NYC Administrative Code 10-180, Unlawful Disclosure of an Intimate Image
In New York City, it is a criminal and civil offense to disclose or threaten to disclose another person’s intimate image with the intent to cause harm. Victims of revenge porn in New York City are protected by the NYC Admin Code 10-180, Unlawful disclosure of an intimate image. The law only applies to victims living in Manhattan, Queens, Bronx, Staten Island, and Brooklyn. When the law was first enacted in 2018, it was found in NYC Admin Code 10-177.
History of the New York City Revenge Porn Law
On December 17, 2017, the New York City Council enacted Administrative Code 10-180. Written by New York City Councilmember Rory Lancman, the bill was passed unanimously. At the time, then-Speaker Melissa Mark-Viverito spoke about the importance of the law. Speaker Mark-Viverito told the council chambers “in an intimate relationship, both partners should feel safe in the knowledge that sexual photos or videos they may have shared with each other will never be made public without their consent. Unfortunately, as the technology to easily share photographs and videos expand, we are hearing more and more stories of people maliciously distributing intimate photos or videos as a means of punishing a current or former partner.”
The law was meant to prohibit the non-consensual distribution of sexually explicit videos or images, commonly known, as revenge porn of another person with the intent to cause harm to the individual depicted in such videos or images. The bill was also meant to prohibit any legitimate threats to do so, and create both a criminal penalty and a civil cause of action.
Since the law’s enactment in 2017, our firm’s revenge porn attorneys have filed multiple lawsuits under the law.
The Elements of NYC Administrative Code 10-180, Unlawful Disclosure of an Intimate Image
The New York City revenge porn law makes it illegal for a person to disclose an intimate image, without the victim’s consent where the victim is or could be identifiable.
To understand whether Administrative Code 10-180 applies to you, you have to figure out if you are a depicted individual and if the perpetrator is a covered recipient under the law. Since the law is based on criminal acts, the defendants need to have shared the naked images or sex tapes with the intent to cause economic, physical, or substantial emotional harm.
Unlike with a Family Offense Petition, the victim and abuser do not need to be in a relationship.
Am I a Victim under NYC Administrative Code 10-180?
A victim of revenge porn living in New York City is protected by the law if they are a “depicted individual”. While this is an odd phrase, NYC Admin Code 10-180 defines a depicted individual as the person in the photograph, film, videotape, or recording under three different situations. First, a victim can sue if a picture or video shows fully or partially exposed intimate body parts. Intimate body parties include genitals, pubic area or anus of any person, or the female nipple or areola of a person who is 11 years old or older.
Second, a victim is a depicted individual if the photographs or recording show the person with another person whose intimate body parts are exposed and the recording was made right before or after sexual activity. This means that the revenge porn victim does not need to be naked in the photographs, it is enough that the abuser is naked.
Third, a person is a depicted individual if the video or images show them engaged in sexual activity. Sexual activity means, sex, anal sex, oral sex, masturbation, touching of breasts, sexual penetration with any objection, or the appearance of semen on any part of the body. This is a very broad definition that essentially includes any sexual act, alone or with someone else.
Victims only need to fit into one of the three categories.
Who is a Covered Recipient under NYC Administrative Code 10-180?
Even if you are defined as a depicted individual, the person who shares the naked photograph or sex tape needs to be a “covered recipient.” A perpetrator can only be held accountable under the revenge porn law if he or she received the recording directly from the victim. This part of the law significantly limits the number of individuals who can be sued under the Admin Code 10-180. If the culprit did not obtain the photographs from you directly, it is important to consult with a revenge porn attorney to see what other options are available, including Civil Rights Law 52-B and intentional infliction of emotional distress.
A person who takes the nude photograph or records the sex act is also defined as a covered recipient.
Are All Naked Photographs Intimate Images under the Law?
Not all naked photographs are considered intimate images under NYC Admin Code 10-180. Initially, nude images taken in public are not protected by the law unless the victim does not think any other person could see them naked. For example, a photograph taken on a rooftop or video taken on an empty street would be considered an intimate image; pictures taken on a nude beach full of bathers would not.
A nude photograph is an intimate image if it has been shared with a person in a manner in which, or to a person or audience to whom, the victim did not intend. Theoretically, if a person allows five people to view an image, this does not mean everyone is allowed to see the photographs; the victim has the right to say who gets to see his or her pictures.
Threats of Sharing Naked Photographs Are Actionable under NYC Administrative Code 10-180
Another unique protection given to victims under NYC Admin Code 10-180 is a perpetrator does not need to share the naked photographs or sex tape to be liable. The threat to share the intimate image is enough for a victim to go to the police or file a lawsuit.
The Culprit’s Intent Matters
Simply sharing intimate images is not enough, a culprit needs to disclose the naked photographs with the intent to cause economic, physical, or substantial emotional harm.
The Entire Text of NYC Administrative Code 10-180, Unlawful Disclosure of an Intimate Image
a. Definitions. As used in this section, the following terms have the following meanings:
Consent. The term “consent” means permission that is knowingly, intelligently and voluntarily given for the particular disclosure at issue.
Covered recipient. The term “covered recipient” means an individual who gains possession of, or access to, an intimate image from a depicted individual, including through the recording of the intimate image.
Depicted individual. The term “depicted individual” means an individual depicted in a photograph, film, videotape, recording or any other reproduction of an image that portrays such individual (i) with fully or partially exposed intimate body parts, (ii) with another individual whose intimate body parts are exposed, as recorded immediately before or after the occurrence of sexual activity between those individuals, or (iii) engaged in sexual activity.
Disclose. The term “disclose” means to disseminate as defined in subdivision 5 of section 250.40 of the penal law, or to publish as defined in subdivision 6 of section 250.40 of the penal law.
Intimate body parts. The term “intimate body parts” means the genitals, pubic area or anus of any person, or the female nipple or areola of a person who is 11 years old or older.
Intimate image. The term “intimate image” means a photograph, film, videotape, recording or any other reproduction of an image of a depicted individual that has been disclosed or threatened to be disclosed in a manner in which, or to a person or audience to whom, the depicted individual intended it would not be disclosed, at the time at which 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 section 240.00 of the penal law, 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. The term “sexual activity” means sexual intercourse as defined in subdivision 1 of section 130.00 of the penal law, oral sexual conduct or anal sexual conduct as those terms are defined in subdivision 2 of section 130.00 of the penal law, 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.
b. Unlawful disclosure of an intimate image.
1. It is unlawful for a covered recipient to 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.
2. It is unlawful for a covered recipient to make a threat to violate paragraph 1 of this subdivision, provided that for the purposes of this paragraph a depicted individual shall be considered to be identifiable where the covered recipient states or implies that such person would be so identifiable.
c. Criminal penalty. Any individual who violates subdivision b of this section shall be guilty of a misdemeanor punishable by up to one year in jail, or a fine of up to $1,000, or both.
d. Civil cause of action.
1. Any individual who suffers harm from a violation of subdivision b of this section shall have a civil cause of action in any court of competent jurisdiction against the individual who violated that subdivision.
2. The defendant may be held liable to the plaintiff for any or all of the following relief:
(a) Compensatory and punitive damages;
(b) Injunctive and declaratory relief;
(c) Attorneys’ fees and costs; and
(d) Such other relief as a court may deem appropriate.
3. This subdivision shall not be construed to require that a criminal charge be brought, or a criminal conviction be obtained, as a condition of bringing a civil action or receiving a civil judgment pursuant to this subdivision.
e. Provisos. The prohibitions contained in subdivision b do not apply if:
1. Such 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 the conduct of their authorized duties;
2. Such disclosure is made by a provider of an interactive computer service, as defined in paragraph (2) of subsection (f) of section 230 of title 47 of the United States code, with regard to content provided by another information content provider, as defined in paragraph (3) of such subsection; or
3. Such 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.
(Source: AM Legal)