Since the Supreme Court’s decision in Free Speech Coalition v. Paxton, more state age verification laws have been enacted around the United States, as well as proposed at the federal level and in other countries. Meanwhile, lawsuits resulting from AV laws have begun to play out in the courts. This roundup provides an update on the latest news and developments on the age verification front as it impacts the adult industry.
West Virginia Joins the AV Club
In West Virginia, Gov. Patrick Morrisey has approved HB 4412. As in numerous other states, the new law requires adult sites to verify that users are over 18, and allows both individuals and the state attorney general to sue companies for violations. Penalties can include $10,000 per day for operating a website in violation of AV requirements, plus up to $250,000 if one or more minors actually accesses adult content due to a site’s lack of age verification. The state’s Office of Technology is empowered to propose further rules for implementing the new law.
Wisconsin Bill Takes Aim at Jurisdiction Issue
Meanwhile in Wisconsin, AB 105 has passed both houses of the state legislature and now awaits Gov. Tony Evers’ signature. The AV bill would allow anyone to bring an action seeking actual and punitive damages from noncompliant providers, with penalties of up to $10,000 per violation for failure to age-verify users in the state.
Unusually, the bill includes language stating that “sovereign immunity” may not be used as a defense for failure to implement age verification. The intent of that provision is unclear in this context, as the term generally applies to governments, not commercial entities.
As industry attorney Lawrence Walters told XBIZ, “Sovereign immunity is raised as an affirmative defense by a state, not a private company.”
It is possible that the provision is an attempt to head off challenges over jurisdiction. In February, a federal judge dismissed lawsuits brought against two adult websites in Kansas for alleged violations of the state’s age verification law. The sites’ operators are not based in Kansas, and the judge cited jurisdiction in her ruling, noting that the plaintiff failed to show that the sites purposefully directed their activities at Kansas. The amended complaint in a third, ongoing case attempts to address this issue and establish jurisdiction by arguing that adult site SuperPorn intentionally targeted Kansas residents.
Moving Through the Legislative Pipeline
In Ohio, HB 84 — aka the “Innocence Act” — has now passed the state House and is currently awaiting a hearing the state Senate Judiciary Committee. As detailed in XBIZ’s Mar. 6 AV Bulletin, the legislation would augment Ohio’s AV rules by holding sites liable if users circumvent the law via virtual private networks (VPNs). Utah’s governor signed a similar provision into law last month. The amended Ohio bill would also exclude adult content providers from the law’s exemption for platforms classified as “interactive computer services.” That provision appears to be aimed squarely at Pornhub, which has stated that Ohio’s current AV law does not apply to it because it is an interactive computer service as defined under Section 230 of the Communications Decency Act.
In New Hampshire, SB 648 has passed the state Senate and is set for a hearing next week in the House Commerce and Consumer Affairs Committee. As XBIZ reported in November, the original draft of the bill included language that seemingly contradicted the Supremacy Clause in Article VI of the U.S. Constitution by asserting, “A commercial entity shall not claim Section 230 immunity under the federal Communications Decency Act as a defense in any civil action arising from a violation of this chapter.” However, that provision has been removed and does not appear in the current amended bill.
Federal and International AV News
On the federal front, the fate of a proposed federal age verification mandate may depend on whether members of Congress can reconcile differences between the House and Senate versions of a broader child protection package, the KIDS Act. If that legislation fails, the federal AV rule could still be addressed separately via the SCREEN Act, which introduced the proposal. However, the KIDS Act, which incorporates an amended version of the SCREEN Act, has gained more legislative traction than the SCREEN Act has managed to gain on its own.
For AV enforcement actions in Europe, see XBIZ’s recent coverage of investigations of adult sites by the European Commission and U.K. media regulator Ofcom.
