A surprisingly large number of adult entertainment companies fail to post appropriate legal compliance, disclaimer and other “notice” statements on their websites. Many even conduct business online without providing users with adequate website terms and conditions of use. Such omissions can be costly. They can limit an online company’s ability to enforce its rights or defend itself in a civil action.
More importantly, however, failure to include some notices required by law can expose an adult entertainment company and its principles to criminal prosecution. Fortunately, these problems can usually be easily and inexpensively avoided by obtaining and posting professionally drafted adult website disclaimers, terms of use and other notice statements. In fact, the money spent by an online adult entertainment business to acquire and post such documents and notice on its website may be the single most cost-effective expenditure for legal services the company can make.
Website notices, compliance statements, disclaimers and terms of use agreements are critical features of adult entertainment websites. When properly drafted and effectively deployed on a website they can be extremely effective means of protecting an adult entertainment company’s rights.
In this article I will discuss the most important types of disclaimers and other documents that should be incorporated into virtually every adult entertainment website. A word of warning, however, this article is not intended to be legal advice. You should consult with competent legal counsel to be sure that your website has all the necessary disclosures, incorporated legal documents, and in general, “gives great notice.”
“ADULTS ONLY” NOTICE.
One of the first things an adult website should communicate to a person accessing the site is the fact that it is an adult only website. I am truly amazed at the number of adult websites depicting hard core content on their splash page that fail to previously advise site visitors that the content they are about to see is sexual and contains explicit depictions of erotic material intended for adults only. In my opinion, adult website owners that fail to do so are not only inviting trouble, they are also missing an opportunity to erect a defensive barrier to some types of civil and criminal liability.
At the present time there is no specific federal law requiring adult websites to effectively block a minor’s access to explicit content. This is because all previous attempts by Congress to effectuate such regulation have been struck down by the courts on constitutional grounds.
But while there isn’t any federal law specifically requiring the prevention of a minor’s access to adult websites, that doesn’t mean that no effort should be made to limit a minor’s access to a website’s hardcore material. The reasons for this are many. For example, the federal obscenity laws, which are not, unfortunately, in any current danger of constitutional invalidation, include a regulation that prohibits a party from knowingly transferring obscene matter to a minor. Violation of the law is punishable by up to 10 years in prison and a fine of up to $250,000.
To be sure, if a minor accesses hardcore content on an adult website without an “adults only” warning page or other notice, that fact alone does not automatically imply that the owner of the website has “knowingly” provided adult content to the minor. But, in my opinion, an online adult business is well advised to include such notice to evince the site owner’s intent not to distribute hardcore content to minors and to aid parental efforts to restrict their children’s access to such content. Because of this, in addition to an appropriate “adults only” warning notice, I regularly advise my clients to seriously consider registering their sites with Net Nanny®, Safe Surf® and/or other similar producers of adult content filtering software that assist parents in keeping kids away from porn.
But an adult entertainment website owner can use a properly worded age restriction warning to do more than just warn a visitor that the site’s content is only for adults.
A number of federal and state laws prohibit computer hacking and other unauthorized access to computers and computer databases. Since a website’s content resides on a computer, unauthorized accessing of a website’s computers and related databases by a minor with intentional disregard of a website’s posted authorized use policy may constitute a crime under federal and/or state law.
Because of this, minors that intentionally ignore a proper website notice prohibiting their access, might well be doing so in violation of applicable anti-hacking and computer privacy laws. This means that a properly drafted website warning page can, potentially, present a legal challenge to a prosecutor seeking to charge a webmaster for distributing obscene materials to minors.
If, for example, a minor gains access to the webmaster’s computers and databases in excess of the authorization granted (which, pursuant to a properly worded splash page notice would normally be no authorization), then the minor’s access to the website’s content that resulted in allegations of distribution of obscenity to the minor might itself potentially be a criminal act by the same minor. While discussion of the potential consequences of such a potentially criminal act by a minor (including whether the minor is old enough to be culpable) are beyond the scope of this article, suffice it to say that such a scenario could present significant legal challenges to a prosecutor attempting to prove beyond a reasonable doubt that the webmaster actually intended to distribute obscene matter to the minor. Essentially, a properly worded warning statement can also be used to show that the minor’s access to the adult content was not the result of a criminal act by the website owner, rather it was the result of minor’s criminal act of hacking into the website owner’s computers.
Additionally, consider the fact that websites are essentially a compilation of intellectual property owned or licensed by the website owner. As such, the owner/licensee has the right to impose conditions upon the use of his or her intellectual property. For example, a party that owns the copyrights in photographs and videos displayed on or performed in a website can limit authorized publication and performance of his or her photographs and video clips to persons over the age of eighteen years. Consequently, a properly drafted website notice limiting authorized access to persons over the age of eighteen years could cause a minor who intentionally disregards the notice to be a willful copyright infringer. This, in turn, could subject the minor, and potentially the minor’s parents, to damages resulting from the infringement. If the website owner has registered the copyright in website, these damages might include statutory damages of up to $150,000.
Other Limited Access Notices.
Obscenity prosecutions of a party distributing content via the web requires the government to prove that the accused party intended that the allegedly obscene material be distributed to or from the location in which it is charged as being obscene.
The government typically brings obscenity prosecutions in conservative jurisdictions hostile to adult content where the charged material is more likely to exceed the community standards of the locale. An online intellectual property license comprising part of a website’s notice page (or part of the website’s terms of use, for example) governing the use of the website’s intellectual property can be used to prohibit the accessing or use of the website’s hardcore content in specified jurisdictions. For example, if there is an allegation of distribution of content to a hostile jurisdiction, and that jurisdiction is also listed as a prohibited distribution area by the website owner in the website’s terms of use agreement, the website owner may be entitled to use that fact in his or her defense to indicate a lack of intent to distribute the subject adult content into the jurisdiction where it is being charged.
Moreover, for the same reasons stated above regarding minor access to website content in excess of authorization given, any party accessing website content in violation of location limitations imposed would also arguably run the risk of violating state and federal anti-hacking and computer privacy laws.
Will a prohibitory notice support the argument that there was no intent to distribute adult content to a minor or to a person in particular location? Maybe. It depends on the totality of the circumstances. Intent to distribute content to a minor or to a particular location can be proven in a variety of ways. Consequently, an online distributor of adult content should not rely on prohibitory notices alone, and should always seek competent legal advice.
Federal Record Keeping Compliance Statements.
The statements required by 18 U.S.C. §2257, 18 U.S.C. §2257A and 28 CFR 75 et seq. (the “2257 regulations”) are perhaps the most important notice requirements, which must be appropriately incorporated into adult entertainment websites in which actual or simulated sexual conduct is depicted. Failure to comply with any of the 2257 regulations can result in imprisonment for up to five years for a first offence and ten years for subsequent offenses, as well as substantial fines. The 2257 regulations are very complex and specify exactly where and how the compliance statement is to be published. Unfortunately, the issue of compliance with the 2257 regulations is beyond the scope of this article. Consequently, the reader is urged to seek competent legal counsel familiar with the 2257 regulations for further information.
Privacy Policies.
The main purpose of a website privacy policy is to disclose what a website owner will do with data it collects from persons using the website. California, for example, requires websites doing business in California to have a privacy policy. If you don’t have a privacy policy on your site, you should consult a competent attorney to evaluate your circumstances to see if you should post a privacy policy and, if so, to help you develop an appropriate policy. It is important to note that once you have a privacy policy, you must comply with its terms. The Federal Trade Commission and many states view a website owner’s violation of his or her own privacy policy as a deceptive trade practice.
Copyright Notices.
A website owner does not need to post a copyright notice to protect the copyrights in the content appearing on the site. Such notice will help prove that a party who has pirated the site’s content did so willfully because the content contained a notice that the material was subject to the indicated copyright holder’s copyrights in the infringed works. It is important to note that, as stated in previous example above, if the content is registered with the Copyright Office (before the infringer’s infringement), a copyright owner can obtain statutory damages of up to $150,000 per work from a willful infringer.
Trademark Notice.
If words, phrases or symbols are functioning as trademarks on a website, they should be identified as such. Trademarks are intellectual property, and some can become quite valuable. If a mark identifies the source of goods it should be marked with a “tm” (trade mark) notation. If the mark identifies a service, it should be marked with a “sm” (service mark) notation. Additionally, a website owner may want to register the mark with the U.S. Patent and Trademark Office (www.uspto.gov). Doing so has many benefits, including the potential awarding of attorney’s fees in the case of infringement, and potentially treble damages in the case of willful infringement. The benefits and mechanics of trademark registration and trademark notice giving are also, unfortunately beyond the scope of this article. Please contact our office or other competent counsel for more information regarding federal trademark registration.
Website Terms and Conditions of Use.
Every website should have its own terms and conditions of use. This is the website owner’s opportunity to precisely regulate how the website’s intellectual property may be used. A properly drafted set of terms of use can save an online company thousands of dollars or more and potentially provide the company with important legal defenses. For example, a website terms of use can often provide a set monetary limitation of liability and specify where and how disputes involving the website and/or its products and services are to be resolved. They can also specify the mode of dispute resolution, e.g., arbitration instead of court litigation. These are very powerful legal tools if they are used correctly.
Generally every website business is differently situated from others to some extent. A well-drafted set of terms and conditions for use of the website, for membership to the site, and/or participation in an affiliate program will reflect this. I have written literally hundreds of website terms and conditions in the last 17 years that have ranged in length and complexity from short one- paragraph agreements to 50-plus paragraph monsters. Unfortunately, there is no “one size fits all” solution. But that is also why website terms of use agreements can be such a flexible and powerful legal tool for online adult entertainment businesses.
“Leaving Our Website” Notices.
Finally, I am a strong advocate of noticing an adult entertainment website visitor that he or she is leaving the control of one website owner and passing into the control of another. This is yet another legal tool that can, in some instances, help defend a website owner from allegations that the owner should be responsible for the bad acts of another website owner. Of course, if the webmaster actually knows of infringing or illegal activity at the receiving end of a link all the notice in the world will not insulate the webmaster. Consequently, adoption of this form of notice, like so many discussed above, should be undertaken after consultation with your attorney.
In sum, website notices, compliance statements, disclaimers and terms of use agreements are critical features of adult entertainment websites. When properly drafted and effectively deployed on a website they can be extremely effective means of protecting an adult entertainment company’s rights and reducing its risk of civil and criminal liability.
This article is not intended to be, nor should it be considered to be, legal advice. If you have a legal question or other matter related to any of the topics discussed in this article, I strongly urge you to contact our office at the number below or seek the counsel of another qualified and experienced adult entertainment attorney familiar with the legal matters discussed in this article.
Gregory A. Piccionelli is an intellectual property attorney specializing in adult entertainment matters. He can be reached at Piccionelli & Sarno at (818) 201-3955 or greg@piccionellisarno.com.
