By Abbey Marr, Charlie Pensabene & Adam Wolkoff, Office of General Counsel
On July 23, 2019, Governor Andrew M. Cuomo signed into law a bill creating the new crime of Unlawful Dissemination or Publication of an Intimate Image (Penal Law §245.15), a class A misdemeanor.
The new law creates criminal and civil penalties for the unauthorized sharing of sexually-intimate images. Campus administrators have struggled to protect students from the devastating effects of being exposed in this way, as taking and sharing photographs and videos has become easier and less expensive. While many colleges and universities already police this misconduct, often referred to as nonconsensual pornography, or “revenge porn,” through their Title IX process, the new law will help campuses bring more resources to bear on the problem.
As this law is effective on September 21, 2019, at the start of the fall semester, it is critical that student affairs officials, residence life staff, and law enforcement/public safety officials be trained on the new law so they can guide students toward the most appropriate response for their situation.
More broadly, the passage of this law and continuing developments in Title IX case law should spur campuses to consider how they police their digital environment, and what protections they offer students victimized by forms of sexual harassment online.
Please note that this memorandum is shared publicly as compliance guidance and does not constitute legal advice for non-SUNY entities. No attorney-client relationship is formed
The crime of “Unlawful Dissemination or Publication of an Intimate Image” is now a Class A misdemeanor, which is the most severe type of misdemeanor offense in the New York Penal Law, punishable with up to a maximum of one year in jail or three years’ probation, along with monetary fines.
This crime has two major elements. First, it occurs when a person who intends “to cause harm to the emotional, financial or physical welfare” of another person, “intentionally disseminates or publishes a still or video image” of that other purpose.
The other person must be identifiable from that published image or video or from information displayed in connection with the image or video. Moreover, the other person cannot have consented to this publication.
The image or video itself must either depict “an unclothed or exposed intimate part” of the other person, meaning “the naked genitals, pubic area, anus or female nipple of the person,” or it must depict “such other person engaging in sexual conduct as defined in Penal Law section 130.00 (10) with another person.”
Second, the image or video has to have been taken “under circumstances when the person depicted had a reasonable expectation that the image would remain private and the actor knew or reasonably should have known the person depicted intended for the still or video image to remain private, regardless of whether the actor was present when the still or video image was taken.”
This element ensures that the non-consensual publication of images can be punished even if the person depicted had initially consented to the taking of the image. Conversely, it means that the publication cannot be punished if the circumstances were such that the person depicted did not have a reasonable expectation the image would remain private.
The definitions of “disseminate” and “publish” are the same as from Penal Law Section 250.40:
“‘Disseminate’ means to give, provide, lend, deliver, mail, send, forward, transfer or transmit, electronically or otherwise to another person.”
“‘Publish’ means to (a) disseminate, as defined in subdivision five of this section, with the intent that such image or images be disseminated to ten or more persons; or (b) disseminate with the intent that such images be sold by another person; or (c) post, present, display, exhibit, circulate, advertise or allows access, electronically or otherwise, so as to make an image or images available to the public; or (d) disseminate with the intent that an image or images be posted, presented, displayed, exhibited, circulated, advertised or made accessible, electronically or otherwise and to make such image or images available to the public.”
The law does not forbid reporting unlawful conduct, or disseminating images within the lawful and common practices of law enforcement, legal proceedings, or medical treatment. It does not apply to “voluntary exposure in a public or commercial setting [or] dissemination or publication of an intimate image made for legitimate public purpose.”
Along with criminal penalties, the new law amends the State Civil Rights Law to allow for a private right of action (civil lawsuit) using the same definitions as the criminal provision in this law. The new private right of action piggy-backs on an existing law (Civil Rights Law §52-b) that allows a homeowner to sue a neighbor for installing a spy camera pointed at their backyard without consent.
Through this private right of action, victims may obtain money damages and civil injunctions against those who have posted their image online. A victim could bring a civil lawsuit and seek a temporary restraining order at the same time, on the ground that continued publication and dissemination of the content would cause irreparable injury. Under New York civil procedure, a temporary restraining order can be issued without notice, with a hearing set for the earliest possible time afterward. The content would then be ordered removed pending the outcome of the lawsuit. Ultimately, if the plaintiff wins, they can receive monetary damages for harm done and an order to permanently take the images down.
Unfortunately, the ability of an individual to use this civil remedy to remove nonconsensual pornography has significant limitations. If the content is posted to an online intermediary, that website would probably be shielded from civil liability under the federal Communications Decency Act. Section 230 of that Act provides immunity to online intermediaries for material posted by third-parties, which will make it difficult, if not impossible, to successfully sue them in a New York state court. While victims are not barred under the Communications Decency Act from bringing a copyright claim, they usually cannot bring the claim if they did not actually take the image; it’s the maker of the image that holds the copyright, not the subject.
Note that, in anticipation of this weakness, the new law creates section Civil Rights Law §52-b(4), which allows individuals to bring an action or special proceeding in a New York court for a court order to require a website to permanently remove an image determined to violate Penal Law section 130.00 (10) if that image is reasonably within the website’s control. Therefore, federal law is not an absolute bar to state court actions to remove nonconsensual pornography.
Based on their concern for the safety of students and existing federal and state requirements, colleges and universities have already taken the initiative to address the spread of nonconsensual pornography on campus. The new law provides new tools to combat the problem, and points to broader set of conversations campuses should have around policing their digital environment.
Spreading nonconsensual pornography can create a hostile environment for education on the basis of sex, so many campuses have already made efforts to stop it through their Title IX process. In fact, to the extent that a campus can directly control the dissemination of nonconsensual pornography, it likely has a Title IX obligation to do so. Most recently, the Fourth Circuit Court of Appeals held that an institution's obligations to prevent sexual harassment extend to the internet, provided that the institution has “substantial control” over the web platform used for harassment, including the ability to identify the harassers and disable their access to the campus network. See, Feminist Majority Foundation v. Hurley, 911 F.3d 674 (4th Cir. 2018).
Colleges and universities may wish to respond to reports of nonconsensual pornography through their existing process for handling complaints of sexual harassment. The knowing distributors of nonconsensual pornography engage in the creation of a hostile environment that limits the depicted students’ ability to equally access educational opportunities. The parties to investigations arising from nonconsensual pornography would be entitled to the same protections afforded to parties in other matters arising from sexual harassment, as defined in the institution’s policies and procedures and Title IX law and guidance.
But there are technological limits to what a Title IX office can do to investigate the source of the posting. Even if the campus can identify the source, it may lack the technological or legal ability to pull such content from the internet, particularly if it has been posted to a third-party platform not on the campus’ servers.
Given these limitations, campuses can fully acquaint themselves with the new criminal and civil processes and share the pros and cons of these options with reporting individuals. Law enforcement often can identify the source of the posting, prosecute the perpetrator, and send a strong signal that such posting will not be tolerated on campus. And, through civil injunctions, courts may be able to order the immediate removal of intimate images under a lower standard of proof than required in a criminal case.
Campuses may wish to consider how to integrate the outcome of criminal and civil proceedings arising from “revenge porn” into their conduct practice. As campus codes of conduct generally prohibit actions that violate State law, students found guilty of violating Penal Law 245.15 would likely face parallel disciplinary charges. It is unclear whether a civil finding against a student for unlawfully disseminating intimate images (made under the preponderance of the evidence standard) would similarly give rise to conduct charges. If a campus code of conduct does not specifically prohibit nonconsensual pornography or “revenge porn,” then such misconduct could fall under general prohibitions against sexual harassment.
Alternatively, campuses may consider adopting specific code prohibitions against nonconsensual pornography. The Appendix to this memorandum includes model code language.
In sum, unlawful dissemination of an intimate image is a form of sexual harassment that has been, and continues to be, prohibited under Title IX. Campuses have a duty to take whatever steps they can to prevent and address it. New York law now offers several powerful tools that campuses can integrate into their existing Title IX process and share widely with students this academic year.
Violation: Distribution of nonconsensual pornography
It is a violation of the Code of Conduct to knowingly distribute a sexually graphic image of another person without their consent.
Images include still photographs and videos.
Sexually graphic images show an unclothed or exposed intimate part of the other person, meaning the naked genitals, pubic area, anus or female nipple of the person, or depict the other person engaging in sexual conduct.
Consent means “affirmative consent,” as defined in Section ____ of the Code of Conduct.
Distribution refers to the sharing of images originally obtained without consent through the use of hidden cameras, hacking phones, or other recording devices, as well as images obtained with the consent of the depicted person, but distributed without the permission of the person depicted in the images. A person’s consent to the taking of a sexually graphic image is not consent to the distribution of that image.
This prohibition does not apply to the report of unlawful conduct, dissemination within the lawful and common practices of law enforcement, legal proceedings, or medical treatment, or the voluntary distribution of a sexually graphic image made for a legitimate public purpose.