GA Code § 16-11-90 (2021)
2021 Georgia Code|Title 16 - Crimes and Offenses|Chapter 11 - Offenses Against Public Order and Safety|Article 3 - Invasions of Privacy|Part 3 - Invasion of Privacy|§ 16-11-90. Prohibition on Nude or Sexually Explicit Electronic Transmissions

  As used in this Code section, the term:   "Harassment" means engaging in conduct directed at a depicted person that is intended to cause substantial emotional harm to the depicted person.   "Nudity" means:   The showing of the human male or female genitals, pubic area, or buttocks without any covering or with less than a full opaque covering;   The showing of the female breasts without any covering or with less than a full opaque covering; or   The depiction of covered male genitals in a discernibly turgid state.     "Sexually explicit conduct" shall have the same meaning as set forth in Code Section 16-12-100.     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:   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, including a falsely created videographic or still image, when the transmission or post is harassment or causes financial loss to the depicted person, serves no legitimate purpose to the depicted person, and is transmitted or posted:   To a website, peer-to-peer file-sharing site, thumbnail gallery, movie gallery post, linked list, live webcam, web page, or message board, that advertises or promotes its service as showing, previewing, or distributing sexually explicit conduct; or   Via any other electronic means that does not fall within subparagraph (A) of this paragraph; or     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, including a falsely created videographic or still image, when the transmission or post is harassment or causes financial loss to the depicted person, serves no legitimate purpose to the depicted person, and is transmitted or posted:   To a website, peer-to-peer file-sharing site, thumbnail gallery, movie gallery post, linked list, live webcam, web page, or message board, that advertises or promotes its service as showing, previewing, or distributing sexually explicit conduct; or   Via any other electronic means that does not fall within subparagraph (A) of this paragraph.  Nothing in this Code section shall be construed to impose liability on an interactive computer service, as such term is defined in 47 U.S.C. Section 230(f)(2), or an information service or telecommunications service, as such terms are defined in 47 U.S.C. Section 153, for content provided by another person.          Any person who violates subparagraph (b)(1)(B) or (b)(2)(B) of 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.   Any person who violates subparagraph (b)(1)(A) or (b)(2)(A) of this Code section 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. Upon the second and all subsequent convictions for violations of subparagraph (b)(1)(A) or (b)(2)(A) of this Code section, such person shall be guilty of a felony and shall be punished by imprisonment of not less than two nor more than five years, a fine of not more than $100,000.00, or both.     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:   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   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.     The provisions of subsection (b) of this Code section shall not apply to:   The activities of law enforcement and prosecution agencies in the investigation and prosecution of criminal offenses;   Legitimate medical, scientific, or educational activities;   Any person who transmits or posts a photograph or video depicting only himself or herself engaged in nudity or sexually explicit conduct;   The transmission or posting of a photograph or video that was originally made for commercial purposes;   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   A transmission that is made pursuant to or in anticipation of a civil action.     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.   Any violation of this Code section shall constitute a separate offense and shall not merge with any other crimes set forth in this title.     (Code 1981, §16-11-90, enacted by Ga. L. 2014, p. 220, § 1/HB 838; Ga. L. 2015, p. 5, § 16/HB 90; Ga. L. 2020, p. 579, § 1/SB 337; Ga. L. 2021, p. 442, § 1/SB 78; Ga. L. 2021, p. 922, § 16/HB 497.)    The 2020 amendment,  effective August 3, 2020, inserted ", including a falsely created videographic or still image" in paragraphs (b)(1) and (b)(2) and added the ending undesignated paragraph of subsection (b). See Editor's note for applicability.    The 2021 amendments.  The first 2021 amendment, effective July 1, 2021, rewrote subsection (b); designated the existing provisions of subsection (c) as paragraph (c)(1); inserted "subparagraph (b)(1)(B) or (b)(2)(B) of" near the beginning of paragraph (c)(1); and added paragraph (c)(2). The second 2021 amendment, effective May 10, 2021, part of an Act to revise, modernize, and correct the Code, in the ending undesignated language of subsection (b), substituted "47 U.S.C. Section 230(f)(2)" for "47 U.S.C. 230(f)(2)" and substituted "47 U.S.C. Section 153" for "47 U.S.C. 153".   Editor's notes.   - Ga. L. 2020, p. 579, § 2/SB 337, not codified by the General Assembly, provides that the amendment of subsection (b) shall apply to all conduct occurring on or after August 3, 2020.   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). For article, "Sex Crimes in the 21st Century: Human Trafficking, Pornography, and Prostitution Changing Faces: Morphed Child Pornography Images and the First Amendment," see 68 Emory L.J. 909 (2019).   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 misdemeanor offenses arising under O.C.G.A. §§ 16-8-14.1(a),16-8-22,16-11-90(b),16-11-130.2, and33-24-53, are designated as ones for which those charged are to be fingerprinted. 2014 Op. Att'y Gen. No. 2014-2.   RESEARCH REFERENCES   ALR.   - State Law Liability and Relief for "Revenge Porn", 54 A.L.R.7th 2.   Claims Concerning Use of "Cookies" To Acquire Internet Users' Web Browsing Data Under Federal Law, 36 A.L.R. Fed. 3d Art. 5.   Proof of Liability for Violation of Privacy of Internet User by Use of Cookies or Other Means, 67 POF3d 249.