HB441INTRODUCED
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RUWWNY-1
By Representatives Robbins, Kiel, Stadthagen
RFD: Judiciary
First Read: 09-May-23
2023 Regular Session
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6 RUWWNY-1 05/04/2023 CMH (L) bm 2023-639
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SYNOPSIS:
This bill would provide legislative findings
regarding the public health crisis caused by
pornography.
This bill would prohibit the distribution of
material harmful to minors under 18 years of age.
This bill would require distributors of material
harmful to minors to take certain reasonable measures
to ensure their published material is not distributed
to minor children by use of age-verification
procedures.
This bill would require distributors of material
harmful to minors to pay a licensing fee to distribute
pornography in this state and would provide for the
distribution of the fee.
This bill would also provide penalties for
violations.
Section 111.05 of the Constitution of Alabama of
2022, prohibits a general law whose purpose or effect
would be to require a new or increased expenditure of
local funds from becoming effective with regard to a
local governmental entity without enactment by a 2/3
vote unless: it comes within one of a number of
specified exceptions; it is approved by the affected
entity; or the Legislature appropriates funds, or
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provides a local source of revenue, to the entity for
the purpose.
The purpose or effect of this bill would be to
require a new or increased expenditure of local funds
within the meaning of the amendment. However, the bill
does not require approval of a local governmental
entity or enactment by a 2/3 vote to become effective
because it comes within one of the specified exceptions
contained in the amendment.
A BILL
TO BE ENTITLED
AN ACT
Relating to consumer protection; to provide legislative
findings; to provide definitions; to provide prohibitions on
the online distribution of material harmful to minors; to
require a license for the distribution of material harmful to
minors; and to provide civil and criminal penalties for
violations; and in connection therewith would have as its
purpose or effect the requirement of a new or increased
expenditure of local funds within the meaning of Section
111.05 of the Constitution of Alabama of 2022.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. The Legislature finds and declares the
following:
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(1) The pervasive use of pornography is creating a
public health crisis.
(2) Pornography is contributing to the
hypersexualization of children and teens in our society.
(3) Due to advances in technology and the universal
availability of the Internet, young children are more easily
exposed to pornography than ever before, with the average age
of exposure now being only 11 to 12 years of age.
(4) Pornography treats people as objects and
commodities for the viewer's use.
(5) Pornography normalizes violence and abuse, often
depicts rape and abuse as being harmless fun, and increases
the demand for sex trafficking, prostitution, and child
pornography.
(6) Pornography is a public health crisis leading to a
broad spectrum of individual and public health impacts and
societal harms. This state has a compelling governmental
interest to take action, and this act serves as the most
narrowly tailored approach to prevent pornography exposure and
addiction to children and to educate individuals and families
concerning its very serious harms.
Section 2. As used in this act, the following terms
have the following meanings:
(1) COMMERCIAL ENTITY. The term includes corporations,
limited liability companies, partnerships, limited
partnerships, sole proprietorships, or other legally
recognized entities.
(2) DISTRIBUTE. To issue, sell, give, provide, deliver,
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transfer, circulate, or disseminate online.
(3) DIVISION. The Consumer Protection Division of the
Office of the Attorney General.
(4) HARMFUL TO MINORS. The term as defined under
Section 13A-12-200.1, Code of Alabama 1975.
(5) MINOR. An individual under 18 years of age.
(6) NEWS-GATHERING ORGANIZATION. Any of the following:
a. A newspaper, news publication, or news source,
printed or on an online platform, of current news and public
interest.
b. A radio broadcast station, television broadcast
station, or cable television operator.
(7) PUBLISH. To communicate or make information
available to another person on a publicly available Internet
website.
(8) REASONABLE AGE VERIFICATION METHODS. Verifying that
the individual seeking to access the material is 18 years of
age or older by requiring the person attempting to access the
material to comply with a commercial age verification system
that verifies age in one or more of the following ways:
a. Government-issued identification.
b. Any commercially reasonable method that relies on
public or private transactional data to verify the age of the
individual attempting to access the information is at least 18
years of age or older.
(9) SUBSTANTIAL PORTION. More than 33 1/3 percent of
total material on a website.
(10) TRANSACTIONAL DATA. A sequence of information that
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documents an exchange, agreement, or transfer between an
individual, commercial entity, or third party used for the
purpose of satisfying a request or event. The term includes,
but is not limited to, records from mortgage, education, and
employment entities.
Section 3. (a) Any commercial entity that knowingly and
intentionally publishes or distributes material harmful to a
minor on the Internet from a website that contains a
substantial portion of material harmful to minors shall be
held liable if the entity fails to perform reasonable age
verification methods to verify the age of individuals
attempting to access the material.
(b) A commercial entity that is found to have violated
this section shall be liable to an individual for damages
resulting from a minor accessing the material harmful to
minors, including court costs and reasonable attorney fees as
ordered by the court.
Section 4. (a) Any commercial entity or third party
that performs the required age verification shall not retain
any identifying information to the individual after access has
been granted to the material.
(b) A commercial entity that is found to have knowingly
retained identifying information of the individual, as
prohibited in subsection (a), shall be liable to the
individual for damages resulting from retaining the
identifying information, including court costs and reasonable
attorney fees as ordered by the court.
Section 5. Nothing in this act shall apply to a bona
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fide broadcast, website video, report, or event of a
news-gathering organization and shall not be construed to
affect the rights of any news-gathering organization.
Section 6. No Internet service provider, or its
affiliates or subsidiaries, search engine, or cloud service
provider shall be held to have violated this act solely for
providing access or connection to or from a website or other
information or content on the Internet or a facility, system,
or network not under that provider's control, including
transmission, downloading, intermediate storage, or access
software to the extent the provider is not responsible for the
creation of the content of the communication that constitutes
material harmful to minors.
Section 7. (a) A commercial entity shall not publish
online or allow access on a website to material that is
harmful to minors in this state only by satisfying both of the
following conditions:
(1) The person registers with the division and pays to
the division a one-time registration fee and an annual license
fee each year thereafter. The division, by rule, may establish
the required fees.
(2) The person certifies meeting the age verification
requirements of Section 3.
(b) Any fees collected under this section shall be
deposited as follows and shall be budgeted and allotted in
accordance with Sections 41-4-80 through 41-4-96, Code of
Alabama 1975, and Sections 41-19-1 through 41-19-12, Code of
Alabama 1975, but shall not be limited by the fiscal year
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appropriation cap:
(1) Fifty percent of fees collected shall be deposited
into the State General Fund to the credit of the Office of the
Attorney General.
(2) Fifty percent of fees collected shall be deposited
into the Special Mental Health Trust Fund in the State
Treasury.
(c) The Office of the Attorney General may adopt rules
to implement and administer this section.
Section 8. (a) Any person who engages in any act or
practices that violate Section 3 or 4 shall be liable for a
civil penalty of up to two thousand dollars ($2,000) for each
violation.
(b) The Office of the Attorney General may recover the
civil penalty by either of the following:
(1) Civil action against the person engaging in the
violative act or practice.
(2) Agreement and settlement of a civil action filed by
stipulation of terms by the person engaging in the violative
act or practice and the director of the division by authority
of the Attorney General, and by payment of any agreed upon
amount by the person against whom the claim was filed.
Section 9. (a) If the Attorney General has reason to
believe that a person has engaged in, or is engaging in, a
practice that violates this act, he or she may administer
oaths and affirmations, subpoena witnesses or matter, and
collect evidence. The subpoena shall inform the party served
of his or her rights under this subsection.
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(b) The Attorney General may apply for an emergency
injunction or other necessary relief to enjoin any violation
of Section 3 or Section 4 until the violation is cured.
Section 10. (a) In any civil action or investigation
involving a violation of this act, except as provided in
subsection (b), the Office of the Attorney General shall
receive reasonable attorney fees and costs from the
nonprevailing party.
(b) In any civil litigation initiated by the division
resulting in a judgment or administrative order, the court may
award to the prevailing party reasonable attorney fees and
costs if the court finds that there was a complete absence of
a justiciable issue of either law or fact raised by the losing
party or if the court finds bad faith on the part of the
losing party.
(c) The attorney for the prevailing party shall submit
a sworn affidavit of his or her time spent on the case and his
or her costs incurred.
Section 11. (a) An individual shall have a private
cause of action against a person who violates Section 3 if the
individual is a parent or guardian of a minor and, as a result
of the violation of Section 3, the minor accessed obscene
material or material harmful to minors.
(b) In addition to any other penalties or remedies
provided under law, the individual may recover compensatory
damages, actual costs, court costs, and attorney fees.
(c) Any violation of this act shall also be considered
a violation of the Deceptive Trade Practices Act, Chapter 19,
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Title 8, Code of Alabama 1975.
Section 12. Although this bill would have as its
purpose or effect the requirement of a new or increased
expenditure of local funds, the bill is excluded from further
requirements and application under Section 111.05 of the
Constitution of Alabama of 2022, because the bill defines a
new crime or amends the definition of an existing crime.
Section 13. This act shall become effective on the
first day of the third month following its passage and
approval by the Governor, or its otherwise becoming law.
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