Entering our defend Taylor from misogynists era. Our girl has been targeted throughout her career – often by mobs of angry, grown men whether fueled by Kanye, football fans who are selective about the kind of woman they want to see on the sidelines, and now political conspiracy theorists. And on top of all that, she was just the victim of image based sexual abuse when AI generated explicit images purporting to be her were distributed on various social media platforms.
Getting these wiped from the internet once they're out there is a technical challenge outside of our wheelhouse, but what about any legal remedies against the perpetrator? In New York, we do have a law against this. Originally, disseminating an intimate or explicit photo of someone without their consent was called “revenge porn.” Revenge because often these photos were shared with an intimate partner who, perhaps after a break up, started circulating them. The legal name in the statute is “unlawful dissemination or publication of an intimate image” and we now refer to this practice as image based sexual abuse. New York Penal Law 245.15.
The original law did not address the issue of AI deep fakes, but was amended in the second part of 2023 to catch up to this newer, ugly development in technology, by adding language to the effect that an intimate image includes "an image created or altered by digitization."
The crime prohibits the posting of an image or video depicting exposed intimate parts of another person's body or that person engaged in sexual conduct, where the posting is made with the intention to cause harm to the victim. The law also adds this crime to the list of offenses over which Family Court has concurrent jurisdiction with the criminal courts.
The law also establishes what is called a “private right of action” which means that a victim can pursue a lawsuit against the perpetrator, apart from any criminal proceedings. The civil action is at Civil Rights Law 52-b. The civil cause of action has some teeth because it allows for not only compensatory damages (damages that compensate you for a particular loss either financial and/or emotional), but also punitive damages (meant to punish you) and costs and attorneys' fees. The availability of attorneys' fees and punitive damages are particularly important because sharing an intimate image may not necessarily result in a quantifiable economic loss that more commonly results in a significant award of damages in other types of cases like in the personal injury or employment context.
Another significant provision in the civil cause of action is the discovery rule included in the statute of limitations. The statute of limitations is either 3 years from the date of the publication of the intimate image, or 1 year from the date of discovery of the publication. Discovery rules are not that common in New York law and help to preserve a claim under circumstances where an individual may not know or have reason to know they have been victimized. (Within the last few years, New York added a much-needed discovery rule to the statute of limitations on a medical malpractice claim based on failure to diagnose cancer).
Finally, the civil cause of action also permits a victim to commence an action or proceeding against a website in order to have the intimate image or video removed.
If you have been the victim of image based sexual abuse, give us a call. We're happy to see if we can help.
