Section 76-5b-203 - Distribution of an intimate image - Penalty(1)(a) As used in this section: (i) "Intimate image" means any visual depiction, photograph, film, video, recording, picture, or computer or computer-generated image, picture, or video, whether made or produced by electronic, mechanical, or other means, that depicts: (A) exposed human male or female genitals or pubic area, with less than an opaque covering;(B) a female breast with less than an opaque covering, or any portion of the female breast below the top of the areola; or(C) the individual engaged in any sexually explicit conduct.(ii) "Sexually explicit conduct" means actual or simulated:(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between individuals of the same or opposite sex;(D) sadistic or masochistic activities;(E) exhibition of the genitals, pubic region, buttocks, or female breast of any individual;(F) visual depiction of nudity or partial nudity;(G) fondling or touching of the genitals, pubic region, buttocks, or female breast; or(H) explicit representation of the defecation or urination functions.(iii) "Simulated sexually explicit conduct" means a feigned or pretended act of sexually explicit conduct that duplicates, within the perception of an average person, the appearance of an actual act of sexually explicit conduct.(iv) "Single criminal episode" means the same as that term is defined in Section 76-1-401.(b) Terms defined in Section 76-1-101.5 apply to this section.(2)(a) An actor commits the offense of distribution of an intimate image if: (i) the actor knowingly or intentionally distributes to a third party, or knowingly duplicates or copies an intimate image of an individual who is 18 years old or older and knows or should know that the distribution, duplication or copying would cause a reasonable person to suffer emotional distress or harm;(ii) the actor has not received consent from the individual depicted in the image to distribute the intimate image;(iii) the intimate image was created by or provided to the actor under circumstances in which the individual depicted in the image has a reasonable expectation of privacy; and(iv) except as provided in Subsection (2)(b), actual emotional distress or harm is caused to the individual depicted in the image as a result of the distribution.(b) Subsection (2)(a)(iv) is not an element of the offense described in Subsection (2)(a) if: (i) the individual depicted in the intimate image was the victim of a crime;(ii) the intimate image was provided to law enforcement as part of an investigation or prosecution of a crime committed against the victim;(iii) the intimate image was distributed without a legitimate law enforcement or investigative purpose by an individual who had access to the intimate image due to the individual's association with the investigation or prosecution described in Subsection (2)(b)(ii); and(iv) the victim is incapacitated or deceased.(3)(a) A violation of Subsection (2) is a class A misdemeanor.(b) Notwithstanding Subsection (3)(a), a violation of Subsection (2) is a third degree felony on a second or subsequent conviction for an offense under this section that does not arise from a single criminal episode.(4) This section does not apply to:(a) except as provided in Section 76-5b-203.5: (i) lawful practices of law enforcement agencies;(ii) prosecutorial agency functions;(iii) the reporting of a criminal offense;(iv) court proceedings or any other judicial proceeding; or(v) lawful and generally accepted medical practices and procedures;(b) an intimate image if the individual portrayed in the image voluntarily allows public exposure of the image;(c) an intimate image that is portrayed in a lawful commercial setting; or(d) an intimate image that is related to a matter of public concern or interest.(5)(a) This section does not apply to an Internet service provider or interactive computer service, as defined in 47 U.S.C. Sec. 230(f)(2), a provider of an electronic communications service as defined in 18 U.S.C. Sec. 2510, a telecommunications service, information service, or mobile service as defined in 47 U.S.C. Sec. 153, including a commercial mobile service as defined in 47 U.S.C. Sec. 332(d), or a cable operator as defined in 47 U.S.C. Sec. 522, if: (i) the distribution of an intimate image by the Internet service provider occurs only incidentally through the provider's function of:(A) transmitting or routing data from one person to another person; or(B) providing a connection between one person and another person;(ii) the provider does not intentionally aid or abet in the distribution of the intimate image; and(iii) the provider does not knowingly receive from or through a person who distributes the intimate image a fee greater than the fee generally charged by the provider, as a specific condition for permitting the person to distribute the intimate image.(b) This section does not apply to a hosting company, as defined in Section 76-10-1230, if: (i) the distribution of an intimate image by the hosting company occurs only incidentally through the hosting company's function of providing data storage space or data caching to a person;(ii) the hosting company does not intentionally engage, aid, or abet in the distribution of the intimate image; and(iii) the hosting company does not knowingly receive from or through a person who distributes the intimate image a fee greater than the fee generally charged by the provider, as a specific condition for permitting the person to distribute, store, or cache the intimate image.(c) A service provider, as defined in Section 76-10-1230, is not negligent under this section if it complies with Section 76-10-1231.Amended by Chapter 127, 2024 General Session ,§ 2, eff. 5/1/2024.Amended by Chapter 181, 2022 General Session ,§ 104, eff. 5/4/2022.Amended by Chapter 95, 2021 General Session ,§ 1, eff. 5/5/2021.Amended by Chapter 95, 2021 General Session ,§ 1, eff. 5/5/2021.Amended by Chapter 55, 2021 General Session ,§ 1, eff. 5/5/2021.Amended by Chapter 378, 2019 General Session ,§ 3, eff. 5/14/2019.Added by Chapter 124, 2014 General Session ,§ 1, eff. 5/13/2014.