A new state law in North Carolina, purportedly aimed at combating sexual exploitation, has significant implications for platforms and performers.
North Carolina House Bill 805 was enacted July 29, after the state legislature overrode Governor Josh Stein’s veto. The provisions that relate to the adult industry, imposing requirements for age verification, consent and content removal, are scheduled to become effective Dec. 1. Platforms have until then to update their policies and systems to comply with the new regulations.
With the threat of severe legal and financial penalties, platforms will likely feel compelled to remove the content first and verify later, even if the request is suspicious.
Exceeding Federal Law
While HB 805 has some similarities to the federal law 18 USC § 2257, its requirements go significantly further, creating a more stringent legal landscape for the adult industry in North Carolina.
Most people in the adult industry are familiar with 2257 regulations, which were enacted to combat child pornography and require producers of sexually explicit content to maintain records proving the age of all performers. These records must include the performer’s name and age, verified by a government-issued identification document, and producers must affix a statement to the content indicating where these records are located.
HB 805 expands upon these requirements in several critical ways. Moving beyond a simple age verification and record-keeping mandate, it introduces a level of specificity not found in the federal statute, and gives performers sweeping new rights.
- Expanded consent requirements: HB 805 requires platforms to obtain written consent not just for a performer’s participation, but for each individual sexual act depicted, and for the subsequent distribution of the content. This separate, detailed consent must be documented on a state-approved form, and consent for one act cannot be considered consent for another.
- Performer right to removal: HB 805 also establishes a “right to removal,” empowering performers to require the removal of content in which they appear at any time, for any reason, regardless of prior consent. Once such a request is made, the platform is legally obligated to remove the content within 72 hours and to block it, and any altered versions, from being reuploaded.
- Broader scope and penalties: While the federal law focuses on a producer’s responsibility to maintain records, with potential criminal charges for noncompliance, HB 805 extends these obligations to “online entity operators” and establishes both criminal and civil penalties. Operators face civil fines of up to $10,000 per day, per image, for noncompliance. Performers who are harmed by a violation can also sue for actual damages or up to $10,000 per day, per image.
Potential for Abuse
The “right to removal” creates a new avenue for potential abuse by nefarious individuals and organizations. The law’s strict 72-hour takedown window, coupled with significant penalties for noncompliance, places a heavy burden on platforms to act quickly, whether or not they have been able to investigate fully the validity of a specific takedown request.
This creates a perfect environment for exploitation in a number of ways.
- Fraudulent takedown requests: Ex-partners, stalkers or individuals with a personal vendetta against a performer could attempt to impersonate them and submit a fraudulent takedown request. With the threat of severe legal and financial penalties, platforms will likely feel compelled to remove the content first and verify later, even if the request is suspicious. This could lead to a performer’s content being taken down against their will, disrupting their livelihood.
- Weaponization by mass takedown services: Competitors or malicious actors could hire commercial takedown services to file mass, unsubstantiated takedown requests against a rival platform or performer. The sheer volume of such requests could create an unmanageable administrative and legal nightmare for the targeted platform, potentially forcing them to remove many posts to avoid costly fines, even if the requests are groundless.
- Extortion: The threat of a mass takedown request could also be used as a tool for extortion. Knowing the law puts platforms in a vulnerable legal position, a service or individual could demand payment from a platform or performer, by threatening to initiate a campaign of fraudulent takedown requests.
The challenge for platforms will be to develop robust systems to authenticate takedown requests without violating the law’s strict deadlines, while the risk for performers is that a law supposedly intended to protect them could, paradoxically, make them more vulnerable.
A Jurisdictional Minefield: Out-of-State Performers and Platforms
One significant unresolved question surrounding HB 805 is the extent of its jurisdictional reach. As a North Carolina state law, it is unclear how it can be enforced against performers and platforms with no physical presence in the state. This ambiguity creates a legal minefield for anyone in the adult industry who operates across state lines.
The law’s language does not explicitly define how it applies to out-of-state entities, leaving several key questions unanswered:
- Does the law apply to content created by an out-of-state performer? A performer living in California, for instance, who uploads content to a platform, may not be aware of, or subject to, North Carolina’s specific requirements. This could create a legal conflict if their content is made available to residents of North Carolina.
- Does the law apply to platforms located outside of North Carolina? A platform that is based in another U.S. state or elsewhere in the world, but serves North Carolina residents, could theoretically be subject to the law. This would put them in the difficult position of having to comply with a patchwork of state-level regulations from every jurisdiction where their content is accessed, or face legal action.
- What constitutes a sufficient connection to North Carolina? Legal principles of jurisdiction generally require a defendant to have “minimum contacts” with a state for its laws to apply. It is unclear whether merely making content accessible to a North Carolina resident on the internet is enough to establish such a connection, especially for performers and platforms that are not otherwise doing business in the state.
This lack of clarity on jurisdiction creates a major legal risk for the entire industry. For platforms, the safest — but most burdensome — course of action would be to comply with the most stringent possible interpretation of the law, or else geoblock North Carolina residents entirely.
Potential Constitutional Challenges
Given its broad scope and the nature of its provisions, HB 805 is highly susceptible to constitutional challenges. For instance, the law’s expansive reach could face challenges under the Dormant Commerce Clause, which prohibits states from passing legislation that discriminates against or unduly burdens interstate commerce. By imposing strict, North Carolina-specific regulations on platforms that operate nationally and internationally, HB 805 could be seen as creating a significant and unconstitutional burden on the flow of commerce on the internet.
However, any such challenge will likely face headwinds due to the recent Supreme Court decision in Free Speech Coalition v. Paxton. In that landmark decision, the court upheld a Texas law requiring websites with sexually explicit content that is “obscene to minors” to verify the age of their visitors. The ruling gives states far more leeway to enact and enforce laws that regulate adult content. While opponents of HB 805 could still argue that the law’s specific requirements, such as the granular consent forms and the “right to removal” provisions, are more burdensome than the Texas law and do not survive even the lesser level of scrutiny the Supreme Court deemed applicable, the path to a successful challenge is now much more difficult.
Compliance for Performers and Platforms
The law creates a new set of challenges for both performers and platforms.
For platforms, the need to obtain separate, written consent for each act performed and for distribution is a major change to standard industry practices. The strict 72-hour window for performer-requested content removal, along with the requirement to prevent reuploading, will necessitate the development of new content management and moderation systems.
Performers will need to sign specific, North Carolina-approved consent forms for each project. However, the law also empowers performers by giving them the right to remove their content at any time, a provision that could significantly change power dynamics within the industry. This is particularly relevant for performers who may wish to leave the industry or whose circumstances change, as it provides a legal avenue to control their digital footprint.
In summation, North Carolina’s HB 805 has created significant new legal and operational requirements for the adult industry in that state. The law’s expanded scope and novel provisions extend far beyond federal record-keeping requirements, the “right to removal” provision introduces new vulnerabilities that could be exploited, and the law’s lack of clarity on jurisdictional reach creates a new layer of legal and operational risk for anyone in the online content space.
Platforms and performers should therefore be aware of, and prepare for, these changes, before the provisions impacting the industry take effect on Dec 1.
This article does not constitute legal advice and is provided for information purposes only.
Corey D. Silverstein is the managing and founding member of Silverstein Legal, which represents all areas of the adult industry. His clientele includes hosting companies, affiliate programs, content producers, processors, designers, developers, operators and more. He is licensed in numerous jurisdictions. Contact him via MyAdultAttorney.com, corey@silversteinlegal.com or 248-290-0655.
