Continuing from Part 1, this article will briefly analyze some of the interesting and occasionally complex legal issues for the aspiring online escort agency Webmaster:
Commercial Speech & the 1st Amendment
Did you ever wonder how High Times® magazine can get away with talking about the cultivation and use of illegal drugs without running afoul of the law? The answer is found in the First Amendment.
Under Free Speech principles, citizens have the right to discuss, and write about, activities which may themselves be illegal. In other words, the government’s ability to regulate conduct is not coextensive with its ability to regulate speech relating to such conduct. In the context of advertising activities that might be illegal, the United States Supreme Court has held that the First Amendment protects commercial speech about a product or service that is within the government’s power to otherwise completely ban, such as gambling activities. Thus, while gambling may itself be illegal, advertising that activity cannot be completely banned.
In the specific case of advertising online escort agencies, the First Amendment plays a significant role. Theoretically, the advertisers are all licensed escorts, agencies or businesses, conducting presumably legitimate escort activities. Therefore, under the appropriate test for determining the validity of any potential regulation of commercial speech, the government would have difficulty completely banning truthful advertising relating to such activities. There is some precedent for criminalizing other communicative activities such as solicitation of murder, extortion or assignation of prostitution, for that matter. However, the typical online escort directory involves a simple sale of advertising space and not actual involvement in arranging the meetings between customer and service provider. The traditional advertising relationship enjoys commercial speech protection, generally. While the government is currently flirting with the argument that advertising alleged illegal activity, such as online gambling, constitutes “aiding and abetting” illegal activity; there is little, if any, support found in legal precedent for the argument that advertising itself can be sufficient to impose criminal liability.
The Legal Issues
By way of summary, the following legal issues are some of the more important that should be addressed and evaluated in connection with the creation of an escort directory website:
1. Escort Age Verification – It is important to confirm that all models depicted on the website, especially those depicted in a sexually-oriented manner or nude, were over the age of eighteen when the images were created, and have executed proper age verification records as required by Title 18, U.S.C. § 2257.
2. Copyright/Publicity Issues – A method must be implemented allowing the online escort directory to obtain a release of the intellectual property and publicity rights necessary to post images and/or text relating to the individual escorts and/or agencies. These details are often ignored, and can result in significant liability if images are used without supporting rights transfers.
3. User Age Verification – As with any adult-oriented content, some method of age verification must be implemented to confirm that users or members of this website are over the age of eighteen. Escort customers must also be adults under most local adult entertainment codes, and thus the issue of facilitating a meeting between an adult escort and a minor may arise in the absence of valid user age verification, such as that described on www.BirthDateVerifier.com.
4. User Terms & Conditions – All disclaimer, warranties and customer service terms should be included in a custom drafted set of Terms & Conditions for an online escort directory.
6. DMCA Compliance – Since the website will presumably be using content provided by others, some form of Notice & Takedown Procedure and/or Designation of Agent to Receive Notices of Claimed Infringement should be considered. One copyright infringement claim can destroy a small business.
7. Spam Policy – In light of the recently-enacted CAN-SPAM Act, it is essential to implement some sort of strict policy relating to the use of unsolicited email to promote the escort directory.
8. Copyright Registration – Once the directory is created, its graphics, images and text should be registered with the United States Copyright Office, to help protect copyrights to the fullest extent. Timing is important on this issue.
9. Avoiding criminal exposure – This is certainly the most complex area to address, and involves a variety of factors, such as proper use of disclaimers, image content restrictions, escort descriptions, linking policy, the terms of the Advertising Agreement, and the overall look and feel of the site. The Advertising Agreement will likely require any escort agencies to have in place a set of rules and regulations governing escort conduct to prohibit any illegal activity.
As always, the devil is in the details, and it is therefore critical to obtain a competent attorney’s review of the entire website, along with the Advertising Agreement between the directory website and the escorts and/or agencies. Some financial relationships are more dangerous than others, from a liability standpoint. A healthy set of User Terms & Conditions can also help limit legal liability in connection with these business models.
The growing popularity of online escort directories has not gone unnoticed by law enforcement officers, who have successfully intimidated other traditional escort advertisers out of the business. However, by implementing some simple protective measures, and paying attention to the legal details, potential exposure can be minimized.
As with all areas of developing Internet law, legal precedent is far from being set. By taking a few common sense precautions, risks can be reduced to a more acceptable level.
Lawrence G. Walters, Esq., is a partner in the national law firm of Weston Garrou & DeWitt, with offices in Orlando, Los Angeles, and San Diego. Mr. Walters represents clients involved in all aspects of adult media. Nothing in this article constitutes legal advice. Please contact your personal attorney with specific legal questions. Mr. Walters can be reached at Larry@LawrenceWalters.com, through his website: www.FirstAmendment.com or via AOL Screen Name: “Webattorney.”