Technology is the new way that people communicate with one another. Today people take pictures and videos of themselves and others and share them for the viewing pleasure of their virtual followers. However, there have been negative instances where pictures have been shared publicly without the consent of someone in the picture. With text messages being so common, often people send pictures to one another that they expect to remain private. Perhaps one may be in a long-distance relationship and their partner has requested a nude or semi-nude photograph or a partner may simply just want a nude picture on his or her smart phone for viewing pleasure. When such photographs are sent, the sender typically expect these sorts of pictures to remain private and just between the sender and the receiver. But, as we all know, sometimes friendships and relationships do not work out and can turn sour. North Carolina recently made significant changes to its “revenge porn” statute, which specifically addresses the crime of disclosing private images. Under North Carolina General Statute subsection 14-190.5A, a person will be found guilty of disclosure of private images if the following five elements can be proven:
- The person knowingly discloses an image of another person with the intent to do either of the following:
- Coerce, harass, demean, intimidate, humiliate, or cause financial loss to the depicted person.
- Cause others to coerce, harass, humiliate, intimidate, demean or cause financial loss to the depicted person.
- The depicted person is identifiable from the disclosed image itself or information offered in connection with the image.
- The depicted person’s intimate parts are exposed or the depicted person is engaged in sexual conduct in the disclosed image.
- The person discloses the images without the affirmative consent of the depicted person.
- The person discloses the images under circumstances such that the person knew or should have known that the depicted person had a reasonable expectation of privacy.
NCGS § 14-190.5A(b).
One who is found guilty of disclosure of private images may face undesirable consequences. If the offender is 18 or older at the time of the offense, the violation is a Class H felony. Although a Class H felony is a low-level felony and the offender may not receive hefty jail time, it is important to note that if convicted, the offender will have a felonious record. If the offender is under the age of 18 and this is his or her first offense, the violation is a Class 1 misdemeanor. In this instance the offender may be sentenced up to 45 days in jail, and/or a community punishment if convicted. However, if the offense is a second or subsequent offense by someone who is under the age of 18 at the time of the offense, the violation will be a class H felony.
Like most other laws, there are exceptions to this law against the disclosure of private images. If the disclosed image involves voluntary exposure in a public or commercial setting, one will not be held liable for disclosing such images to third parties. Also, if there is a policy reason behind the disclosure of such images, there will be no liability. Examples of policy reasons that support the disclosure of private images include: reporting unlawful conduct, lawful and common practices of law enforcement, criminal reporting, legal proceedings and medical treatment.
In addition to receiving criminal charges, if you disclose private images of someone without their consent, the victim may have a civil cause of action against the accused. In a civil action, the victim may recover actual damages, punitive damages and/ or reasonable attorney’s fees and litigation expenses. If actual damages are awarded, the offender may be ordered to pay up to $1,000 per day for each day of the violation of the statute, but not more than $10,000. It is important to note that if an offender is charged with violating this statute, he may also face additional civil or criminal charges because this specific statute does not repeal or preclude other sanctions or remedies.
The statute of limitations for a civil cause of action based on this statute is one year after the initial discovery of the disclosure. An action may not be brought more than seven years from the most recent disclosure of the private image.
If you have disclosed private images without proper consent and need to discuss your rights and options, call our office today and speak with one of our experienced defense attorneys.
