Is it Illegal to Post a Picture of Someone Online without their Permission?

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Like it or not, we live in a digital world where our daily lives are chronicled online through sites like Facebook, Twitter, Instagram, Tumblr, and LinkedIn. Many people enjoy sharing personal photos and videos on the internet, but serious legal problems can arise if you post someone else’s image without their consent. Salt Lake City sex crime lawyer Darwin Overson explains Utah’s “revenge porn” law – and the consequences that can result from sharing sexually explicit material without the subject’s permission.

Is it Legal to Share Pornography Online without the Subject’s Consent?

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It’s only recently that the sharing of “revenge porn” – or, to use the technical term, “distribution of an intimate image” – has been recognized as a criminal offense in Utah. Unlike assault, burglary, murder, and countless other offenses which have been recognized as criminal acts throughout Utah’s history, distribution of an intimate image became a crime just two years ago with the passage of House Bill 71. In a political era often characterized by gridlock, the bill enjoyed bipartisan support from Democratic and Republican legislators, and was signed into law by Governor Gary Herbert in May 2014.

With the passage of HB71, distribution of intimate images became a crime as of May 13 under Utah Code § 76-5b-203, which is now part of Utah’s Sexual Exploitation Act. This statute makes it a crime to share sexually explicit content, including simulated acts, if all of the following facts are true:

  • The poster knew that the subject did not give his or her consent. (Utah Code § 76-5b-203(2)(a))
  • The subject had a reasonable expectation of privacy considering the circumstances in which their image was captured by, or given to, the poster. (Utah Code § 76-5b-203(2)(b))
    • A “reasonable expectation of privacy” is an important legal concept rooted in the Fourth Amendment, which protects everyone’s right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” It periodically arises in various types of criminal cases, especially those involving drug crimes or weapons crimes where a police search for contraband was conducted. Each case must be individually analyzed to determine whether or not the pertinent person – often the defendant, but in this scenario, the subject of the explicit content – had a reasonable expectation of privacy.
  • The subject suffers emotional harm or distress as a result of their image being shared. (Utah Code § 76-5b-203(2)(c))
  • The poster shared the image for the purpose of causing emotional harm or distress. (Utah Code § 76-5b-203(2))
  • The poster shared the image intentionally. (Utah Code § 76-5b-203(2))
  • The subject was at least 18 years old. (Utah Code § 76-5b-203(2))
    • If the subject was a minor (17 or younger at the time the image or video was taken), the offense is no longer distribution of an intimate image, but distribution of child pornography (“sexual exploitation of a minor”). Child pornography distribution is a more serious crime than distribution of an intimate image.

What is the Jail Sentence for Posting Revenge Porn on the Internet?

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Back in March 2014 when HB71 was still under consideration, the bill initially sought to make a first offense a Class C misdemeanor, which is the least serious type of misdemeanor a person can be charged with in Utah. However, the version of the bill which actually passed in the Legislature made the crime substantially more serious by elevating it to a Class A misdemeanor, which is the most serious type of misdemeanor you can be charged with.

Because of this classification, you can be fined up to $2,500 – and, more seriously, be sentenced to a full year in jail – if you are found guilty of sharing revenge porn. If you do it a second or subsequent time, the offense becomes a third degree felony, which means you can be imprisoned for up to five years while being fined as much as $5,000. Additionally, because the conviction is a felony, you will be prohibited from owning or buying a firearm due to Utah’s gun restrictions for convicted felons.

Finally, it’s important to note that, despite the term “revenge,” these offenses do not necessarily have to involve the defendant’s ex-boyfriend, ex-girlfriend, ex-husband, or ex-wife. Distributing a private sexual image of any adult without permission can potentially lead to criminal charges under Utah’s revenge porn statute.

Charged with Uploading Revenge Porn in Utah? Contact a Salt Lake City Defense Lawyer

Sharing revenge porn online can cause you to be heavily fined and imprisoned for months or even years. You will also gain a criminal record, which can interfere with your job searches, license applications, and other responsibilities – especially if the offense involves a felony. Despite legal protections that are meant to protect reformed former felons from facing undue hardship and discrimination, the fact is that a criminal record is a heavy burden to bear when you are applying for jobs, loans, or housing.

If you have been accused of distributing revenge porn or child pornography, you need to move quickly to protect your rights by contacting a skilled and experienced Utah defense attorney as soon as possible. In a legal career spanning more than 16 years, Salt Lake City revenge porn defense lawyer Darwin Overson has worked on thousands of criminal cases, including extremely serious felonies and sex crimes. Salt Lake City criminal defense lawyer Darwin Overson handles cases throughout Utah, and is able to make emergency jail visits where needed, including the Salt Lake County Jail.

It is critical to seek legal assistance if you or someone you know has been arrested for distributing pornography without the subject’s permission. Call the law offices of Overson Law at (801) 758-2287 right away for a free consultation.