New York Moving Forward With New Law Regulating Photo Sharing Of Victims

The State of New York is poised to adopt a new law that will make it a criminal offense to disseminate images of the victim of a criminal offense. The new law, referred to as the Grieving Families Act and/or Bianca and Caroline’s Law, is a new alternative to address the ongoing problem posed by digital imagery.

The law is the byproduct of lobbying on behalf of the families and supporters of two women, Bianca Devins and Caroline Wimmer, both of whom were brutally murdered, and photos of their bodies were shared on social media. The Wimmer case involved a photo taken by New York City EMT who responded to her murder in 2009, took a cellphone photo of her body, and posted it to his Facebook. For over a decade, her family has been seeking enactment of a version of Caroline’s Law that would limit phototaking by emergency responders.

Devins was murdered in 2019, and the murderer posted photos of her body on social media. The combination of the two cases caused the state legislature to move in a direction that focused away from limiting photo-taking by emergency responders and toward penalizing the dissemination of photos of the victims of criminal offenses by anyone. The law has been enacted by both houses of the New York legislature, and awaits Governor Kathleen Hochul’s signature. The key to its success thus far is its focus on the dissemination of as opposed to the taking of imagery. Here is a copy of a portion of the law, which creates three degrees of offenses.

§ 250.71 Unlawful dissemination of a personal image in the third degree.

A person is guilty of unlawful dissemination of a personal image in the third degree when, with  the  intent  of  humiliating,  demeaning, degrading  or  abusing  a  person  who has been the victim of an offense described in title H of this part, or otherwise causing harm to the emotional, financial or physical welfare of such victim or such victim’s family,  or  when,  for  his  or her own, or another person’s amusement, entertainment or profit, he or she intentionally:

1. (a) creates and disseminates or publishes a still or video image of such victim, without the victim’s consent, in a manner that has no or limited cultural or social value; and

 (b) the victim is identifiable from the still or video image itself or from information displayed in connection with the still or video image; and

 (c) the image depicts the commission of the offense against the victim or physical injury suffered by the victim as a result of the commission of the offense; or

2. acting as an agent of a person who creates an image as described in subdivision one of this section, he or she disseminates or publishes such image.

Unlawful dissemination of a personal image in the third degree is a class B misdemeanor.

§  250.72  Unlawful  dissemination  of  a  personal  image in the second degree.

A person is guilty of unlawful dissemination of a personal image in the second degree when he or she commits the offense of unlawful dissemination of a personal image in the third degree and:

1.  he or she committed, participated in the commission of, or conspired to commit the offense against the victim; or

2. the victim suffered serious physical injury which is depicted in the unlawfully disseminated image; or

3.  he or she has been convicted within the previous ten years of unlawful dissemination of a personal image in the third degree.

Unlawful dissemination of a personal image in the second degree is a class A misdemeanor.

§ 250.73 Unlawful dissemination of a personal image in the first degree.

A person is guilty of dissemination of an unlawful dissemination of a personal image in the first degree when he or she commits the offense of unlawful dissemination of a personal image in the third degree and:

1.  he or she committed, participated in the commission of, or conspired to commit an offense described in article one hundred twenty- five of this part against the victim; or

2. the victim suffered death or serious physical injury as a result of the application of deadly physical force and such injury, death or the application of deadly physical force is depicted  in  the  unlawfully disseminated image; or

3.  he or she has been convicted within the previous ten years of unlawful dissemination of a personal image in the second degree.

Unlawful dissemination of a personal image in the first degree is a class E felony.

Here is a link to the full bill. It also includes a section that allows the victim’s family to sue to recover damages from offending parties.

From my perspective, the law is an improvement over laws enacted in Connecticut, New Jersey, and California that apply to only emergency responders (police, fire and EMS) but not members of the public. In addition, the law provides exceptions for photos taken:

• during lawful and common practices of law enforcement, legal proceedings or medical treatment;
• images involving activities in a public setting or activities in a commercial setting in which legal activities are being conducted; or
• the dissemination or publication of an image made for a legitimate public purpose.