(1)(a) An 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 website any photograph, video, or other image displaying the private intimate parts of an identified or identifiable person eighteen years of age or older or an image displaying sexual acts of an identified or identifiable person:
(I) With the intent to obtain a pecuniary benefit from any person as a result of the posting, viewing, or removal of the private image; and
(II)(A) When the actor has not obtained the depicted person's consent; or
(B) When the actor knew or should have known that the depicted person had a reasonable expectation that the image would remain private.
(b) Posting a private image for pecuniary gain is a class 1 misdemeanor.
(c) Notwithstanding the provisions of section 18-1.3-501(1)(a) , in addition to any other sentence the court may impose, the court shall fine the defendant up to ten thousand dollars. The fines collected pursuant to this paragraph (c) shall be credited to the crime victim compensation fund created in section 24-4.1-117, C.R.S .
(2) Repealed by Laws 2018, Ch. 192, § 2, eff. July 1, 2018.
(3) Nothing in this section precludes punishment under any section of law providing for greater punishment.
(4)(a) An individual whose private intimate parts have been posted or an individual who has had an image displaying sexual acts of the individual posted in accordance with this section may bring a civil action against the person who caused the posting of the private images and is entitled to injunctive relief, the greater of ten thousand dollars or actual damages incurred as a result of the posting of the private images, exemplary damages, and reasonable attorney fees and costs.
(b) An individual whose private intimate parts have been posted or an individual who has had an image displaying sexual acts of the individual posted in accordance with this section shall retain a protectable right of authorship regarding the commercial use of the private image.
(5) Nothing in this section shall be construed to impose liability on the provider of an interactive computer service, as defined in 47 U.S.C. sec. 230(f)(2) , an information service, as defined in 47 U.S.C. sec. 153 , or a telecommunications service, as defined in 47 U.S.C. sec. 153 , for content provided by another person.
(6) For purposes of this section, unless the context otherwise requires:
(a) “Displaying sexual acts” means any display of sexual acts even if the private intimate parts are not visible in the image.
(b) “Image” means a photograph, film, videotape, recording, digital file, or other reproduction.
(c) “Private intimate parts” means external genitalia or the perineum or the anus or the pubes of any person or the breast of a female.
(d) “Sexual acts” means sexual intrusion or sexual penetration as defined by section 18-3-401 .
(e) “Social media” means 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 website profiles.
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