SACRAMENTO, Cal. — A bill to impose tighter compliance standards for user-generated content (UGC) on adult websites has been approved by the California state legislature and now awaits the governor’s signature.
Should AB 1705 become law, it will establish a number of new requirements for websites that permit users to upload sexually explicit content. Site operators would have to require users to submit an email address, along with a statement certifying — under penalty of perjury — that each individual depicted in the content was not a minor at the time the content was created, consented to being depicted in the content, and consented to the content being uploaded to the website. Site operators would also have to verify each user’s email address before permitting uploading, and retain the statement and information for at least seven years.
Sites and uploaders would be subject to civil actions by depicted individuals for damages of up to $75,000 per violation, along with punitive damages and legal fees. Public prosecutors would also be able to bring civil actions, and seek penalties of $25,000 per violation along with other relief and fees.
If adult content does not conform to the new regulations, then each day such content is displayed would constitute a separate violation of the law.
2257 vs. AB 1705
Industry attorney Corey Silverstein told XBIZ that AB 1705 is not simply a “California version” of 2257 regulations, as it imposes significant new obligations for adult sites that permit users or creators to upload content.
“There is certainly some overlap with the compliance infrastructure that responsible adult operators already maintain under 18 U.S.C. § 2257 and existing consent/recordkeeping practices, but AB 1705 goes considerably further in several respects,” Silverstein cautioned. “Section 2257 is principally an age-verification and recordkeeping regime applicable to producers of sexually explicit material. AB 1705 creates an additional consent-and-upload certification regime and places affirmative obligations directly on operators of websites accepting sexually explicit user-generated content.”
Attorney Lawrence Walters told XBIZ that AB 1705 would impose a “distinct and significant” new set of obligations that go well beyond 2257, and that responsible platforms should not assume that the statute merely restates what 2257 already demands.
“AB 1705 is a platform-liability and pre-upload certification statute aimed at user-generated material, including questions of consent to distribution that 2257 does not address,” Walters explained. “Those are different issues, and they generate different operational, legal, and First Amendment concerns.”
For tube sites, clip platforms and other UGC-heavy operators, Walters said, the practical effect would be “a new pre-publication compliance layer that must be designed, staffed, documented and defended.”
Silverstein similarly foresees some potential work ahead for site operators doing business in California, should the bill become law.
“They will need to examine their upload workflows, performer consent documentation, uploader certifications, email verification, record-retention procedures and content moderation practices,” he said. “For some established platforms, this may mean modifying existing compliance systems. For smaller or less sophisticated user-generated-content sites, the burden could be considerably greater.”
What About Previously Uploaded Content?
As for whether the proposed law would apply retroactively to content already uploaded and being displayed, Silverstein noted that while the bill does not clearly require websites to go back and obtain a new AB 1705 certification for every piece of content uploaded before the law took effect, the broader obligations imposed on website operators are not limited to newly uploaded content. Previously uploaded content would still appear to be subject to the operator’s ongoing duty of “ordinary care” and “reasonable diligence” in making sure content does not violate the law.
“There is some ambiguity as to exactly what steps an operator must take with respect to legacy content, and I expect that issue could eventually become the subject of litigation or regulatory interpretation,” Silverstein said. “But I would not read the bill as creating a blanket exemption for content simply because it was uploaded before the law took effect, and I would not advise operators to assume that their existing content libraries are grandfathered.”
Walters sees the bill as likely to apply differently to existing content, as opposed to content uploaded after the effective date of Jan. 1, 2027. While noting that the pre-upload certification statement and verified email provisions cannot logically be required for uploads occurring before the law becomes operative, he concurred with Silverstein that the duty to ensure that content on a site does not violate the law has no cutoff date.
“The certification and email-verification rules do not appear to reach backward,” Walters said. “However, leaving previously uploaded files displayed after Jan. 1, 2027 appears to be within the display duty. There is no safe harbor for legacy catalogs, no ‘notice-and-takedown only’ defense written into the bill, and no phase-in for existing libraries. Combined with the daily-violation rule, the enrolled text is written to reach already-published material that remains on the platform after the law takes effect.”
The bill is now on the desk of Gov. Gavin Newsom, who has until Sept. 30 to sign or veto the legislation. Should he do neither, the bill will automatically become law.
