Getting Relief Under Colorado’s New Revenge Porn Laws

 

What is Revenge Porn?

“Revenge porn” refers to non-consensual publication of explicit images for the purpose of harassing or inflicting emotional distress on the subject of the image, or for pecuniary gain. Victims of revenge porn are those who find private intimate images of themselves posted online without their consent. Commonly, these images were originally created by victims themselves to bolster intimacy in a romantic relationship with a trusted person. Once this relationship ends, the once-trusted recipient of the images seeks to embarrass, humiliate, or harass the person depicted by posting these images publicly. Alternate motivation is to sell these images for pecuniary gain. Other scenarios where intimate images have been distributed without permission have involved roommates, landlords, hackers, and voyeurs.

Colorado’s Revenge Porn Laws

In late May 2014, Colorado passed two statutes criminalizing revenge porn. These statutes went into effect on July 1, 2014. C.R.S. § 18-7-107 established the first new revenge porn offense—posting a private image for harassment. This statute states that an actor who is eighteen years of age or older commits the offense of posting a private image for harassment if he or she posts or distributes through the use of social media or any web site any photograph, video, or other image displaying the private intimate parts of an identified or identifiable person eighteen years of age or older with the intent to harass the depicted person and inflict serious emotional distress upon the depicted person. The final element of the offense under this statute is that the conduct must have resulted in serious emotional distress of the depicted person. C.R.S. § 18-7-108 established the second new revenge porn offense—posting a private image for pecuniary gain. This statute states that actor who is eighteen years of age or older commits the offense of posting a private image for pecuniary gain if he or she posts or distributes through social media or any web site any photograph, video, or other image displaying the private intimate parts of an identified or identifiable person eighteen years of age or older with the intent to obtain a pecuniary benefit from any person as a result of the posting, viewing, or removal of the private image.

Both statutes define “private intimate parts” as “external genitalia or the perineum or the anus or the pubes of any person or the breast of a female.” Both statutes define “social media” as “any electronic medium, including an interactive computer service, telephone network, or data network, that allows users to create, share, and view user-generated content, including but not limited to videos, still photographs, blogs, video blogs, podcasts, instant messages, electronic mail, or internet web site profiles.”

Under both statutes, the image must have been posted without the depicted person’s consent or when the actor knew or reasonably should have known that the depicted person had a reasonable expectation that the image would remain private.

However, it is important to note that the statute does not criminalize photographs, videos, and images related to a newsworthy event. Under the statutes, “newsworthy event” is defined as “a matter of public interest, public concern, or related to a public figure who is intimately involved in the resolution of important public questions, or by reason of his or her fame shape events in areas of concern to society.” Additionally, the statutes provide immunity for interactive computer services, information services, and telecommunications services for content generated by third party users.

Both offenses created by the new statutes are classified as Class 1 misdemeanors. Perhaps one of the most significant conceptions under the new statutes is that, in addition to any other sentence the court may deem proper, the defendant shall be fined up to $10,000 for committing either offense. The statutes specifically enumerate that any fines collected from defendants under this law go toward the Crime Victim Compensation Fund (created in C.R.S. § 24-4.1-117).

An individual whose private intimate parts have been posted in accordance with these statutes may bring a civil action against the person who caused the posting of the private images. Victims of the offenses outlined in these statutes are entitled to injunctive relief and the greater of $10,000 or actual damages incurred as a result of the posting of the private images, exemplary damages, and reasonable attorney’s fees and costs. Additionally, the statutes provide a form of intellectual property protection for victims in that victims of the offenses created by the statutes shall retain a protectable right of authorship regarding the commercial use of the private image.

How a Privacy Law Firm Can Help Colorado’s Revenge Porn Victims

Privacy attorneys can help victims of revenge porn by using legal expertise to establish the elements of these offenses in a court of law. Privacy attorneys will help victims show: 1) that the images of the victim fall under the category of images outlined in the statutes; 2) that the victim was identifiable in the images posted; 3) that the images were posted with the requisite intent; and 4) that the images were either posted without the victim’s consent or that the actor posted the images knowing that the victim had a reasonable expectation of privacy. This will provide relief for victims and justice for offenders.

By Katelynn Merkin, HopkinsWay PLLC. | © HopkinsWay PLLC 2014. All rights reserved.

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