Also, consider the fact that links on one website directing traffic to another website or to another party's content database without an appropriate disclaimer can be deemed to constitute endorsement or promotion of the other site or the linked content. If you get paid for sending traffic to the other site or to the linked content, or if you pay for the link, a dissatisfied party, or worse, a defrauded party could potentially sue you for "recommending" it to the offending site. The same logic would apply if the party was an undercover law enforcement agent that you directed to an affiliate marketing program site for a commission. For example, if the site is prosecuted for distributing obscene materials or for failing to comply with federal record-keeping and labeling laws (18 U.S.C. §2257), you might be at risk for prosecution for aiding and abetting or even conspiring with the party accused of engaging in the alleged illegal activity.
In this article I will address the most important types of disclaimers and other documents that should appear on virtually every adult 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 your website has all the necessary disclosures and "gives great notice."
We are in a period of increasing prosecution of the online adult entertainment industry by federal, state and local law enforcement agencies. When it comes to the online adult entertainment industry, the attention of politicians and law enforcement is increasingly focusing on the problem of underage users accessing adult content. Therefore, the first thing a webmaster might want to communicate to a web surfer of unknown age coming to his or her adult website is the fact that it is an adult website. I am truly amazed at the number of adult sites depicting hardcore content on their splash page that fail to advise parties prior to accessing that page that the content they are about to see is sexual and contains explicit depictions of erotic material intended for adults only. In my opinion, websites that fail to provide a homepage that gives such a warning are virtually asking to be put on a prosecution task force's "easy target" list.
Addressing the widespread desire of most Americans to prevent minors from accessing hardcore sexual material online, Congress passed the Child Online Protection Act, otherwise known as COPA. The statute prohibits the distribution of matter harmful to minors (i.e. sexual content) via the Internet unless the distributor first takes reasonable steps to ensure that the person receiving the content is an adult. One specified "safe-harbor" means of taking reasonable steps to ascertain the age appropriateness of a web surfer visiting a site is to require the surfer to make a payment by a credit card or debit card prior to the display of any sexually explicit content.
COPA: Law is Enjoined
COPA has been judicially enjoined virtually from the time the law became effective in 1998. However, after numerous court decisions, including two by the U.S. Supreme Court, the challenge to the constitutionality of COPA will finally go to trial later this year. Regardless of the outcome of the case, however, it is clear that Congress will continue to try to address the problem of underage access to adult websites. (For example, Sen. Blanche Lincoln already has introduced new federal online harmful matter legislation.) It also is clear that those sites that do nothing to warn children and their parents of the fact that they are accessing explicit content will be magnets for prosecution. Consequently, in addition to an appropriate warning notice, adult website owners also should seriously consider registering their sites with Net Nanny, Safe Surf and/or other similar producers of content-filtering software that assist parents in keeping kids away from porn.
But an adult entertainment website owner can do more than just warn a visitor that the content of his site is only for adults. 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 18 years or older. Consequently, a properly drafted notice governing the use of a website that limits its authorized use to persons over the age of 18 years could make a minor who intentionally disregards the notice and accesses the site in violation of the website license a willful copyright infringer subject to statutory damages of up to $150,000 per work infringed. There is no reason to treat your stolen content and the thieves that steal it any differently than the music industry treats online music pirates.
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 — usually in a database — unauthorized access to a website's computers and related databases in violation of a website's posted authorized use policy and may constitute a federal or state crime.
Like the previous example regarding copyright infringement by minors who intentionally ignore a proper website notice, the anti-hacking and computer privacy laws might also be applicable to activities of minors accessing adult websites in excess of the authorization given to them by the site's owner.
It is interesting to note that while minors may not be able to enter into contracts rendering online click-through promises of age appropriateness, they can, nevertheless, infringe copyrights and violate federal and state anti-hacking and computer privacy laws.
What this means is that properly drafted and configured warning pages can potentially present an interesting problem to a prosecutor seeking to charge a webmaster for distributing obscene materials to minors. If, for example, the minor gained access to the webmaster's computers and databases in excess of the authorization granted to the minor (which, pursuant to a properly worded splash page notice would normally be none), then the minor's access to the webmaster's content that resulted in allegations of distribution of harmful matter 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 the obscene matter to the minor.
In part two, we'll look at jurisdictional considerations and other notices.
Gregory A. Piccionelli, Esq. is one of the world's most experienced Internet and adult entertainment attorneys. He can be reached at Piccionelli & Sarno at (310) 553-3375.
