According to Colorado statutes, posting a private image for pecuniary gain is against the law. This means posting a private image of another person, without his or her permission, for financial gain or any other asset.
Posting a private image for pecuniary gain is a class 1 misdemeanor, which means it carries penalties of a costly fine and time spent in jail.
In this article, our Colorado criminal defense lawyers will address:
- 1. What is posting a private a private image for pecuniary gain?
- 2. What are the penalties?
- 3. What are the best defenses?
- 4. Related Offenses
According to Colorado statutes, posting a private image for pecuniary gain is against the law. This offense consists of an individual who posts an image of another person without their permission for financial gain or any other asset.
1. What is posting a private image for pecuniary gain?
Posting a private image for pecuniary gain occurs when a person who is 18 years of age or older distributes or posts images or videos on social media in exchange for money. This involves images or videos that contain private, intimate parts of an identified or identifiable person who is over the age of 18.
In order to be convicted of the crime of posting a private image for pecuniary gain, a prosecutor must be able to prove all of the following elements:
- The defendant posted the pictures of the depicted person with the intent to obtain a monetary benefit as a result of the posting, viewing, or removal of the picture; and
- The defendant posted the pictures without the consent of the depicted person or was aware that the depicted person had a reasonable expectation to believe that the images would remain private. 1
For example, let’s say that a woman decides to post a series of intimate pictures of her ex-husband on Facebook for all of their friends, acquaintances, and family to see. She claims that she will only take the picture down if he agrees to pay for his half of the rent for one last month on their shared apartment. If the ex-husband decides to alert the authorities, or another person reports the posts, the woman could be arrested and charged for posting a private image for pecuniary gain.
Colorado statutes define the terms “private intimate parts” and “social media.” Private intimate parts are considered the external genitalia, or the perineum or the anus or the pubes of any person or the breast of a female. 2
“Social media” is explicitly referred to 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 website profiles. 3
2. What are the penalties?
Posting a private image for pecuniary gain is classified as a class 1 misdemeanor. Upon the conviction of this crime, a person may face penalties of up to 364 days in jail and a mandatory fine of up to $10,000.
Due to a relatively new law enacted in 2014, this fine is significantly more costly than the standard fine associated with a class 1 misdemeanor in the state. The maximum fine for most other class 1 misdemeanors is $1,000. Colorado elevated the fines for this crime to reinforce the state’s position that it will not take charges of this offense lightly.
In addition to criminal charges, a depicted person may be able to bring a civil claim against a person who allegedly posted the images to seek compensatory damages. 4
3. What are the best defenses?
Under Colorado statutory law, if a person posts an image, photograph or video that is related to a “newsworthy event,” he or she can not be convicted for posting a private image for pecuniary gain.
A newsworthy event is referred to as a matter of public interest, of 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, shapes events in areas of concern to society. 5
4. Related Offenses
Posting an image for pecuniary gain is related to the crime of posting a private image for harassment.
Posting a Private Image for Harassment (Revenge Porn) CRS 18-7-107
This offense, which is also commonly known as “revenge porn”, occurs when a person posts intimate pictures of a depicted person online with the purpose of harassing or upsetting them. If the depicted person does suffer serious emotional distress due to this misconduct, the person who posted the pictures may be convicted. Posting a private image for harassment (revenge porn) is classified as a class 1 misdemeanor, which carries penalties of up to 364 days in jail and a fine of at least $10,000.
Legal References
- C. R. S. 18-7-108. The language of the statute reads as follows:
(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) Repealed by Laws 2019, Ch. 88 (S.B. 19-100), § 3, eff. Apr. 8, 2019.
(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.
- C. R. S. 18-7-108(6)(b)
- C. R. S. 18-7-108(6)(c)
- C. R. S. 18-7-108(4). Prior to March 1, 2022, class 1 misdemeanors carried up to 18 months in jail and/or up to $5,000 in fines. SB21-271.
- C. R. S. 18-7-108(6)(a)