What are the Legal Challenges Facing Adult Companies Today?
Nothing in this blog entry ought to be interpreted as legal counsel. However, we at Adult Business Consulting are aware of the full range of hazards related to operating in the adult entertainment sector. A significant portion of this blog article is based on our in-depth study, experience, and the assistance of our on-staff journalist, who has post-graduate training in public administration and policy. Additionally, we maintain tight relationships with many of the best legal professionals serving the adult sector.
Running an adult website or an organization that owns adult properties is unfortunately more difficult than it needs to be due to several legal and political issues. Right- and left-wing anti-porn campaigners who view this kind of business as destructive have revived a moral panic about the position of the adult entertainment industry, particularly in the United States. Although our sector is far from flawless, it is one of the most profitable niche entertainment industries in the world. Not to add that developments in the internet have been prefigured by adult entertainment.
While not the most attractive industry in terms of optics, it is nonetheless a regulated and professional group of businesses that consider business ethics, social responsibility, free expression, and culture. This blog article explores some of the legal difficulties adult businesses face.
What Are Some of the Legal Issues Facing the Adult Industry?
As was previously indicated, businesses in the adult sector deal with several legal difficulties that may affect how they conduct business and carry out their activities. Starting with the obvious, 18 U.S. Code 2257 (2257) record keeping is the legal requirement that all companies that create and distribute pornographic content must meet.
A Reminder About Compliance with 2257
Another recent blog article we produced concerned 2257 compliance. However, it is necessary to emphasize how important this regulation is to our readers, particularly new business owners considering buying a property from us. All creators of pornographic, nudist, and sexually explicit content are required by federal criminal law and the U.S. Department of Justice to maintain records under Section 2257. The maintenance of records mandated by Section 2257 includes the necessary age, identification, and performance consent.
A federal Justice Department official may at any time request access to all records, which are kept by a custodian of records (usually a chief compliance officer or general counsel) and should be kept for processing and audit. For security reasons, all studios, original content-producing porn sites, photographers, and porn producers (among others) are required to keep all proofs of identification and age.
Trends in Civil Litigation
Lawyers may be trying to capitalize on the moral outrage surrounding porn by using a tort liability framework to make claims of harm in one way or another, according to trends in litigation and legislation. For instance, several state legislatures have passed legislation that makes it possible to hold adult entertainment firms liable for alleged civil harm.
According to XBIZ, the conservative governor of Louisiana, John Bel Edwards, enacted House Bill 142, which establishes legal liability for “sex addiction” and “online pornography.” According to House Bill 142, “civil remedies for parents of minors exposed to online pornography or other explicit material” are offered “if websites do not have reasonable [age] verification procedures in place” to restrict access for minors.
Clashing State and Federal Laws
These kinds of laws have been proposed in other states, but due to their arbitrary nature, most of these initiatives have failed. Just a few states, including Louisiana, have these rules, which results in another patchwork of inconsistent regulations when it comes to perceived online injuries claimed by parents of minors. Given this situation, state laws would be superseded by Section 230 of the Communications Decency Act of 1996.
This is because federal law has precedence, and Section 230 itself upholds the liability safe harbor for most digital platforms. According to this regulation, web platforms are theoretically protected from liability arising from content that third parties publish to adult websites. Due to the conflict between federal and state legislation, businesses will be subject to unnecessary obligations and hazards.
FOSTA-SESTA
FOSTA-SESTA is just another legal obstacle for businesses in the adult entertainment sector. Recently, we wrote on Section 230 and how it relates to the contentious anti-trafficking statute.
In that blog article, we highlight how FOSTA-SESTA undermines Section 230 protections and has, in fact, done more harm than good based on the number of people it has successfully prosecuted and utilized as leverage against. Few convictions have been reported under the law, according to the Department of Justice, and the FOSTA-SESTA enforcement has shown to be incredibly unequal.
The Backpage.com trial is one example. The Backpage case is beset by prejudice, outside and internal interference, and claimed prosecutorial incompetence in an Arizona federal district court that is well-known for its conservatism. Even though the proprietors of Backpage.com maintain their innocence in a case accusing them of taking part in pervasive and extensive human trafficking, the prosecution has done very little to show that they were involved in such crimes beyond merely operating the company. For those who need a refresher, Backpage.com was a Craigslist-like classified website that was quite popular with sex workers who merely advertised their services online.
FOSTA-SESTA has been utilized to further charge businesses in the adult entertainment sector with crimes they didn’t commit. FOSTA-SESTA is a result of the activism of Republican President Donald Trump and his far-right and socially conservative allies, as well as the lobbying and advocacy of numerous anti-porn organizations, such as NCOSE. Despite being passed into law, there is strong and mounting evidence that FOSTA-SESTA has hurt sex workers’ ability to advertise and communicate via the generally secure internet, in addition to restricting free speech online. FOSTA-SESTA is still in effect now. But there is a congressional proposal that would order the federal government to research the effects of FOSTA-SESTA from the perspectives of sociology, economics, and criminal justice. Unfortunately, this idea has not yet been taken up.
Intellectual Property
The adult entertainment sector continues to face significant legal challenges related to intellectual property. The staff at Adult Business Consulting has written about content piracy and IP rights. However, this is a very real problem. The Digital Millennium Copyright Act is a crucial piece of legislation managing intellectual property protection in the adult sector. We have already written about DMCA and IP, so we’ll just reiterate it here. DMCA is used to combat the piracy of adult content. DMCA is a mitigation tool used by all of the major entertainment sectors to safeguard their proprietary content.
Should I Retain a Lawyer?
The list of legal challenges the adult entertainment sector faces is endless. But you probably want to know: Should I hire a lawyer for my business? To answer briefly, yes you should. The owners and operators of pornographic websites can benefit greatly from the expertise of a lawyer who focuses on digital free expression, intellectual property, and criminal defense. The top attorneys in the adult industry are available to help.
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Adult Business Consulting thanks you for reading this blog post. Please get in touch with us if you have any questions.