Bill Summary – FastDemocracy

Enrolled Copy                                                                              H.B. 243
                              WARNING LABELS AMENDMENTS
                                        2020 GENERAL SESSION
                                             STATE OF UTAH
                                  Chief Sponsor: Brady Brammer
                                    Senate Sponsor: Todd Weiler
 Cosponsors:                            Jon Hawkins Lee B. Perry
 Cheryl K. Acton Dan N. Johnson Val K. Potter
 Carl R. Albrecht Marsha Judkins Travis M. Seegmiller
 Melissa G. Ballard Karianne Lisonbee Steve Waldrip
 Kay J. Christofferson Calvin R. Musselman
 Joel Ferry Derrin R. Owens Timothy D. Hawkes
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 LONG TITLE
 General Description:
           This bill creates a cause of action that may be brought against a person who distributes
 pornography without a visible warning.
 Highlighted Provisions:
           This bill:
           < allows the attorney general or a member of the public to bring an action against a
 person who distributes pornography without a visible warning or specific searchable
 text for a website;
           < requires an individual person to first notify the attorney general before bringing an
 action;
           < allows for a civil penalty of up to $2,500 for each violation;
           < requires that a portion of any recovery be provided to the Crime Victims
 Reparations Fund;
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         < provides a process for curing the violation and paying a reduced penalty; and
         < requires the Judicial Council to adjust the penalty every five years.
 Money Appropriated in this Bill:
         None
 Other Special Clauses:
         None
 Utah Code Sections Affected:
 AMENDS:
         78B-6-2103, as enacted by Laws of Utah 2017, Chapter 464
         78B-6-2104, as enacted by Laws of Utah 2017, Chapter 464
 ENACTS:
         78B-6-2105, Utah Code Annotated 1953
39
 Be it enacted by the Legislature of the state of Utah:
         Section 1. Section 78B-6-2103 is amended to read:
         78B-6-2103. Liability -- Safe harbor.
         (1) A person who is not exempt under Section 78B-6-2102, and who predominately
 distributes or otherwise predominately provides pornographic material to consumers is liable to
 a person if:
         (a) at the time the pornographic material is viewed by the person, the person is a minor;
 and
         (b) the pornographic material is the proximate cause for the person being harmed
 physically or psychologically, or by emotional or medical illnesses as a result of that
 pornographic material.
         (2) Nothing in this part affects any private right of action existing under other law,
 including contract.
         (3) Notwithstanding Subsection (1), a person who distributes or otherwise provides
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 pornographic material is not liable under this section if the person who distributes or otherwise
 provides pornographic material:
        (a) provides a warning that:
        (i) is conspicuous;
        (ii) appears before the pornographic material can be accessed; and
        (iii) consists of a good faith effort to warn persons accessing the pornographic material
 that the pornographic material may be harmful to minors; and
        (b) makes a good faith effort to verify the age of a person accessing the pornographic
 material.
        (4) Subsection (3) may not be interpreted as exempting a person from complying with
 Title 13, Chapter 39, Child Protection Registry.
        (5) (a) Notwithstanding Section 78B-6-2105, a person who is not exempt under
 Section 78B-6-2102, and who predominately distributes or otherwise predominately provides
 obscene material to consumers without a warning label or without the metadata described in
 Subsection 78B-6-2105(3)(b) is not liable if the person demonstrates reasonable efforts to
 determine the location of recipients of obscene material within the state and the placement of
 warning labels on material that enters the state. Reasonable efforts shall result in a compliance
 rate that exceeds 75% of the content believed to enter the state within the shorter of six months
 prior to any claim, or from May 12, 2020 to the time of the claim. Proof of reasonable efforts
 shall remove liability only for the type of compliance for which reasonable efforts have been
 proven.
        (b) The use of virtual private networks or similar technology by the consumer to hide
 the consumer's location may not be included in a compliance rate calculation.
        (6) Notwithstanding Section 78B-6-2105, a video game without a warning label is not
 liable if it has a rating of the Entertainment Software Rating Board or equivalent, as long as it
 also explicitly provides notice of the content as part of the rating.
        Section 2. Section 78B-6-2104 is amended to read:
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        78B-6-2104. Damages -- Class action.
        (1) If a court finds that a person [violates] is violating Section 78B-6-2103, the court
 may award the plaintiff:
        (a) actual damages; and
        (b) punitive damages, if it is proven that the person targeted minors.
        (2) A class action may be brought under this part in accordance with Utah Rules of
 Civil Procedure, Rule 23.
        Section 3. Section 78B-6-2105 is enacted to read:
        78B-6-2105. Civil action for enforcement -- Penalties.
        (1) A person who predominately distributes or otherwise predominately provides
 pornographic material to consumers with the intent to earn revenue or profit directly or
 indirectly from the distribution may not distribute any obscene material or performance as
 defined in Section 76-10-1203 without first giving a clear and reasonable warning of the
 harmful impact of exposing minors to the material or performance. The warning of the harm
 shall be prominently displayed in the following form:
                                        STATE OF UTAH WARNING
             Exposing minors to obscene material may damage or negatively impact minors.
        (2) (a) For print publications created after May 12, 2020, the warning in Subsection (1)
 shall be placed in clear, readable type on the cover of each publication which includes material
 as defined in Section 76-10-1201.
        (b) For digital publications:
        (i) the warning in Subsection (1) shall be displayed in searchable text format and for at
 least five seconds prior to the display of any video or each image which includes material as
 defined in Section 76-10-1201; or
        (ii) if the website complies with Subsection 78B-6-2103(3), it is not required to display
 the warning in Subsection (1) prior to each video or image contained on the website.
        (3) A person who violates this section shall be liable for a civil penalty not to exceed
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        Enrolled Copy                                                                              H.B. 243
 $2,500 per violation, plus filing fees and attorney fees, in addition to any other penalty
 established by law, and enjoined from further violations. The civil penalty may be assessed and
 recovered in a civil action brought in any court of competent jurisdiction. Each of the following
 violations shall create a separate liability per violation:
         (a) the sale or display of potentially harmful content without the warning required in
 Subsection (1), in accordance with Subsection (2); or
         (b) the absence of the following searchable text within the website's metadata -
 utahobscenitywarning.
         (4) The determination by a court as to whether a person is distributing material the
 state considers to be obscene material or performance as defined in Section 78B-6-1203 shall
 be proven by clear and convincing evidence. All other elements of proof shall be proven by a
 preponderance of the evidence.
         (5) The court, in ordering payment, shall specify each amount for the civil penalty,
 filing fees, and attorney fees.
         (6) In assessing the amount of a civil penalty for a violation of this chapter, the court
 shall consider all of the following:
         (a) the nature and extent of the violation;
         (b) the number and severity of the violations;
         (c) the economic effect of the penalty on the violator;
         (d) whether the violator took good faith measures to comply with this chapter and
 when those measures were taken;
         (e) the willfulness of the violator's misconduct;
         (f) the deterrent effect that the imposition of the penalty would have on both the
 violator and the regulated community as a whole; and
         (g) any other factor that the court determines justice requires.
         (7) Actions pursuant to this section may be brought by the attorney general's office in
 the name of the people of the state or by a private person in accordance with Subsection (8).
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         (8) A private person may bring an action in the public interest pursuant to this section
 if:
         (a) the person has served notice of an alleged violation of Section 78B-6-2103 on the
 alleged violator and the attorney general's office;
         (b) the attorney general's office has not provided a letter to the noticing party within 60
 days of receipt of the notice of an alleged violation indicating that:
         (i) an action is currently being pursued or will be pursued by the attorney general's
 office regarding the violation; or
         (ii) the attorney general believes that there is no merit to the action; and
         (c) the alleged violator has not responded to the notice of alleged violation or returned
 the proof of compliance form provided in Subsection (14).
         (9) If a lawsuit is commenced, the plaintiff may include additional violations in the
 claim that are discovered through the discovery process.
         (10) Notice of the alleged violation shall be executed by the attorney for the noticing
 party, or by the noticing party, if the noticing party is not represented by an attorney, and
 include a notice of alleged violation. The notice of alleged violation shall:
         (a) state that the person executing the notice believes that there is a violation; and
         (b) provide factual information sufficient to establish the basis for the alleged violation.
         (11) A person who serves a notice of alleged violation identified in Subsection (10)
 shall complete and provide to the alleged violator at the time the notice of alleged violation is
 served, a notice of special compliance procedure and proof of compliance form pursuant to
 Subsection (14). The person may file an action against the alleged violator, or recover from the
 alleged violator if:
         (a) the notice of alleged violation alleges that the alleged violator failed to provide a
 clear and reasonable warning as required under Subsection (1); and
         (b) within 14 days after receipt of the notice of alleged violation, the alleged violator
 has not:
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        Enrolled Copy                                                                             H.B. 243
         (i) corrected the alleged violation and all similar violations known to the alleged
 violator;
         (ii) agreed to pay a penalty for the alleged violation in the amount of $500 per
 violation; and
         (iii) notified, in writing, the noticing party that the violation has been corrected.
         (12) The written notice required in Subsection (11)(b)(iii) shall be the notice of special
 compliance procedure and proof of compliance form specified in Subsection (14). The alleged
 violator shall deliver the civil penalty to the noticing party within 30 days of receipt of the
 notice of alleged violation.
         (13) The attorney general shall review the notice of alleged violation and may confer
 with the noticing party. If the attorney general believes there is no merit to the action, the
 attorney general shall, within 45 days of receipt of the notice of alleged violation, provide a
 letter to the noticing party and the alleged violator stating that the attorney general believes
 there is no merit to the action.
         (14) The notice required to be provided to an alleged violator pursuant to Subsection
 (11) shall be presented as follows:
 Date:
 Name of Noticing Party or attorney for Noticing Party:
 Address:
 Phone number:
 SPECIAL COMPLIANCE PROCEDURE
 PROOF OF COMPLIANCE
 You are receiving this form because the Noticing Party listed above has alleged that you are in
 violation of Utah Code Section 78B-6-2103.
 The Noticing Party may bring legal proceedings against you for the alleged violation checked
 below if:
 (1) you have not actually taken the corrective steps that you have certified in this form;
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 (2) the Noticing Party has not received this form at the address shown above, accurately
 completed by you, postmarked within 14 days of your receiving this notice; and
 (3) the Noticing Party does not receive the required $500 penalty payment for each violation
 alleged from you at the address shown above postmarked within 30 days of your receiving this
 notice.
 PART 1: TO BE COMPLETED BY THE NOTICING PARTY OR ATTORNEY FOR THE
 NOTICING PARTY
 This notice of alleged violation is for failure to warn against an exposure to minors of materials
 considered harmful to minors. (provide complete description of violation, including when and
 where observed)
 Date:
 Name of Noticing Party or attorney for Noticing Party:
 Address:
 Phone number:
 PART 2: TO BE COMPLETED BY THE ALLEGED VIOLATOR OR AUTHORIZED
 REPRESENTATIVE
 Certification of Compliance
 Accurate completion of this form will demonstrate that you are now in compliance with Utah
 Code Section 78B-6-2103, for the alleged violation listed above. You must complete and
 submit the form below to the Noticing Party at the address shown above, postmarked within 14
 days of you receiving this notice.
 I hereby agree to pay, within 30 days of receipt of this notice, a penalty of $500 for each
 violation alleged to the Noticing Party only and certify that I have complied with by (check
 only one of the following):
 [ ] Posting a warning or warnings, and attaching a copy of that warning and a photograph
 accurately showing its placement on the print or digital publication.
 [ ] Eliminating the alleged exposure, and attaching a statement accurately describing how the
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        Enrolled Copy                                                                             H.B. 243
 alleged exposure has been eliminated.
 CERTIFICATION
 My statements on this form, and on any attachments to it, are true, complete, and correct to the
 best of my knowledge and belief and are made in good faith. I have carefully read the
 instructions to complete this form. I understand that if I make a false statement on this form, I
 may be subject to additional penalties under Utah Code Section 76-10-1206.
 Signature of alleged violator or authorized representative:
 Date:
 Name and title of signatory:
          (15) An alleged violator may satisfy the conditions set forth in Subsection (14) only
 one time for a specific violation.
          (16) Notwithstanding Subsection (14), the attorney general may file an action pursuant
 to Subsection (7) against an alleged violator. In any action, the amount of any civil penalty for
 a violation shall be reduced to reflect any payment made by the alleged violator to a private
 person in accordance with Subsection (14) for the same alleged violation.
          (17) Payments shall be made in accordance with this section.
          (a) A civil penalty ordered by the court shall be paid to the plaintiff as directed by the
 court.
          (b) A penalty paid in accordance with the special compliance procedure in Subsection
 (14) shall be made directly to the noticing party.
          (18) The Utah Office for Victims of Crime shall receive 50% of any penalty paid in
 accordance with this section. Funds received shall be deposited in the Crime Victim
 Reparations Fund created in Section 51-9-404. The penalty amount upon which the 50% is
 calculated may not include attorney fees or costs awarded by the court.
          (a) If the penalty is paid to a noticing party in accordance with Subsection (14), the
 noticing party shall remit the required amount along with a copy of the Special Compliance
 Procedu