This legal guide is intended to provide an overview of the federal and constitutional issues impacting operation of an adult website. The information provided here is geared towards new operators and those thinking about getting into the business. Given the wide-ranging legal issues facing the adult Internet industry, formal legal representation by a qualified adult website attorney is recommended. This guide can be used as a resource to ensure that the relevant topics are discussed with your counsel.
- Introduction
The author has represented adult website operators since the inception of the industry and has defended numerous state and federal obscenity prosecutions against adult website content. This guide is by no means intended as an exhaustive list, but covers the most common legal issues encountered by adult website operators. Adult entertainment is considered a “highly regulated industry” in the United States. That means the government can get away with imposing a wide variety of laws and regulations relating to the operation of adult websites, which differ from other “mainstream” goods or services. However, the First Amendment limits the extent of these regulations if they discriminate against sexually oriented content. The adult website operator should become an expert on legal compliance issues governing the production, distribution, and promotion of erotic content.
- Basic Concepts
Adult websites include things like “pay sites”, which require money from the user to access adult content; “free sites” (such as TGP, MGP, tube sites, or affiliate sites) which provide free access to adult content, usually for promotional purposes; “live webcam sites” which allow users to interact with performers using webcam and chat technology, “clip sale sites” which allow content producers to upload and sell their own video clips, “fan sites” which allow models to post content in a social media environment, and “adult dating sites” which connect individuals interested in erotic social interaction. Publishing adult content is protected by the First Amendment to the U.S. Constitution, under well-settled legal precedent. The creation of adult content has been recognized as legal (and not a violation of prostitution laws) in a couple of states, but the issue has not been addressed in most parts of the country. Obscenity and child pornography are illegal, and involvement with these categories of material can result in serious criminal prosecution. Obscenity laws are rarely used these days, but remain on the books as a potential tool for prosecution of adult website operators. Child pornography and human trafficking laws impose significant age verification obligations on website operators involved with the creation, publication, or advertising of sexually-explicit content.
- Age Verification, Model Releases, and Records Keeping Obligations
Adult website operators must take steps to ensure that performers are over the age of 18 in the U.S. Federal law imposes numerous records keeping obligations. Title 18 U.S.C. § 2257 (and associated federal regulations) require that performers in sexually explicit media provide government-issued ID’s, and that all producers (including secondary producers such as website operators) maintain records associated with the performer. Our firm offers a mobile app; Quick2257, to help comply with these federal records keeping obligations. Model releases must be obtained and kept separately from the Section 2257 age records. These releases should be drafted by an experienced adult website lawyer, and cover issues such as right of publicity, invasion of privacy, consent, sexually transmitted infections, sexual harassment, condom usage, and character/persona rights. Some banks and credit card processors require consent documents be obtained from any person depicted in online adult content. The publication of sexually explicit media on a website generally requires a Section 2257 disclosure statement, which identifies the location of the mandatory records. Some user-generated content or profiles are exempt from these obligations. For example, tube sites, fan sites, and adult dating sites can position themselves to take advantage of Section 2257 exemptions, if operated properly. However, banks and service providers may require additional compliance obligations not mandated by law.
- Intellectual Property Issues
A variety of intellectual property issues face adult website operators including trademark, copyright, and DMCA safe harbor. The adult website industry has also been targeted by numerous ‘patent trolls’ based on certain technology utilized to display the erotic media. Website operators must become familiar with the copyright registration process when producing adult imagery. Trademark concerns should be evaluated before selecting a brand name or website domain. If eligible, a trademark application should be submitted to the U.S. Patent and Trademark Office, to protect the site’s brand name and/or logo. Infringement and piracy is rampant on the Internet, particularly in the adult industry. Adult website operators typically develop an intellectual property rights enforcement strategy which includes policing for infringement, transmission of cease and desist letters, DMCA takedown notices, UDRP domain name arbitrations, and litigation when necessary. Those online service providers who permit uploading of content by independent third party users must familiarize themselves with the Digital Millennium Copyright Act (“DMCA”), which provides ‘safe harbor’ from copyright infringement claims. However, the DMCA imposes stringent requirements in order to assert safe harbor status. The website operator must: 1) designate an agent for receipt of infringement notices by filing a designation with the U.S. Copyright Office; 2) post a legally-compliant Notice & Takedown Policy, describing how to submit a DMCA notice or counter-notification; 3) fairly implement a repeat copyright infringer policy; and 4) notify its subscribers of the Repeat Infringer Policy. Intellectual property is any adult website operator’s most valuable asset. Intellectual property rights should be identified, registered, and enforced. We encourage copyright holders to use our mobile app; QuickDMCA to efficiently transmit DMCA takedown notices to websites facilitating the infringement of their content.
- Obscenity, Prostitution, Indecency, and Underage Materials
This section will evaluate core content-related concerns with the production and distribution of sexually-explicit material. Pornography is legal, and constitutionally protected under the First Amendment. Obscenity is illegal and can result in serious criminal penalties. The difference between the two is governed by the Miller Test, which focuses on whether the content is patently offensive, appeals to the prurient interest in sex (based on community standards), and whether it lacks serious literary, artistic, scientific, or political value. Even cartoons or pure text can be deemed obscene, under current case law. Adult website operators must be intimately familiar with the Miller Test and avoid publication of obscene materials. The production of erotic material is also likely protected by the First Amendment, although only 2 states have court rulings which affirm the legality of adult content production; California and New Hampshire. In other states, the potential applicability of prostitution laws to the act of paying adults to engage in sexual activity is unsettled. Indecent materials are legal for adults to view and publish but can be illegal if made available to children. Online age verification is a difficult issue, since existing technology limits the ability of a website operator to identify the age of the individual behind the computer keyboard or mobile device. However, advances in technology and database information has allowed for more effective online age verification options. We permit our clients to use the patented birthdateverifier.com device for online age verification. Other solutions exist, but none are foolproof. Biometrics (such as fingerprints or facial recognition) have made it easier to identify the age of website users. A more serious issue arises with the age of persons depicted in sexually explicit material. Child pornography, exploitation, and sex trafficking offenses are some of the most serious crimes in the nation, at both the state and federal levels. Adult website operators must make every effort to ensure that underage materials are not published on their sites. Apparent underage material posted to a website by third parties must be reported by the website operator to the CyberTipline, operated by NCMEC, pursuant to 18 U.S.C. § 2258A. Even if all performers are over 18, webmasters should never promote their content as including any child pornography, ‘Lolita’ or ‘underage’ material. Federal ‘pandering’ laws have been used to prosecute online advertisers who promote erotic material as depicting underage individuals even if all models are over 18. However, erotic content which involves performers who happen to look young, but are over 18, is not illegal. Attempts to make such ‘virtual’ child pornography illegal have been rejected by the U.S. Supreme Court, as a violation of the First Amendment.
- Website Contracts, Policies, Terms, and Conditions
The operation of an adult website will require the careful drafting of numerous online agreements, contracts, policies, terms, and conditions. The following is a partial list of the agreements typically associated with adult website operation: 1) User Terms & Conditions; 2) Advertiser Agreement; 3) Privacy Policy; 4) Affiliate Agreement; 5) Model Agreement; 6) Section 2257 Disclosure Statement; 7) Anti-Spam Policy; 8) Human Trafficking/Abuse Policy; 9) DMCA Notice & Takedown Policy; 10) Repeat Infringer Policy; 11) Website Development Agreement; 12) Copyright/Trademark Assignments; 13) Photographer (Work for Hire) Agreement; 14) Subpoena Compliance Policy; and, 15) Section 2257 Data Acquisition Form. Each of these documents is intended to address a unique set of legal concerns. Correct implementation and utilization of these important agreements and policies is essential to mitigate legal risks.
- Promotion & Marketing
The Federal Trade Commission regulates adult website operations in the U.S. The FTC has used its authority to enforce consumer protections laws even against website operators located in other countries – often with the assistance of foreign consumer protection agencies. Any promotional device that may be considered ‘unfair’ or ‘deceptive’ can result in an FTC investigation, and the imposition of significant fines, penalties, and disgorgement of profit. Use of ‘free’ promotions to generate interest in online goods or services is a risky endeavor, and should only be undertaken in consultation with experienced advertising lawyers. The FTC, and related state agencies, have pursued adult website operators for all manner of allegedly deceptive activity involving spamming, insufficient legal disclosures, and deceptive advertising. In the often-competitive world of adult entertainment marketing, all promotional campaigns should be rigorously evaluated for compliance with state and federal advertising regulations.
- FOSTA/SESTA
In April 2018, the United States adopted a law entitled FOSTA/SESTA. The bill was initially drafted to combat human trafficking through websites, however its scope broadened significantly before the law passed. FOSTA made some radical changes to the functioning of the Internet. First, it created a new crime of “promoting or facilitating” prostitution using an interactive computer service. Second, it removed the legal immunity from liability that online platform operators previously enjoyed, in connection with acts of prostitution or human trafficking. Finally, it lowered the standard for proving sex trafficking crimes against website operators. The combined effect of these changes was widespread censorship of sexually-oriented speech from the Internet. Since online platform operators are no longer immune from claims relating to prostitution, many have chosen to avoid all risk by prohibiting all discussion or expression relating to sex. It can be difficult for an online platform operator to know whether user content in some way promotes or facilitates prostitution, so many have taken a conservative approach to legal compliance. Adult website operators must learn about FOSTA/SESTA in order to properly evaluate the new legal risks created by this legislation.
- Conclusions & Recommendations
Adult website operation can be profitable, but comes with inherent legal risks due to the controversial nature of the content. The adult entertainment industry is a highly regulated field and requires careful attention to legal detail. An experienced attorney, familiar with the First Amendment, Adult Entertainment and Internet Law will be an essential part of the team. Operational risks can be substantially reduced by addressing relevant legal issues prior to launch.
Additional legal information about adult website operation can be found here:
Shooting the Messenger, Stanford Law and Policy Journal
http://www.sin20.com/audio/by/title/01_06_09_-_larry_walters_-_the_new_doj_2257_revisions_you
https://www.firstamendment.com/dmca-agent/
https://www.firstamendment.com/wp-content/uploads/2020/05/SexLiesChildren.pdf
https://www.firstamendment.com/tube-sites/
https://www.firstamendment.com/website-review/
https://www.firstamendment.com/free-sites/
https://www.firstamendment.com/copyright-enforcement/