O.C.G.A.

O.C.G.A. § 16-11-90 (2019)

Prohibition on nude or sexually explicit electronic transmissions

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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(a) As used in this Code section, the term: (1) ‘‘Harassment’’ means engaging in conduct directed at a depicted person that is intended to cause substantial emotional harm to the depicted person. (2) ‘‘Nudity’’ means: (A) The showing of the human male or female genitals, pubic area, or buttocks without any covering or with less than a full opaque covering; (B) The showing of the female breasts without any covering or with less than a full opaque covering; or (C) The depiction of covered male genitals in a discernibly turgid state. (3) ‘‘Sexually explicit conduct’’ shall have the same meaning as set forth in Code Section 16-12-100. (b) A person violates this Code section if he or she, knowing the content of a transmission or post, knowingly and without the consent of the depicted person: (1) Electronically transmits or posts, in one or more transmissions or posts, a photograph or video which depicts nudity or sexually explicit conduct of an adult when the transmission or post is harassment or causes financial loss to the depicted person and serves no legitimate purpose to the depicted person; or (2) Causes the electronic transmission or posting, in one or more transmissions or posts, of a photograph or video which depicts nudity or sexually explicit conduct of an adult when the transmission or post is harassment or causes financial loss to the depicted person and serves no legitimate purpose to the depicted person. (c) Any person who violates this Code section shall be guilty of a misdemeanor of a high and aggravated nature; provided, however, that

upon a second or subsequent violation of this Code section, he or she shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment of not less than one nor more than five years, a fine of not more than $100,000.00, or both. (d) A person shall be subject to prosecution in this state pursuant to Code Section 17-2-1 for any conduct made unlawful by this Code section which the person engages in while: (1) Either within or outside of this state if, by such conduct, the person commits a violation of this Code section which involves an individual who resides in this state; or (2) Within this state if, by such conduct, the person commits a violation of this Code section which involves an individual who resides within or outside this state. (e) The provisions of subsection (b) of this Code section shall not apply to: (1) The activities of law enforcement and prosecution agencies in the investigation and prosecution of criminal offenses; (2) Legitimate medical, scientific, or educational activities; (3) Any person who transmits or posts a photograph or video depicting only himself or herself engaged in nudity or sexually explicit conduct; (4) The transmission or posting of a photograph or video that was originally made for commercial purposes; (5) Any person who transmits or posts a photograph or video depicting a person voluntarily engaged in nudity or sexually explicit conduct in a public setting; or (6) A transmission that is made pursuant to or in anticipation of a civil action. (f ) There shall be a rebuttable presumption that an information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet, for content provided by another person, does not know the content of an electronic transmission or post. (g) Any violation of this Code section shall constitute a separate offense and shall not merge with any other crimes set forth in this title.

History

(Code 1981, § 16-11-90, enacted by Ga. L. 2014, p. 220, § 1/HB 838; Ga. L. 2015, p. 5, § 16/HB 90.)

Annotations

Cross references. - Constitutional guarantee of free speech and press, Ga. Const. 1983, Art. I, Sec. I, Para. V. Libel and slander, C. 5, T. 51.

Law reviews. - For annual survey of criminal law, see 67 Mercer L. Rev. 31 (2015).

JUDICIAL DECISIONS No private right of action for violation. - Trial court erred in awarding civil damages to a girlfriend under O.C.G.A. § 16-11-90, which criminalized the transmission of photography or video depicting nudity or sexually explicit conduct of an adult without his or her consent, because it was a criminal statute that did not

provide for a private right of action; further, creation of such a right from the statute would violate the separation of powers clause, Ga. Const. 1983, Art. I, Sec. II, Para. III, and also O.C.G.A. § 9-2-8(a). Somerville v. White, 337 Ga. App. 414, 787 S.E.2d 350 (2016).

OPINIONS OF THE ATTORNEY GENERAL Updating of crimes and offenses for which Georgia Crime Information Center is authorized to collect and file fingerprints. - Pursuant to authority granted to the Attorney General in O.C.G.A. § 35-3-33(a)(1)(A)(v), any mis-

demeanor offenses arising under O.C.G.A. §§ 16-8-14.1(a), 16-8-22, 16-11-90(b), 16-11-130.2, and 33-24-53, are designated as ones for which those charged are to be fingerprinted. 2014 Op. Att’y Gen. No. 2014-2.

RESEARCH REFERENCES Am. Jur. Proof of Facts. - Proof of Liability for Violation of Privacy of Inter-

net User by Use of Cookies or Other Means, 67 POF3d 249.

Notes of Decisions

Cited in 6 cases (2 in the last 5 years), 2016–2023 · leading case: Somerville v. White, 787 S.E.2d 350 (Ga. Ct. App. 2016).

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Somerville v. White, 787 S.E.2d 350 (Ga. Ct. App. 2016). · cites it 46× “” Specifically, the trial court awarded $500 in compensatory damages and $15,000 in punitive damages to White because it found that Somerville violated OCGA § 16-11-90, a statute that criminalizes the transmission of photography or video depicting nudity or sexually explicit…”

Rogers v. Dupree, 799 S.E.2d 1 (Ga. Ct. App. 2017). · cites it 8× “More relevant here, less than a year ago this Court reversed a trial court’s award of compensatory and punitive damages based on a defendant’s counterclaim for “Intentional Tort (OCGA § 16-11-90).” Somerville v. White, 337 Ga.”

Marcus W. Somerville v. Wanda W. White (Ga. Ct. App. 2016). · cites it 44× “” Specifically, the trial court awarded $500 in compensatory damages and $15,000 in punitive damages to White because it found that Somerville violated OCGA § 16-11-90, a statute that criminalizes the transmission of photography or video depicting nudity or sexually explicit…”

Joe Rogers, Jr. v. Hylton B. Dupree (Ga. Ct. App. 2017). · cites it 8× “More relevant here, less than a year ago this Court reversed a trial court’s award of compensatory and punitive damages based on a defendant’s counterclaim for “Intentional Tort (OCGA § 16-11-90).” Somerville v. White, 337 Ga.”

State v. Rodney Scott Wood (Ga. Ct. App. 2023). · cites it 2× “Rodney Wood was charged by indictment with three counts of invasion of privacy under OCGA § 16-11-90 for electronically sending nude pictures and a video of the alleged victim to a third party.”

Brandon Rogers v. State (Ga. Ct. App. 2023). · cites it 2× “Following a jury trial, the Superior Court of Henry County entered a judgment of conviction against Brandon Rogers on four counts of child molestation (OCGA § 16-6-4 (a)) and one count of invasion of privacy (OCGA § 16-11-90) (2018). Rogers appeals from the denial of his motion…”

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.