The Danger Zone

Stephen Yagielowicz
Recently, XBIZ World asked the industry's top attorneys, "What is the one thing adult webmasters aren't doing to protect themselves?"

Here's what they had to say:

"The one major thing — among many others — that adult webmasters are not doing to protect themselves is to treat their businesses like actual businesses, not as some sort of hobby. In an environment where the adult Internet industry generates $3.5 billion annually, it is nothing short of amazing that the most rudimentary requirements for running a business do not occur. It never ceases to shock me how many adult webmasters tell me that they do not have a partnership/corporate structure agreement in writing, but instead just a handshake agreement. Handshake agreements have no business existing in any industry, much less the burgeoning adult Internet industry. In that same vein, the failure to create an appropriate corporate structure or to establish who the rightful domain name owner is and have an agreement regarding the same is incomprehensible. Additionally, the lack of such fundamental written agreements governing confidentiality, non-compete, nondisclosure, webmaster responsibility and/or independent contractor/employment agreements only raises the problems even further. In certain circumstances, where these agreements/contracts do exist, they tend to be acquired from a source that does not address the specific needs of the adult webmaster. Accompanying all of these shortcomings is the failure to obtain necessary professional support, such as lawyers, accountants and insurance agents, all of whom are not perceived to provide a valuable service, when, in fact, they may provide the only line of defense in troubled times."

— Eric M. Bernstein, Eric M. Bernstein & Associates

"They are not taking the time to review what appears on their sites in the unrestricted portions and, further, they are failing to police the content of what they offer for sale and where they offer it for sale. Finally, they are failing to obtain legal advice from attorneys who have actually tried cases and know what to look for and what to avoid."

— Paul J. Cambria, Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria

"From my perspective, they take too many shortcuts, by which I mean they do too many things that have legal ramifications without consulting their attorney, assuming they have one. For example, one of the times I was on a panel at a trade show, an audience member asked a question that made it obvious he was shooting content and had never spoken to an attorney. He thought he was doing just fine because he had picked up all the legal knowledge he needed from reading magazines and from the boards. My response was, ‘You shoot content and have never talked to an attorney? You must have a death wish!' And I was serious. Too often, webmasters think it is fine to copy documents and procedures from elsewhere without any review by an attorney. The problem with that is, first, not knowing whether the person he is copying it from had competent advice and, second, not knowing whether your circumstances are different and require a different approach. I saw a website in Florida once that copied the terms and conditions of a California site — it required members to agree to settle all disputes in California! Oops!"

— Clyde F. DeWitt, Weston, Garrou & DeWitt

"If you are not proud of your content, you must change. Someday you may find yourself before a jury (definitely not of your peers) determining whether you are going to lose your liberty. If you would be uncomfortable having your content displayed before a group typically comprised of older, retired people; then re-think your content. Also, know not only your content but the content of your affiliates. It is vital to check monthly the content of the sites for which you carry banners. If you derive income from those banners, you are likely to be held responsible for troublesome content, especially child pornography. It surprises most webmasters how frequently their affiliates have changed their content, often dramatically. You must check their content and be comfortable with defending their content as well as yours. For the first time, the federal government has charged a website retailer for sales. Other websites are likely to follow. Know your content and be proud of your content. Your liberty depends upon it."

— Jeffrey Douglas, attorney at law

"While it is difficult to focus on one specific point of what adult webmasters should be doing to protect themselves, I am consistently surprised at the level of ignorance and misinformation concerning 2257 compliance and obscenity. Webmasters have a responsibility to be informed on these issues on a general basis and should always have an awareness of the content on their sites. Borderline material will invite obscenity prosecutions and webmasters should be prepared. While all material can be defended successfully in court, webmasters should be prepared to put up a fight if they market borderline material. In addition, while it does not appear that secondary producers need to be currently concerned with scrupulously maintaining 2257 records, the prospect of changes to 2257 that are pending in Congress makes it imperative that some procedures are put in place now to ensure some level of 2257 compliance in the event Congress decides to amend the law. This is something that could come about very quickly without a lot of warning. So far, Congress has been focusing on gay people who want to get married, but enacting Draconian, unconstitutional legislation for the alleged protection of children plays very well heading into an election. And we know this will be an ugly one."

— Michael W. Gross, Schwartz & Goldberg PC

"I think the most dangerous thing that webmasters neglect is the effect their commerce has on the people who are not willing consumers of adult fare. The marketing tactics and composition of many websites show remarkable insensitivity to the very serious feelings o f people who do not want to be exposed to this type of content. Spam is a major concern, but second, the websites that don't comply with COPA or the Amber Alert are the chief offenders. This results in people innocently opening their email and seeing graphic sexual materials. If those people ever end up on a jury, you're going to have a monumental struggle to give the defendant a fair trial. Another problem is free tour content. There seems to be this view that unless there is actual sexual penetration, it is not harmful to minors. But if a casual surfer who happens to be a lady looking for petunias or marmalade recipes ends up seeing erect penises, someone is going to be offended. The No. 1 thing that webmasters neglect is to be sensitive to the concerns of uninterested consumers who don't want to see graphic sexual materials containing images as simple as nudity."

— J.D. Obenberger, J.D. Obenberger & Associates

"The single most important thing webmasters can do to protect themselves from legal problems is to gain a basic understanding of the laws that pertain to their businesses. Over the years, I have observed that the greatest cause of preventable legal grief for webmasters has been their general lack of understanding of the laws that govern what they do. Knowledge is power, and in a highly regulated area like adult entertainment, legal knowledge is particularly powerful. Correspondingly, a lack of legal knowledge is particularly dangerous. It can lead to costly litigation or, even worse, to life-crushing criminal prosecution. The solution: Learn the legal basics from reliable sources. Hiring a qualified adult entertainment attorney to provide you with the necessary information is, of course, the best way to accomplish this. But the industry also is blessed with a number of informative publications that provide webmasters with an abundance of legal information in articles and regular columns."

— Gregory A. Piccionelli, Piccionelli & Sarno

"Adult webmasters have the ability to influence millions of individuals who visit their sites on a daily basis, on a wide variety of issues. Webmasters should use this untapped power to protect their business interests by educating users on relevant social and political matters. The last two presidential elections were extremely close, as elections go, and some well-placed editorials or political messages could have influenced the result significantly. Many website users are unaware of the positions that many lawmakers and politicians hold with regard to adult entertainment. If they were told that their senator, governor or representative is on a campaign to make sure users can no longer visit a certain type of website, support may dwindle for that elected official.

Many voters will cast their vote based on a single issue such as taxes, abortion or terrorism. However, when the truth is told about the censorial views held by many politicians currently in power, minds can be changed. Freedom of speech is a powerful rallying point for this industry.

On another point, our opponents always seek to make the debate about protecting children and child exploitation. We need to take back control over this debate and recast it as what it is: a battle against government censorship. Adult webmasters already hold the most valuable tool available in the political process; i.e. the attention of John Q. Public. It doesn't matter how you got his attention — it should be used to your advantage.

Obviously adult sites should not be turned into political advertisements. But some subtle hints about where certain politicians stand, perhaps mixed with humor or even some eroticism, would go a long way toward reaching potential voters who might otherwise tune out of the political process altogether. As I've been saying for more than a decade: Adult webmasters already hold the power to change the world in their hands, they just need to recognize it and begin to use it."

— Lawrence G. Walters, Weston, Garrou & DeWitt

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