Representative Brady Brammer proposes the following substitute bill:


1     
WARNING LABELS AMENDMENTS

2     
2020 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Brady Brammer

5     
Senate Sponsor: Todd Weiler

6     

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;
15          ▸     requires an individual person to first notify the attorney general before bringing an
16     action;
17          ▸     allows for a civil penalty of up to $2,500 for each violation;
18          ▸     requires that a portion of any recovery be provided to the Crime Victims
19     Reparations Fund;
20          ▸     provides a process for curing the violation and paying a reduced penalty; and
21          ▸     requires the Judicial Council to adjust the penalty every five years.
22     Money Appropriated in this Bill:
23          None
24     Other Special Clauses:
25          None

26     Utah Code Sections Affected:
27     AMENDS:
28          78B-6-2103, as enacted by Laws of Utah 2017, Chapter 464
29          78B-6-2104, as enacted by Laws of Utah 2017, Chapter 464
30     ENACTS:
31          78B-6-2105, Utah Code Annotated 1953
32     

33     Be it enacted by the Legislature of the state of Utah:
34          Section 1. Section 78B-6-2103 is amended to read:
35          78B-6-2103. Liability -- Safe harbor.
36          (1) A person who predominately distributes or otherwise predominately provides
37     pornographic material to consumers is liable to a person if:
38          (a) at the time the pornographic material is viewed by the person, the person is a minor;
39     and
40          (b) the pornographic material is the proximate cause for the person being harmed
41     physically or psychologically, or by emotional or medical illnesses as a result of that
42     pornographic material.
43          (2) Nothing in this part affects any private right of action existing under other law,
44     including contract.
45          (3) Notwithstanding Subsection (1), a person who distributes or otherwise provides
46     pornographic material is not liable under this section if the person who distributes or otherwise
47     provides pornographic material:
48          (a) provides a warning that:
49          (i) is conspicuous;
50          (ii) appears before the pornographic material can be accessed; and
51          (iii) consists of a good faith effort to warn persons accessing the pornographic material
52     that the pornographic material may be harmful to minors; and
53          (b) makes a good faith effort to verify the age of a person accessing the pornographic
54     material.
55          (4) Subsection (3) may not be interpreted as exempting a person from complying with
56     Title 13, Chapter 39, Child Protection Registry.

57          (5) (a) Notwithstanding Section 78B-6-2105, a person who predominately distributes
58     or otherwise predominately provides pornographic material to consumers without a warning
59     label is not liable if the person demonstrates reasonable efforts to determine the location of
60     recipients of pornographic material within the state and the placement of warning labels on
61     material that enters the state. Reasonable efforts shall result in a compliance rate that exceeds
62     75% of the content believed to enter the state.
63          (b) The use of virtual private networks or similar technology by the consumer to hide
64     the consumer's location may not be included in a compliance rate calculation.
65          (6) Notwithstanding Section 78B-6-2105, a video game without a warning label is not
66     liable if it has the highest cautionary rating of the Entertainment Software Rating Board or
67     equivalent, as long as it also explicitly provides notice of the content as part of the rating.
68          Section 2. Section 78B-6-2104 is amended to read:
69          78B-6-2104. Damages -- Class action.
70          (1) If a court finds that a person [violates] is violating Section 78B-6-2103, the court
71     may award the plaintiff:
72          (a) actual damages; and
73          (b) punitive damages, if it is proven that the person targeted minors.
74          (2) A class action may be brought under this part in accordance with Utah Rules of
75     Civil Procedure, Rule 23.
76          Section 3. Section 78B-6-2105 is enacted to read:
77          78B-6-2105. Civil action for enforcement -- Penalties.
78          (1) A person who predominately distributes or otherwise predominately provides
79     pornographic material to consumers with the intent to earn revenue or profit directly or
80     indirectly from the distribution may not distribute any pornographic material or performance as
81     defined in Section 76-10-1203 without first giving a clear and reasonable warning of the
82     harmful impact of exposing minors to the material or performance. The warning of the harm
83     shall be prominently displayed in the following form:
84     
STATE OF UTAH WARNING

85     
Exposing minors to pornography is known to the state of Utah to cause negative impacts to

86     
brain development, emotional development, and the ability to maintain intimate relationships.

87     
Such exposure may lead to harmful and addictive sexual behavior, low self-esteem, and the


88     
improper objectification of and sexual violence towards others, among numerous other harms.

89          (2) (a) For print publications created after May 12, 2020, the warning in Subsection (1)
90     shall be placed in clear, readable type on the cover of each publication which includes material
91     as defined in Section 76-10-1201.
92          (b) For digital publications, the warning in Subsection (1) shall be displayed in
93     searchable text format and for at least 15 seconds prior to the display of any video or each
94     image which includes material as defined in Section 76-10-1201.
95          (3) A person who violates this section shall be liable for a civil penalty not to exceed
96     $2,500 per violation, plus filing fees and attorney fees, in addition to any other penalty
97     established by law, and enjoined from further violations. The civil penalty may be assessed and
98     recovered in a civil action brought in any court of competent jurisdiction. Each violation shall
99     be the sale or display of potentially harmful content without the warning required in Subsection
100     (1), in accordance with Subsection (2).
101          (4) The determination by a court as to whether a person is distributing material the
102     state considers to be pornographic material or performance as defined in Section 78B-6-1203
103     shall be proven by clear and convincing evidence. All other elements of proof shall be proven
104     by a preponderance of the evidence.
105          (5) The court, in ordering payment, shall specify each amount for the civil penalty,
106     filing fees, and attorney fees.
107          (6) In assessing the amount of a civil penalty for a violation of this chapter, the court
108     shall consider all of the following:
109          (a) the nature and extent of the violation;
110          (b) the number and severity of the violations;
111          (c) the economic effect of the penalty on the violator;
112          (d) whether the violator took good faith measures to comply with this chapter and
113     when those measures were taken;
114          (e) the willfulness of the violator's misconduct;
115          (f) the deterrent effect that the imposition of the penalty would have on both the
116     violator and the regulated community as a whole; and
117          (g) any other factor that the court determines justice requires.
118          (7) Actions pursuant to this section may be brought by the attorney general's office in

119     the name of the people of the state or by a private person in accordance with Subsection (8).
120          (8) A private person may bring an action in the public interest pursuant to this section
121     if:
122          (a) the person has served notice of an alleged violation of Section 78B-6-2103 on the
123     alleged violator and the attorney general's office;
124          (b) the attorney general's office has not provided a letter to the noticing party within 60
125     days of receipt of the notice of an alleged violation indicating that:
126          (i) an action is currently being pursued or will be pursued by the attorney general's
127     office regarding the violation; or
128          (ii) the attorney general believes that there is no merit to the action; and
129          (c) the alleged violator has not responded to the notice of alleged violation or returned
130     the proof of compliance form provided in Subsection (14).
131          (9) If a lawsuit is commenced, the plaintiff may include additional violations in the
132     claim that are discovered through the discovery process.
133          (10) Notice of the alleged violation shall be executed by the attorney for the noticing
134     party, or by the noticing party, if the noticing party is not represented by an attorney, and
135     include a notice of alleged violation. The notice of alleged violation shall:
136          (a) state that the person executing the notice believes that there is a violation; and
137          (b) provide factual information sufficient to establish the basis for the alleged violation.
138          (11) A person who serves a notice of alleged violation identified in Subsection (10)
139     shall complete and provide to the alleged violator at the time the notice of alleged violation is
140     served, a notice of special compliance procedure and proof of compliance form pursuant to
141     Subsection (14). The person may file an action against the alleged violator, or recover from the
142     alleged violator if:
143          (a) the notice of alleged violation alleges that the alleged violator failed to provide a
144     clear and reasonable warning as required under Subsection (1); and
145          (b) within 14 days after receipt of the notice of alleged violation, the alleged violator
146     has not:
147          (i) corrected the alleged violation and all similar violations known to the alleged
148     violator;
149          (ii) agreed to pay a penalty for the alleged violation in the amount of $500 per

150     violation; and
151          (iii) notified, in writing, the noticing party that the violation has been corrected.
152          (12) The written notice required in Subsection (11)(b)(iii) shall be the notice of special
153     compliance procedure and proof of compliance form specified in Subsection (14). The alleged
154     violator shall deliver the civil penalty to the noticing party within 30 days of receipt of the
155     notice of alleged violation.
156          (13) The attorney general shall review the notice of alleged violation and may confer
157     with the noticing party. If the attorney general believes there is no merit to the action, the
158     attorney general shall, within 45 days of receipt of the notice of alleged violation, provide a
159     letter to the noticing party and the alleged violator stating that the attorney general believes
160     there is no merit to the action.
161          (14) The notice required to be provided to an alleged violator pursuant to Subsection
162     (11) shall be presented as follows:
163     Date:
164     Name of Noticing Party or attorney for Noticing Party:
165     Address:
166     Phone number:
167     SPECIAL COMPLIANCE PROCEDURE
168     PROOF OF COMPLIANCE
169     You are receiving this form because the Noticing Party listed above has alleged that you are in
170     violation of Utah Code Section 78B-6-2103.
171     The Noticing Party may bring legal proceedings against you for the alleged violation checked
172     below if:
173     (1) you have not actually taken the corrective steps that you have certified in this form;
174     (2) the Noticing Party has not received this form at the address shown above, accurately
175     completed by you, postmarked within 14 days of your receiving this notice; and
176     (3) the Noticing Party does not receive the required $500 penalty payment for each violation
177     alleged from you at the address shown above postmarked within 30 days of your receiving this
178     notice.
179     PART 1: TO BE COMPLETED BY THE NOTICING PARTY OR ATTORNEY FOR THE
180     NOTICING PARTY

181     This notice of alleged violation is for failure to warn against an exposure to minors of materials
182     considered harmful to minors. (provide complete description of violation, including when and
183     where observed)
184     Date:
185     Name of Noticing Party or attorney for Noticing Party:
186     Address:
187     Phone number:
188     PART 2: TO BE COMPLETED BY THE ALLEGED VIOLATOR OR AUTHORIZED
189     REPRESENTATIVE
190     Certification of Compliance
191     Accurate completion of this form will demonstrate that you are now in compliance with Utah
192     Code Section 78B-6-2103, for the alleged violation listed above. You must complete and
193     submit the form below to the Noticing Party at the address shown above, postmarked within 14
194     days of you receiving this notice.
195     I hereby agree to pay, within 30 days of receipt of this notice, a penalty of $500 for each
196     violation alleged to the Noticing Party only and certify that I have complied with by (check
197     only one of the following):
198     [ ] Posting a warning or warnings, and attaching a copy of that warning and a photograph
199     accurately showing its placement on the print or digital publication.
200     [ ] Eliminating the alleged exposure, and attaching a statement accurately describing how the
201     alleged exposure has been eliminated.
202     CERTIFICATION
203     My statements on this form, and on any attachments to it, are true, complete, and correct to the
204     best of my knowledge and belief and are made in good faith. I have carefully read the
205     instructions to complete this form. I understand that if I make a false statement on this form, I
206     may be subject to additional penalties under Utah Code Section 76-10-1206.
207     Signature of alleged violator or authorized representative:
208     Date:
209     Name and title of signatory:
210          (15) An alleged violator may satisfy the conditions set forth in Subsection (14) only
211     one time for a specific violation.

212          (16) Notwithstanding Subsection (14), the attorney general may file an action pursuant
213     to Subsection (7) against an alleged violator. In any action, the amount of any civil penalty for
214     a violation shall be reduced to reflect any payment made by the alleged violator to a private
215     person in accordance with Subsection (14) for the same alleged violation.
216          (17) Payments shall be made in accordance with this section.
217          (a) A civil penalty ordered by the court shall be paid to the plaintiff as directed by the
218     court.
219          (b) A penalty paid in accordance with the special compliance procedure in Subsection
220     (14) shall be made directly to the noticing party.
221          (18) The Utah Office for Victims of Crime shall receive 50% of any penalty paid in
222     accordance with this section. Funds received shall be deposited in the Crime Victim
223     Reparations Fund created in Section 51-9-404. The penalty amount upon which the 50% is
224     calculated may not include attorney fees or costs awarded by the court.
225          (a) If the penalty is paid to a noticing party in accordance with Subsection (14), the
226     noticing party shall remit the required amount along with a copy of the Special Compliance
227     Procedure document.
228          (b) If a civil penalty is ordered by the court, the plaintiff shall remit the required
229     amount along with a copy of the court order.
230          (19) The attorney general's office shall provide to the Utah Office for Victims of Crime
231     a copy of all notices of alleged violations to which the attorney general's office did not respond
232     with a letter of no merit in accordance with Subsection (13).
233          (20) The court shall provide to the Utah Office for Victims of Crime a copy of the
234     court's order for payment.
235          (21) The Utah Office for Victims of Crime shall:
236          (a) maintain a record of documents and payments submitted pursuant to Subsections
237     (18), (19), and (20);
238          (b) create and provide to the Legislature in odd-numbered years beginning November
239     2021, a report containing the following for the previous two years:
240          (i) the number of notices of alleged violations received from the attorney general's
241     office;
242          (ii) the number of court orders received; and

243          (iii) the total amount received and deposited into the Crime Victim Reparations Fund.
244          (22) Beginning May 1, 2025, and at each five-year interval, the dollar amount of the
245     civil penalty provided in Subsection (3) shall be adjusted by the Judicial Council based on the
246     change in the annual Consumer Price Index for the most recent five-year period ending on
247     December 31 of the previous year, and rounded to the nearest five dollars. The attorney general
248     shall publish the dollar amount of the civil penalty together with the date of the next scheduled
249     adjustment.