Relating to materials used for prurient purposes, including age verification requirements for certain commercial entities, prohibitions on the publication, distribution, creation, or development of prohibited material, and prohibitions on child sexual exploitation material, and providing civil penalties

This bill relates to materials used for prurient purposes. DIVISION I —— PROHIBITED MATERIALS ON THE INTERNET. The bill defines “child sexual abuse material”, “commercial entity”, “creation or development”, “digitized identification card”, “distribute”, “information content provider”, “interactive computer service”, “knowingly and intentionally”, “material harmful to minors”, “minor”, “news-gathering organization”, “obscene material”, “prohibited material”, “reasonable age verification”, and “transactional data”. The bill provides that a commercial entity that knowingly and intentionally publishes or distributes material harmful to minors on an internet site, of which more than one-third of the content is material harmful to minors, shall use reasonable age verification to ensure that a user attempting to access the internet site is not a minor. The bill makes the same requirement for commercial entities that distribute material harmful to minors on an internet site and commercial entities that are responsible for the creation or development of material harmful to minors. The bill prohibits a commercial entity, or a third party that performs reasonable age verification for a commercial entity, from retaining identifying information about an individual after performing reasonable age verification on the individual. The bill makes a commercial entity that allows a minor to access material harmful to minors civilly liable to the minor as detailed in the bill. A commercial entity, or a third party that performs reasonable age verification for a commercial entity, will be civilly liable as detailed in the bill for retaining identifying information after performing reasonable age verification on an individual. The bill prohibits any person from allowing or facilitating, distributing, creating, or developing prohibited material on an internet site, and makes a person in violation of this provision of the bill civilly liable, as detailed in the bill, to a minor depicted in or exposed to child sexual abuse material, or an individual depicted in or exposed to obscene material that is not child sexual abuse material. The bill exempts bona fide news or public interest broadcasts, internet videos, reports, or similar events from the bill’s provisions. The bill shall not be construed to affect the rights of a news-gathering organization or require a news-gathering organization to perform reasonable age verification. The bill exempts an interactive computer service provider (service provider) from liability under the bill on account of any action taken voluntarily and in good faith to remove or prevent access to prohibited material, or to enable or make available to information content providers or others the technical means to block or prevent access to the prohibited material. The bill details when a service provider is not exempt from the bill. The bill allows the attorney general to seek injunctive and other equitable relief against a person in violation of the bill. The bill is intended to create a statutory cause of action for knowing and intentional acts in violation of the bill. The duties and liabilities created in the bill do not depend on whether a violator would be considered a publisher or distributor of prohibited content or would be considered in breach of a standard of care under one or more common law causes of action. The bill allows an individual to assert a violation of the bill as a claim in any judicial or administrative proceeding without regard to whether the proceeding is brought by or in the name of the government, any private person, or any other party. The bill allows an action under the bill to commence, and relief to be granted, in a court of the state without regard to whether the individual commencing the action has sought or exhausted available administrative remedies. Sovereign immunity shall not be an affirmative defense in any action pursuant to the bill. The bill allows individual claims that satisfy the generally applicable standards for joinder or class action elsewhere provided by law or rules of court, as applicable, to combine their claims in a single action. The bill allows for the imposition of punitive damages if a person violates the bill in a manner that satisfies the standards for imposition of punitive damages elsewhere provided by law. Remedies available under the bill may be awarded without regard to whether the conduct giving rise to the remedy resulted in a criminal conviction. The bill does not allow contributory fault to bar a claimant’s recovery, and no claimant shall be allocated fault under Code chapter 668 (liability in tort —— comparative fault). One hundred percent of the fault in any such action shall be allocated to persons, other than the claimant or claimants, found to be causally at fault. No party may disclose to the trier of fact the impact of this provision. The bill exempts a judge, agent or employee of a court, or an attorney or agent or employee of an attorney, who views obscene material, or material that depicts, describes, or promotes child pornography or child sexual exploitation, from criminal responsibility and civil liability when viewing or possessing such material in good faith during the course of a judicial process or the representation of a client or potential client, and while acting within the scope of such judicial process, representation, employment, or agency relationship. DIVISION II —— CHILD SEXUAL EXPLOITATION MATERIAL. The bill defines “child sexual exploitation material” as an anatomically correct mannequin, robot, doll, device, or image that is intended for use in sexual acts and that has features that resemble a minor. A person who knowingly buys, sells, delivers, possesses, or distributes child sexual exploitation material (CSEM) is in violation of the bill. A person who violates this provision is subject to a civil penalty in an amount not to exceed $10,000 for each violation. Such a civil penalty collected by the state shall be deposited in the general fund of the state. The bill provides an individual whose image or likeness is represented by CSEM a cause of action against a person who bought, sold, delivered, possessed, or distributed the CSEM that represents the individual’s image or likeness, and allows the individual to collect actual damages, reasonable attorney fees, reasonable expert witness fees, court costs, and noneconomic damages in an amount not less than $5,000 per violation.