a civil action or obtaining a civil judgment.
This article shall apply to all actions occurring on or after the effective date of this article.