This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Fri, Mar 6, 2020 at 10:49 AM by lpoole.
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7 LONG TITLE
8 General Description:
9 This bill creates a cause of action that may be brought against a person who distributes
10 pornography without a visible warning.
11 Highlighted Provisions:
12 This bill:
13 ▸ allows the attorney general or a member of the public to bring an action against a
14 person who distributes pornography without a visible warning or specific searchable
15 text for a website;
16 ▸ requires an individual person to first notify the attorney general before bringing an
17 action;
18 ▸ allows for a civil penalty of up to $2,500 for each violation;
19 ▸ requires that a portion of any recovery be provided to the Crime Victims
20 Reparations Fund;
21 ▸ provides a process for curing the violation and paying a reduced penalty; and
22 ▸ requires the Judicial Council to adjust the penalty every five years.
23 Money Appropriated in this Bill:
24 None
25 Other Special Clauses:
26 None
27 Utah Code Sections Affected:
28 AMENDS:
29 78B-6-2103, as enacted by Laws of Utah 2017, Chapter 464
30 78B-6-2104, as enacted by Laws of Utah 2017, Chapter 464
31 ENACTS:
32 78B-6-2105, Utah Code Annotated 1953
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34 Be it enacted by the Legislature of the state of Utah:
35 Section 1. Section 78B-6-2103 is amended to read:
36 78B-6-2103. Liability -- Safe harbor.
37 (1) A person who is not exempt under Section 78B-6-2102, and who predominately
38 distributes or otherwise predominately provides pornographic material to consumers is liable to
39 a person if:
40 (a) at the time the pornographic material is viewed by the person, the person is a minor;
41 and
42 (b) the pornographic material is the proximate cause for the person being harmed
43 physically or psychologically, or by emotional or medical illnesses as a result of that
44 pornographic material.
45 (2) Nothing in this part affects any private right of action existing under other law,
46 including contract.
47 (3) Notwithstanding Subsection (1), a person who distributes or otherwise provides
48 pornographic material is not liable under this section if the person who distributes or otherwise
49 provides pornographic material:
50 (a) provides a warning that:
51 (i) is conspicuous;
52 (ii) appears before the pornographic material can be accessed; and
53 (iii) consists of a good faith effort to warn persons accessing the pornographic material
54 that the pornographic material may be harmful to minors; and
55 (b) makes a good faith effort to verify the age of a person accessing the pornographic
56 material.
57 (4) Subsection (3) may not be interpreted as exempting a person from complying with
58 Title 13, Chapter 39, Child Protection Registry.
59 (5) (a) Notwithstanding Section 78B-6-2105, a person who is not exempt under
60 Section 78B-6-2102, and who predominately distributes or otherwise predominately provides
61 obscene material to consumers without a warning label or without the metadata described in
62 Subsection 78B-6-2105(3)(b) is not liable if the person demonstrates reasonable efforts to
63 determine the location of recipients of obscene material within the state and the placement of
64 warning labels on material that enters the state. Reasonable efforts shall result in a compliance
65 rate that exceeds 75% of the content believed to enter the state within the shorter of six months
66 prior to any claim, or from May 12, 2020 to the time of the claim. Proof of reasonable efforts
67 shall remove liability only for the type of compliance for which reasonable efforts have been
68 proven.
69 (b) The use of virtual private networks or similar technology by the consumer to hide
70 the consumer's location may not be included in a compliance rate calculation.
71 (6) Notwithstanding Section 78B-6-2105, a video game without a warning label is not
72 liable if it has a rating of the Entertainment Software Rating Board or equivalent, as long as it
73 also explicitly provides notice of the content as part of the rating.
74 Section 2. Section 78B-6-2104 is amended to read:
75 78B-6-2104. Damages -- Class action.
76 (1) If a court finds that a person [
77 may award the plaintiff:
78 (a) actual damages; and
79 (b) punitive damages, if it is proven that the person targeted minors.
80 (2) A class action may be brought under this part in accordance with Utah Rules of
81 Civil Procedure, Rule 23.
82 Section 3. Section 78B-6-2105 is enacted to read:
83 78B-6-2105. Civil action for enforcement -- Penalties.
84 (1) A person who predominately distributes or otherwise predominately provides
85 pornographic material to consumers with the intent to earn revenue or profit directly or
86 indirectly from the distribution may not distribute any obscene material or performance as
87 defined in Section 76-10-1203 without first giving a clear and reasonable warning of the
88 harmful impact of exposing minors to the material or performance. The warning of the harm
89 shall be prominently displayed in the following form:
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92 (2) (a) For print publications created after May 12, 2020, the warning in Subsection (1)
93 shall be placed in clear, readable type on the cover of each publication which includes material
94 as defined in Section 76-10-1201.
95 (b) For digital publications:
96 (i) the warning in Subsection (1) shall be displayed in searchable text format and for at
97 least five seconds prior to the display of any video or each image which includes material as
98 defined in Section 76-10-1201; or
99 (ii) if the website complies with Subsection 78B-6-2103(3), it is not required to display
100 the warning in Subsection (1) prior to each video or image contained on the website.
101 (3) A person who violates this section shall be liable for a civil penalty not to exceed
102 $2,500 per violation, plus filing fees and attorney fees, in addition to any other penalty
103 established by law, and enjoined from further violations. The civil penalty may be assessed and
104 recovered in a civil action brought in any court of competent jurisdiction. Each of the following
105 violations shall create a separate liability per violation:
106 (a) Ŝ→ [
106a required in
107 Subsection (1), in accordance with Subsection (2); or
108 (b) the absence of the following searchable text within the website's metadata -
109 utahobscenitywarning.
110 (4) The determination by a court as to whether a person is distributing material the
111 state considers to be obscene material or performance as defined in Section 78B-6-1203 shall
112 be proven by clear and convincing evidence. All other elements of proof shall be proven by a
113 preponderance of the evidence.
114 (5) The court, in ordering payment, shall specify each amount for the civil penalty,
115 filing fees, and attorney fees.
116 (6) In assessing the amount of a civil penalty for a violation of this chapter, the court
117 shall consider all of the following:
118 (a) the nature and extent of the violation;
119 (b) the number and severity of the violations;
120 (c) the economic effect of the penalty on the violator;
121 (d) whether the violator took good faith measures to comply with this chapter and
122 when those measures were taken;
123 (e) the willfulness of the violator's misconduct;
124 (f) the deterrent effect that the imposition of the penalty would have on both the
125 violator and the regulated community as a whole; and
126 (g) any other factor that the court determines justice requires.
127 (7) Actions pursuant to this section may be brought by the attorney general's office in
128 the name of the people of the state or by a private person in accordance with Subsection (8).
129 (8) A private person may bring an action in the public interest pursuant to this section
130 if:
131 (a) the person has served notice of an alleged violation of Section 78B-6-2103 on the
132 alleged violator and the attorney general's office;
133 (b) the attorney general's office has not provided a letter to the noticing party within 60
134 days of receipt of the notice of an alleged violation indicating that:
135 (i) an action is currently being pursued or will be pursued by the attorney general's
136 office regarding the violation; or
137 (ii) the attorney general believes that there is no merit to the action; and
138 (c) the alleged violator has not responded to the notice of alleged violation or returned
139 the proof of compliance form provided in Subsection (14).
140 (9) If a lawsuit is commenced, the plaintiff may include additional violations in the
141 claim that are discovered through the discovery process.
142 (10) Notice of the alleged violation shall be executed by the attorney for the noticing
143 party, or by the noticing party, if the noticing party is not represented by an attorney, and
144 include a notice of alleged violation. The notice of alleged violation shall:
145 (a) state that the person executing the notice believes that there is a violation; and
146 (b) provide factual information sufficient to establish the basis for the alleged violation.
147 (11) A person who serves a notice of alleged violation identified in Subsection (10)
148 shall complete and provide to the alleged violator at the time the notice of alleged violation is
149 served, a notice of special compliance procedure and proof of compliance form pursuant to
150 Subsection (14). The person may file an action against the alleged violator, or recover from the
151 alleged violator if:
152 (a) the notice of alleged violation alleges that the alleged violator failed to provide a
153 clear and reasonable warning as required under Subsection (1); and
154 (b) within 14 days after receipt of the notice of alleged violation, the alleged violator
155 has not:
156 (i) corrected the alleged violation and all similar violations known to the alleged
157 violator;
158 (ii) agreed to pay a penalty for the alleged violation in the amount of $500 per
159 violation; and
160 (iii) notified, in writing, the noticing party that the violation has been corrected.
161 (12) The written notice required in Subsection (11)(b)(iii) shall be the notice of special
162 compliance procedure and proof of compliance form specified in Subsection (14). The alleged
163 violator shall deliver the civil penalty to the noticing party within 30 days of receipt of the
164 notice of alleged violation.
165 (13) The attorney general shall review the notice of alleged violation and may confer
166 with the noticing party. If the attorney general believes there is no merit to the action, the
167 attorney general shall, within 45 days of receipt of the notice of alleged violation, provide a
168 letter to the noticing party and the alleged violator stating that the attorney general believes
169 there is no merit to the action.
170 (14) The notice required to be provided to an alleged violator pursuant to Subsection
171 (11) shall be presented as follows:
172 Date:
173 Name of Noticing Party or attorney for Noticing Party:
174 Address:
175 Phone number:
176 SPECIAL COMPLIANCE PROCEDURE
177 PROOF OF COMPLIANCE
178 You are receiving this form because the Noticing Party listed above has alleged that you are in
179 violation of Utah Code Section 78B-6-2103.
180 The Noticing Party may bring legal proceedings against you for the alleged violation checked
181 below if:
182 (1) you have not actually taken the corrective steps that you have certified in this form;
183 (2) the Noticing Party has not received this form at the address shown above, accurately
184 completed by you, postmarked within 14 days of your receiving this notice; and
185 (3) the Noticing Party does not receive the required $500 penalty payment for each violation
186 alleged from you at the address shown above postmarked within 30 days of your receiving this
187 notice.
188 PART 1: TO BE COMPLETED BY THE NOTICING PARTY OR ATTORNEY FOR THE
189 NOTICING PARTY
190 This notice of alleged violation is for failure to warn against an exposure to minors of materials
191 considered harmful to minors. (provide complete description of violation, including when and
192 where observed)
193 Date:
194 Name of Noticing Party or attorney for Noticing Party:
195 Address:
196 Phone number:
197 PART 2: TO BE COMPLETED BY THE ALLEGED VIOLATOR OR AUTHORIZED
198 REPRESENTATIVE
199 Certification of Compliance
200 Accurate completion of this form will demonstrate that you are now in compliance with Utah
201 Code Section 78B-6-2103, for the alleged violation listed above. You must complete and
202 submit the form below to the Noticing Party at the address shown above, postmarked within 14
203 days of you receiving this notice.
204 I hereby agree to pay, within 30 days of receipt of this notice, a penalty of $500 for each
205 violation alleged to the Noticing Party only and certify that I have complied with by (check
206 only one of the following):
207 [ ] Posting a warning or warnings, and attaching a copy of that warning and a photograph
208 accurately showing its placement on the print or digital publication.
209 [ ] Eliminating the alleged exposure, and attaching a statement accurately describing how the
210 alleged exposure has been eliminated.
211 CERTIFICATION
212 My statements on this form, and on any attachments to it, are true, complete, and correct to the
213 best of my knowledge and belief and are made in good faith. I have carefully read the
214 instructions to complete this form. I understand that if I make a false statement on this form, I
215 may be subject to additional penalties under Utah Code Section 76-10-1206.
216 Signature of alleged violator or authorized representative:
217 Date:
218 Name and title of signatory:
219 (15) An alleged violator may satisfy the conditions set forth in Subsection (14) only
220 one time for a specific violation.
221 (16) Notwithstanding Subsection (14), the attorney general may file an action pursuant
222 to Subsection (7) against an alleged violator. In any action, the amount of any civil penalty for
223 a violation shall be reduced to reflect any payment made by the alleged violator to a private
224 person in accordance with Subsection (14) for the same alleged violation.
225 (17) Payments shall be made in accordance with this section.
226 (a) A civil penalty ordered by the court shall be paid to the plaintiff as directed by the
227 court.
228 (b) A penalty paid in accordance with the special compliance procedure in Subsection
229 (14) shall be made directly to the noticing party.
230 (18) The Utah Office for Victims of Crime shall receive 50% of any penalty paid in
231 accordance with this section. Funds received shall be deposited in the Crime Victim
232 Reparations Fund created in Section 51-9-404. The penalty amount upon which the 50% is
233 calculated may not include attorney fees or costs awarded by the court.
234 (a) If the penalty is paid to a noticing party in accordance with Subsection (14), the
235 noticing party shall remit the required amount along with a copy of the Special Compliance
236 Procedure document.
237 (b) If a civil penalty is ordered by the court, the plaintiff shall remit the required
238 amount along with a copy of the court order.
239 (19) The attorney general's office shall provide to the Utah Office for Victims of Crime
240 a copy of all notices of alleged violations to which the attorney general's office did not respond
241 with a letter of no merit in accordance with Subsection (13).
242 (20) The court shall provide to the Utah Office for Victims of Crime a copy of the
243 court's order for payment.
244 (21) The Utah Office for Victims of Crime shall:
245 (a) maintain a record of documents and payments submitted pursuant to Subsections
246 (18), (19), and (20);
247 (b) create and provide to the Legislature in odd-numbered years beginning November
248 2021, a report containing the following for the previous two years:
249 (i) the number of notices of alleged violations received from the attorney general's
250 office;
251 (ii) the number of court orders received; and
252 (iii) the total amount received and deposited into the Crime Victim Reparations Fund.
252a Ŝ→ (22) This section does not apply to:
252b (a) a person portrayed in obscene or pornographic material that is created, duplicated,
252c or distributed without the person's knowledge or consent; or
252d (b) a person who is coerced or blackmailed into distributing obscene or pornographic
252e material. ←Ŝ
253 Ŝ→ [
253a of the
254 civil penalty provided in Subsection (3) shall be adjusted by the Judicial Council based on the
255 change in the annual Consumer Price Index for the most recent five-year period ending on
256 December 31 of the previous year, and rounded to the nearest five dollars. The attorney general
257 shall publish the dollar amount of the civil penalty together with the date of the next scheduled
258 adjustment.