N.Y. Civil Rights Law § 52-c: Private right of action for unlawful dissemination or publication of a sexually explicit depiction of an individual

* § 52-c. Private right of action for unlawful dissemination or

publication of a sexually explicit depiction of an individual. 1. For

the purposes of this section:

a. "depicted individual" means an individual who appears, as a result

of digitization, to be giving a performance they did not actually

perform or to be performing in a performance that was actually performed

by the depicted individual but was subsequently altered to be in

violation of this section.

b. "digitization" means to realistically depict the nude body parts of

another human being as the nude body parts of the depicted individual,

computer-generated nude body parts as the nude body parts of the

depicted individual or the depicted individual engaging in sexual

conduct, as defined in subdivision ten of section 130.00 of the penal

law, in which the depicted individual did not engage. "Digitization" may

also mean the use of software, machine learning, artificial

intelligence, or any other computer-generated or technological means,

including adapting, modifying, manipulating, or altering a realistic

depiction.

c. "individual" means a natural person.

d. "person" means a human being or legal entity.

e. "sexually explicit material" means any portion of an audio visual

work that shows the depicted individual:

i. performing in the nude, meaning with an unclothed or exposed

intimate part, as defined in section 245.15 of the penal law;

ii. appearing to engage in, or being subjected to, sexual conduct, as

defined in subdivision ten of section 130.00 of the penal law; or

iii. posed in a manner intended to elicit sexual arousal or

gratification and where a person would have a reasonable expectation of

privacy.

2. a. A depicted individual shall have a cause of action against a

person who, discloses, disseminates or publishes 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.

b. It shall not be a defense to an action under this section that

there is a disclaimer in the sexually explicit material that

communicates that the inclusion of the depicted individual in the

sexually explicit material was unauthorized or that the depicted

individual did not participate in the creation or development of the

material.

3. a. A depicted individual may only consent to the creation,

disclosure, dissemination, or publication of sexually explicit material

by knowingly and voluntarily signing an agreement written in plain

language that includes a general description of the sexually explicit

material and the audiovisual work in which it will be incorporated.

b. A depicted individual may rescind consent by delivering written

notice within three business days from the date consent was given to the

person in whose favor consent was made, unless one of the following

requirements is satisfied:

i. the depicted individual is given at least three business days to

review the terms of the agreement before signing it; or

ii. if the depicted individual is represented, the attorney, talent

agent, or personal manager authorized to represent the depicted

individual provides additional written approval of the signed agreement.

4. a. A person is not liable under this section if:

i. the person discloses, disseminates or publishes the sexually

explicit material in the course of reporting unlawful activity,

exercising the person's law enforcement duties, or hearings, trials or

other legal proceedings; or

ii. the sexually explicit material is a matter of legitimate public

concern, a work of political or newsworthy value or similar work, or

commentary, criticism or disclosure that is otherwise protected by the

constitution of this state or the United States; provided that sexually

explicit material shall not be considered of newsworthy value solely

because the depicted individual is a public figure.

5. In any action commenced pursuant to 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.

6. 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 sexually

explicit material; or

b. one year from the date a person discovers, or reasonably should

have discovered, the dissemination or publication of such sexually

explicit material.

7. Nothing in this section shall be read to require a prior criminal

complaint, prosecution or conviction to establish the elements of the

cause of action provided for in this section.

8. The provisions of this section including the remedies are in

addition to, and shall not supersede, any other rights or remedies

available in law or equity.

9. 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. 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.

* NB There are 2 § 52-c's