2
3
4
5
6 Cosponsors:
7 Cheryl K. Acton
8 Carl R. Albrecht
9 Melissa G. Ballard
10 Kay J. Christofferson
11 Joel Ferry
Timothy D. Hawkes
Jon Hawkins
Dan N. Johnson
Marsha Judkins
Karianne Lisonbee
Calvin R. Musselman
Derrin R. Owens
Lee B. Perry
Val K. Potter
Travis M. Seegmiller
Steve Waldrip
12
13 LONG TITLE
14 General Description:
15 This bill creates a cause of action that may be brought against a person who distributes
16 pornography without a visible warning.
17 Highlighted Provisions:
18 This bill:
19 ▸ allows the attorney general or a member of the public to bring an action against a
20 person who distributes pornography without a visible warning or specific searchable
21 text for a website;
22 ▸ requires an individual person to first notify the attorney general before bringing an
23 action;
24 ▸ allows for a civil penalty of up to $2,500 for each violation;
25 ▸ requires that a portion of any recovery be provided to the Crime Victims
26 Reparations Fund;
27 ▸ provides a process for curing the violation and paying a reduced penalty; and
28 ▸ requires the Judicial Council to adjust the penalty every five years.
29 Money Appropriated in this Bill:
30 None
31 Other Special Clauses:
32 None
33 Utah Code Sections Affected:
34 AMENDS:
35 78B-6-2103, as enacted by Laws of Utah 2017, Chapter 464
36 78B-6-2104, as enacted by Laws of Utah 2017, Chapter 464
37 ENACTS:
38 78B-6-2105, Utah Code Annotated 1953
39
40 Be it enacted by the Legislature of the state of Utah:
41 Section 1. Section 78B-6-2103 is amended to read:
42 78B-6-2103. Liability -- Safe harbor.
43 (1) A person who is not exempt under Section 78B-6-2102, and who predominately
44 distributes or otherwise predominately provides pornographic material to consumers is liable to
45 a person if:
46 (a) at the time the pornographic material is viewed by the person, the person is a minor;
47 and
48 (b) the pornographic material is the proximate cause for the person being harmed
49 physically or psychologically, or by emotional or medical illnesses as a result of that
50 pornographic material.
51 (2) Nothing in this part affects any private right of action existing under other law,
52 including contract.
53 (3) Notwithstanding Subsection (1), a person who distributes or otherwise provides
54 pornographic material is not liable under this section if the person who distributes or otherwise
55 provides pornographic material:
56 (a) provides a warning that:
57 (i) is conspicuous;
58 (ii) appears before the pornographic material can be accessed; and
59 (iii) consists of a good faith effort to warn persons accessing the pornographic material
60 that the pornographic material may be harmful to minors; and
61 (b) makes a good faith effort to verify the age of a person accessing the pornographic
62 material.
63 (4) Subsection (3) may not be interpreted as exempting a person from complying with
64 Title 13, Chapter 39, Child Protection Registry.
65 (5) (a) Notwithstanding Section 78B-6-2105, a person who is not exempt under
66 Section 78B-6-2102, and who predominately distributes or otherwise predominately provides
67 obscene material to consumers without a warning label or without the metadata described in
68 Subsection 78B-6-2105(3)(b) is not liable if the person demonstrates reasonable efforts to
69 determine the location of recipients of obscene material within the state and the placement of
70 warning labels on material that enters the state. Reasonable efforts shall result in a compliance
71 rate that exceeds 75% of the content believed to enter the state within the shorter of six months
72 prior to any claim, or from May 12, 2020 to the time of the claim. Proof of reasonable efforts
73 shall remove liability only for the type of compliance for which reasonable efforts have been
74 proven.
75 (b) The use of virtual private networks or similar technology by the consumer to hide
76 the consumer's location may not be included in a compliance rate calculation.
77 (6) Notwithstanding Section 78B-6-2105, a video game without a warning label is not
78 liable if it has a rating of the Entertainment Software Rating Board or equivalent, as long as it
79 also explicitly provides notice of the content as part of the rating.
80 Section 2. Section 78B-6-2104 is amended to read:
81 78B-6-2104. Damages -- Class action.
82 (1) If a court finds that a person [
83 may award the plaintiff:
84 (a) actual damages; and
85 (b) punitive damages, if it is proven that the person targeted minors.
86 (2) A class action may be brought under this part in accordance with Utah Rules of
87 Civil Procedure, Rule 23.
88 Section 3. Section 78B-6-2105 is enacted to read:
89 78B-6-2105. Civil action for enforcement -- Penalties.
90 (1) A person who predominately distributes or otherwise predominately provides
91 pornographic material to consumers with the intent to earn revenue or profit directly or
92 indirectly from the distribution may not distribute any obscene material or performance as
93 defined in Section 76-10-1203 without first giving a clear and reasonable warning of the
94 harmful impact of exposing minors to the material or performance. The warning of the harm
95 shall be prominently displayed in the following form:
96
97
98 (2) (a) For print publications created after May 12, 2020, the warning in Subsection (1)
99 shall be placed in clear, readable type on the cover of each publication which includes material
100 as defined in Section 76-10-1201.
101 (b) For digital publications:
102 (i) the warning in Subsection (1) shall be displayed in searchable text format and for at
103 least five seconds prior to the display of any video or each image which includes material as
104 defined in Section 76-10-1201; or
105 (ii) if the website complies with Subsection 78B-6-2103(3), it is not required to display
106 the warning in Subsection (1) prior to each video or image contained on the website.
107 (3) A person who violates this section shall be liable for a civil penalty not to exceed
108 $2,500 per violation, plus filing fees and attorney fees, in addition to any other penalty
109 established by law, and enjoined from further violations. The civil penalty may be assessed and
110 recovered in a civil action brought in any court of competent jurisdiction. Each of the following
111 violations shall create a separate liability per violation:
112 (a) the sale or display of potentially harmful content without the warning required in
113 Subsection (1), in accordance with Subsection (2); or
114 (b) the absence of the following searchable text within the website's metadata -
115 utahobscenitywarning.
116 (4) The determination by a court as to whether a person is distributing material the
117 state considers to be obscene material or performance as defined in Section 78B-6-1203 shall
118 be proven by clear and convincing evidence. All other elements of proof shall be proven by a
119 preponderance of the evidence.
120 (5) The court, in ordering payment, shall specify each amount for the civil penalty,
121 filing fees, and attorney fees.
122 (6) In assessing the amount of a civil penalty for a violation of this chapter, the court
123 shall consider all of the following:
124 (a) the nature and extent of the violation;
125 (b) the number and severity of the violations;
126 (c) the economic effect of the penalty on the violator;
127 (d) whether the violator took good faith measures to comply with this chapter and
128 when those measures were taken;
129 (e) the willfulness of the violator's misconduct;
130 (f) the deterrent effect that the imposition of the penalty would have on both the
131 violator and the regulated community as a whole; and
132 (g) any other factor that the court determines justice requires.
133 (7) Actions pursuant to this section may be brought by the attorney general's office in
134 the name of the people of the state or by a private person in accordance with Subsection (8).
135 (8) A private person may bring an action in the public interest pursuant to this section
136 if:
137 (a) the person has served notice of an alleged violation of Section 78B-6-2103 on the
138 alleged violator and the attorney general's office;
139 (b) the attorney general's office has not provided a letter to the noticing party within 60
140 days of receipt of the notice of an alleged violation indicating that:
141 (i) an action is currently being pursued or will be pursued by the attorney general's
142 office regarding the violation; or
143 (ii) the attorney general believes that there is no merit to the action; and
144 (c) the alleged violator has not responded to the notice of alleged violation or returned
145 the proof of compliance form provided in Subsection (14).
146 (9) If a lawsuit is commenced, the plaintiff may include additional violations in the
147 claim that are discovered through the discovery process.
148 (10) Notice of the alleged violation shall be executed by the attorney for the noticing
149 party, or by the noticing party, if the noticing party is not represented by an attorney, and
150 include a notice of alleged violation. The notice of alleged violation shall:
151 (a) state that the person executing the notice believes that there is a violation; and
152 (b) provide factual information sufficient to establish the basis for the alleged violation.
153 (11) A person who serves a notice of alleged violation identified in Subsection (10)
154 shall complete and provide to the alleged violator at the time the notice of alleged violation is
155 served, a notice of special compliance procedure and proof of compliance form pursuant to
156 Subsection (14). The person may file an action against the alleged violator, or recover from the
157 alleged violator if:
158 (a) the notice of alleged violation alleges that the alleged violator failed to provide a
159 clear and reasonable warning as required under Subsection (1); and
160 (b) within 14 days after receipt of the notice of alleged violation, the alleged violator
161 has not:
162 (i) corrected the alleged violation and all similar violations known to the alleged
163 violator;
164 (ii) agreed to pay a penalty for the alleged violation in the amount of $500 per
165 violation; and
166 (iii) notified, in writing, the noticing party that the violation has been corrected.
167 (12) The written notice required in Subsection (11)(b)(iii) shall be the notice of special
168 compliance procedure and proof of compliance form specified in Subsection (14). The alleged
169 violator shall deliver the civil penalty to the noticing party within 30 days of receipt of the
170 notice of alleged violation.
171 (13) The attorney general shall review the notice of alleged violation and may confer
172 with the noticing party. If the attorney general believes there is no merit to the action, the
173 attorney general shall, within 45 days of receipt of the notice of alleged violation, provide a
174 letter to the noticing party and the alleged violator stating that the attorney general believes
175 there is no merit to the action.
176 (14) The notice required to be provided to an alleged violator pursuant to Subsection
177 (11) shall be presented as follows:
178 Date:
179 Name of Noticing Party or attorney for Noticing Party:
180 Address:
181 Phone number:
182 SPECIAL COMPLIANCE PROCEDURE
183 PROOF OF COMPLIANCE
184 You are receiving this form because the Noticing Party listed above has alleged that you are in
185 violation of Utah Code Section 78B-6-2103.
186 The Noticing Party may bring legal proceedings against you for the alleged violation checked
187 below if:
188 (1) you have not actually taken the corrective steps that you have certified in this form;
189 (2) the Noticing Party has not received this form at the address shown above, accurately
190 completed by you, postmarked within 14 days of your receiving this notice; and
191 (3) the Noticing Party does not receive the required $500 penalty payment for each violation
192 alleged from you at the address shown above postmarked within 30 days of your receiving this
193 notice.
194 PART 1: TO BE COMPLETED BY THE NOTICING PARTY OR ATTORNEY FOR THE
195 NOTICING PARTY
196 This notice of alleged violation is for failure to warn against an exposure to minors of materials
197 considered harmful to minors. (provide complete description of violation, including when and
198 where observed)
199 Date:
200 Name of Noticing Party or attorney for Noticing Party:
201 Address:
202 Phone number:
203 PART 2: TO BE COMPLETED BY THE ALLEGED VIOLATOR OR AUTHORIZED
204 REPRESENTATIVE
205 Certification of Compliance
206 Accurate completion of this form will demonstrate that you are now in compliance with Utah
207 Code Section 78B-6-2103, for the alleged violation listed above. You must complete and
208 submit the form below to the Noticing Party at the address shown above, postmarked within 14
209 days of you receiving this notice.
210 I hereby agree to pay, within 30 days of receipt of this notice, a penalty of $500 for each
211 violation alleged to the Noticing Party only and certify that I have complied with by (check
212 only one of the following):
213 [ ] Posting a warning or warnings, and attaching a copy of that warning and a photograph
214 accurately showing its placement on the print or digital publication.
215 [ ] Eliminating the alleged exposure, and attaching a statement accurately describing how the
216 alleged exposure has been eliminated.
217 CERTIFICATION
218 My statements on this form, and on any attachments to it, are true, complete, and correct to the
219 best of my knowledge and belief and are made in good faith. I have carefully read the
220 instructions to complete this form. I understand that if I make a false statement on this form, I
221 may be subject to additional penalties under Utah Code Section 76-10-1206.
222 Signature of alleged violator or authorized representative:
223 Date:
224 Name and title of signatory:
225 (15) An alleged violator may satisfy the conditions set forth in Subsection (14) only
226 one time for a specific violation.
227 (16) Notwithstanding Subsection (14), the attorney general may file an action pursuant
228 to Subsection (7) against an alleged violator. In any action, the amount of any civil penalty for
229 a violation shall be reduced to reflect any payment made by the alleged violator to a private
230 person in accordance with Subsection (14) for the same alleged violation.
231 (17) Payments shall be made in accordance with this section.
232 (a) A civil penalty ordered by the court shall be paid to the plaintiff as directed by the
233 court.
234 (b) A penalty paid in accordance with the special compliance procedure in Subsection
235 (14) shall be made directly to the noticing party.
236 (18) The Utah Office for Victims of Crime shall receive 50% of any penalty paid in
237 accordance with this section. Funds received shall be deposited in the Crime Victim
238 Reparations Fund created in Section 51-9-404. The penalty amount upon which the 50% is
239 calculated may not include attorney fees or costs awarded by the court.
240 (a) If the penalty is paid to a noticing party in accordance with Subsection (14), the
241 noticing party shall remit the required amount along with a copy of the Special Compliance
242 Procedure document.
243 (b) If a civil penalty is ordered by the court, the plaintiff shall remit the required
244 amount along with a copy of the court order.
245 (19) The attorney general's office shall provide to the Utah Office for Victims of Crime
246 a copy of all notices of alleged violations to which the attorney general's office did not respond
247 with a letter of no merit in accordance with Subsection (13).
248 (20) The court shall provide to the Utah Office for Victims of Crime a copy of the
249 court's order for payment.
250 (21) The Utah Office for Victims of Crime shall:
251 (a) maintain a record of documents and payments submitted pursuant to Subsections
252 (18), (19), and (20);
253 (b) create and provide to the Legislature in odd-numbered years beginning November
254 2021, a report containing the following for the previous two years:
255 (i) the number of notices of alleged violations received from the attorney general's
256 office;
257 (ii) the number of court orders received; and
258 (iii) the total amount received and deposited into the Crime Victim Reparations Fund.
259 (22) This section does not apply to:
260 (a) a person portrayed in obscene or pornographic material that is created, duplicated,
261 or distributed without the person's knowledge or consent; or
262 (b) a person who is coerced or blackmailed into distributing obscene or pornographic
263 material.
264 (23) Beginning May 1, 2025, and at each five-year interval, the dollar amount of the
265 civil penalty provided in Subsection (3) shall be adjusted by the Judicial Council based on the
266 change in the annual Consumer Price Index for the most recent five-year period ending on
267 December 31 of the previous year, and rounded to the nearest five dollars. The attorney general
268 shall publish the dollar amount of the civil penalty together with the date of the next scheduled
269 adjustment.
270