Court Narrowly Construes NYC’s “Revenge Porn” Law; Requires “Direct” Receipt of Intimate Images

In Litwin v. Hammond Hanlon Camp, LLC, 2019 NY Slip Op 51475(U) (Sup. Ct. NY Cty. Sept. 9, 2019), the court dismissed plaintiff’s complaint asserting a violation of NYC’s “revenge porn” law, now codified at NYC Admin. Code § 10-180[b][1].

The alleged facts, distilled and simplified, are as follows: Plaintiff (P), an employee of defendant, entered into a romantic relationship with Michael Hammond (M), who is not employed by defendant. M’s brother, Gregory Hammond (G), is an officer of defendant. P forwarded intimate photos of herself to M. After P’s and M’s relationship ended, M sent the photos to G without P’s consent, after which G widely distributed the photos to defendant’s employees.

Plaintiff asserted a claim under NYC Admin. Code § 10-177[d] (re-codified as NYC Admin. Code § 10-180[b][1]). That statute, in pertinent part, provides:

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. (NYC Admin. Code § 10-180[b][1].)

It, in turn, defines “covered recipient” as “an individual who gains possession of, or access to, an intimate image from a depicted individual, including through the recording of the intimate image.” (NYC Admin. Code § 10-180[a].)

Defendants HHC and Gregory assert, inter alia, that neither is a “covered recipient” because neither received the intimate images “from” the plaintiff within the meaning of the statute. The court agrees.

Ultimately, the outcome turned on a narrow question, namely: whether under the statute a “covered recipient” must receive the intimate image “directly” from the depicted individual, or whether receiving said image “indirectly” is sufficient.

The court holds that “direct” receipt is required:

Plaintiff has not alleged in the complaint that either HHC or Gregory received “intimate images” of Plaintiff directly, but rather she claims these images were transmitted to Michael who forwarded them on. Section 10-180[a] of the Administrative Code of City of NY is silent as to whether a “covered person” must receive “intimate images” directly or indirectly from the “depicted individual”. However, the legislative history of this law expressly indicates that the prohibition covers “intimate images” received “directly” from the depicted person and that “the prohibition does not cover an individual who received or accesses an intimate image indirectly” (see New York City Council, Committee on Public Safety, Report of the Governmental Affairs Division on Proposed Int. No. 1267-A, November 1, 2017 at 10[.]

Based on this, the court – while acknowledging the “reprehensible”, “callous”, and “shameful” conduct at issue – concluded that “since it is not alleged in the complaint that either HHC or Gregory received images directly from Plaintiff, neither are ‘covered individuals’ and Plaintiff’s first cause of action against these Defendants fails as a matter of law.”

Perhaps, and hopefully, the court’s observation that “[f]or the correction of alleged deficiencies in the statutory scheme, Plaintiff’s appeal lies to the ballot and to the legislative processes of democratic government, not to the courts” will spur legislative action to address this apparent “loophole” in the statutory language and, consequently, the protection the law provides to revenge porn victims.