A3864

An Act concerning invasion of privacy and amending P.L.2003, c.206.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 1 of P.L.2003, c.206 (C.2C:14-9) is amended to read as follows:

1. a. An actor commits a crime of the fourth degree if, knowing that he is not licensed or privileged to do so, and under circumstances in which a reasonable person would know that another may expose intimate parts or may engage in sexual penetration or sexual contact, he observes another person without that person's consent and under circumstances in which a reasonable person would not expect to be observed.

b. (1) An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person's consent and under circumstances in which a reasonable person would not expect to be observed.

(2) An actor commits a crime of the fourth degree if, knowing that he is not licensed or privileged to do so, he photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of the intimate parts of another person, whether naked or clothed, without that person’s consent and under circumstances in which a reasonable person would not expect the intimate parts to be visible, regardless of whether that person is in a public or private place.

c. (1) An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure.

(2) An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of the intimate parts of another person, whether naked or clothed, unless that person has consented to such disclosure.

For purposes of this subsection, "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise [or], offer, share, or make available via the Internet or by any other means, whether for pecuniary gain or not. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine not to exceed $30,000 may be imposed for a violation of this subsection.

d. It is an affirmative defense to a crime under this section that:

(1) the actor posted or otherwise provided prior notice to the person of the actor's intent to engage in the conduct specified in subsection a., b., or c., and

(2) the actor acted with a lawful purpose.

e. (1) It shall not be a violation of subsection a. or b. to observe another person in the access way, foyer or entrance to a fitting room or dressing room operated by a retail establishment or to photograph, film, videotape, record or otherwise reproduce the image of such person, if the actor conspicuously posts at the entrance to the fitting room or dressing room prior notice of his intent to make the observations, photographs, films, videotapes, recordings or other reproductions.

(2) It shall be a violation of subsection c. to disclose in any manner any such photograph, film, videotape or recording of another person using a fitting room or dressing room except under the following circumstances:

(a) to law enforcement officers in connection with a criminal prosecution;

(b) pursuant to subpoena or court order for use in a legal proceeding; or

f. It shall be a violation of subsection a. or b. to observe another person in a private dressing stall of a fitting room or dressing room operated by a retail establishment or to photograph, film, videotape, record or otherwise reproduce the image of another person in a private dressing stall of a fitting room or dressing room.

g. For purposes of this act, a law enforcement officer, or a corrections officer or guard in a correctional facility or jail, who is engaged in the official performance of his duties shall be deemed to be licensed or privileged to make and to disclose observations, photographs, films, videotapes, recordings or any other reproductions.

h. Notwithstanding the provisions of N.J.S.2C:1-8 or any other provisions of law, a conviction arising under subsection b. of this section shall not merge with a conviction under subsection c. of this section, nor shall a conviction under subsection c. merge with a conviction under subsection b.

(cf: P.L.2003, c.206, s.1)

2. Section 2 of P.L.2003, c.206 (C.2A:58D-1) is amended to read as follows:

2. a. An actor who, without license or privilege to do so, photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of another person [whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person's consent and under circumstances in which a reasonable person would not expect to be observed,] or the intimate parts of another person in violation of section 1 of P.L.2003, c.206 (C.2C:14-9) shall be liable to that person, who may bring a civil action in the Superior Court.

b. An actor who, without license or privilege to do so, discloses any photograph, film, videotape, recording or any other reproduction of the image of another person [whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person's consent and under circumstances in which a reasonable person would not expect to be observed,] or the intimate parts of another person in violation of section 1 of P.L.2003, c.206 (C.2C:14-9) shall be liable to that person, who may bring a civil action in the Superior Court. For purposes of this section, "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise [or], offer, share, or make available via the Internet or by any other means, whether for pecuniary gain or not.

c. The court may award:

(1) actual damages, but not less than liquidated damages computed at the rate of $1,000.00 for each violation of this act;

(2) punitive damages upon proof of willful or reckless disregard of the law;

(3) reasonable attorney's fees and other litigation costs reasonably incurred; and

(4) such other preliminary and equitable relief as the court determines to be appropriate.

(cf: P.L.2003, c.206, s.2)

3. This act shall take effect immediately.

STATEMENT

This bill would amend P.L.2003, c.206 to protect a person’s right to privacy underneath their clothing by establishing the crime of “upskirting.”

“Upskirting” is a type of invasion of privacy that occurs, often in a public place such as a bus or train, when a person conceals or strategically places a camera, cell phone, or other recording device under another person’s dress or skirt, or down a blouse, to capture the image of a person’s intimate parts. A number of Internet websites have been established by perpetrators for the purpose of sharing these images.

Under section 1 of P.L.2003, c.206 (C.2C:14-9), it is a crime of the third degree for a person to photograph another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person’s consent and under circumstances in which a reasonable person would not expect to be observed. It is a crime of the third degree if a person, knowing that he is not licensed or privileged to so, discloses any photograph of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person’s consent. The term “disclose" is defined as selling, manufacturing, giving, providing, lending, trading, mailing, delivering, transferring, publishing, distributing, circulating, disseminating, presenting, exhibiting, advertising or offering.

Prosecuting the crime of upskirting based current invasion of privacy law has proved challenging in other states. Difficulties have arisen from the fact that the intimate parts of an upskirting victim, who is typically clothed and in a public place, are only “exposed” by the placement of the recording device.

In order to prevent such challenges in New Jersey, this bill would amend section 1 of P.L.2003, c.206 (C.2C:14-9), to provide that it is a crime of the fourth degree if, knowing that he is not licensed or privileged to do so, a person photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of the intimate parts of another person, whether naked or clothed, without that person’s consent and under circumstances in which a reasonable person would not expect the intimate parts to be visible, regardless of whether that person is in a public or private place. In addition, a person would be guilty of a crime of the third degree if, knowing that he is not licensed or privileged to do so, a person discloses any photograph, film, videotape, recording or any other reproduction of the image of the intimate parts of another person, whether naked or clothed, without that person’s consent.

The bill would also amend section 2 of P.L.2003, c.206 (C.2A:58D-1) to establish a civil cause of action for the crime of upskirting, for which the court may award actual damages, punitive damages, and reasonable attorney’s fees.

In addition, the bill would expand the definition of “disclose” to include sharing or making images available via the Internet or by any other means, whether for pecuniary gain or not. The bill would take effect immediately.