HB164ENROLLED
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HB164
25GWSSK-3
By Representatives Robbins, DuBose, Faulkner
RFD: Judiciary
First Read: 14-Feb-24
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First Read: 14-Feb-24
Enrolled, An Act,
Relating to consumer protection; to provide
legislative findings; to provide definitions; to provide
age-verification requirements for the distribution of sexual
material harmful to minors through certain adult websites,
applications, and digital and virtual platforms; to prohibit
the retention of certain personally identifying information;
to assess an additional tax on the gross proceeds received
through sales, distribution, memberships, subscriptions, and
performances of material deemed harmful to minors; to require
notice to be given of the dangers of pornography under certain
conditions; to provide civil and criminal penalties for
violations; to amend Section 13A-6-240, Code of Alabama 1975,
as amended by Act 2023-464, 2023 Regular Session, to require
written consent to distribute a private image of another, with
exceptions; and to further provide for the enforcement
authority of the Attorney General; 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:
(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.
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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 minors and to educate individuals and families
concerning its very serious harms.
Section 2. As used in Sections 1 through 14 of this
act, the following terms have the following meanings:
(1) ADULT WEBSITE. A website, application, or digital
or virtual platform that uses the Internet to facilitate the
dissemination of pictures, videos, or other content, a
substantial portion of which is sexual material harmful to
minors.
(2) COMMERCIAL ENTITY. The term includes corporations,
limited liability companies, partnerships, limited
partnerships, sole proprietorships, or other legally
recognized entities.
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recognized entities.
(3) CONSUMER INTEREST DIVISION. The Consumer Interest
Division of the Office of the Attorney General.
(4) DISTRIBUTE. To issue, sell, give, provide, deliver,
transfer, circulate, or disseminate.
(5) HARMFUL TO MINORS. The term as defined under
Section 13A-12-200.1, Code of Alabama 1975.
(6) MINOR. An individual under 18 years of age.
(7) NEWS-GATHERING ORGANIZATION. Any of the following:
a. A newspaper, news publication, or other news source,
whether in printed or electronic format, of current news and
public interest.
b. A radio broadcast station, television broadcast
station, or cable television operator.
(8) PUBLISH. To communicate or make information
available to another person through an online platform.
(9) REASONABLE AGE-VERIFICATION METHOD. Any
commercially available software, application, program, or
methodology that, when enabled, provides reasonable assurances
that any individual accessing certain published material is 18
years of age or older.
(10) SUBSTANTIAL PORTION. More than 33 1/3 percent.
Section 3. (a) Any commercial entity that knowingly and
intentionally publishes or distributes sexual material harmful
to minors through an adult website shall use a reasonable
age-verification method to provide reasonable assurance that
individuals under 18 years of age cannot access the material
harmful to minors.
(b) Nothing in this section shall apply to a bona fide
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(b) Nothing in this section shall apply to a bona fide
news-gathering organization.
Section 4. (a) Any commercial entity or third party
that performs the required age-verification under Section 3
shall not retain any personally identifying information of the
individual after access has been granted to the sexual
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.
(c) Nothing in this section shall apply to a bona fide
news-gathering organization.
Section 5. No Internet service provider, or its
affiliates or subsidiaries, search engine, or cloud service
provider shall be held to have violated Sections 1 through 10
of this act or Section 13A-6-240, Code of Alabama 1975, 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 sexual material harmful to minors.
Section 6. (a) Any individual injured by a violation of
Section 3, Section 8, or Section 9 may bring a civil action in
circuit court against the commercial entity to recover actual
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circuit court against the commercial entity to recover actual
and punitive damages, court costs, and reasonable attorney's
fees. If the injured individual is a minor, then a parent or
legal guardian may bring action on his or her behalf.
(b) Upon commencement of any action brought under this
section, the plaintiff shall mail a copy of the complaint or
other initial pleading to the Attorney General and upon entry
of any judgment or decree in the action, shall mail a copy of
the judgment or decree to the Attorney General.
(c) Upon a finding by the court that a violation of
Section 3, Section 8, or Section 9 has occurred, the Attorney
General, upon petition to the court, may recover a civil
penalty up to ten thousand dollars ($10,000) per violation.
Section 7. In addition to any other penalty provided by
law, any violation of Section 3, Section 8, or Section 9 shall
be considered a violation of the Deceptive Trade Practices Act
under Chapter 19 of Title 8, Code of Alabama 1975.
Section 8. (a) Any commercial entity, before knowingly
and intentionally publishing or distributing a private image,
as defined under Section 13A-6-240, Code of Alabama 1975,
through an adult website, shall obtain written consent to
publish or distribute the private image from every individual
depicted in the private image.
(b) The written consent required by this section shall
be signed by the individual depicted and sworn to by a notary
public. The commercial entity shall maintain records of the
written consent for not less than five calendar years
following the publication or distribution of the private
image.
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image.
Section 9. (a) A commercial entity required to use
reasonable age verification methods under Section 3 shall do
all of the following:
(1) Display the following notices on the home or
landing page of the adult website on which sexual material
harmful to minors is published or distributed and all
advertisements thereof:
"ALABAMA HEALTH AND HUMAN SERVICES WARNING: Pornography
is potentially biologically addictive, is proven to harm human
brain development, desensitizes brain reward circuits,
increases conditioned responses, and weakens brain function."
"ALABAMA HEALTH AND HUMAN SERVICES WARNING: Exposure to
this content is associated with low self-esteem and body
image, eating disorders, impaired brain development, and other
emotional and mental illnesses."
"ALABAMA HEALTH AND HUMAN SERVICES WARNING: Pornography
increases the demand for prostitution, child exploitation, and
child pornography."
(2) Display the following notice on every page of the
adult website:
"U.S. SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES
ADMINISTRATION HELPLINE:
"1-800-662-HELP (4357)
"THIS HELPLINE IS A FREE, CONFIDENTIAL INFORMATION
SERVICE (IN ENGLISH OR SPANISH) OPEN 24 HOURS PER DAY, FOR
INDIVIDUALS AND FAMILY MEMBERS FACING MENTAL HEALTH OR
SUBSTANCE USE DISORDERS. THE SERVICE PROVIDES REFERRAL TO
LOCAL TREATMENT FACILITIES, SUPPORT GROUPS, AND
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LOCAL TREATMENT FACILITIES, SUPPORT GROUPS, AND
COMMUNITY-BASED ORGANIZATIONS."
(b) A violation of this section shall be punished as
provided under Section 6 or Section 7.
(c) Each notice required under this section shall be
displayed in 14 point font or greater and in a conspicuous
manner.
Section 10. (a) In addition to all other taxes of
every kind, there is levied and shall be collected a tax at
the rate of 10 percent upon the gross receipts of any
commercial entity operating an adult website for all sales,
distributions, memberships, subscriptions, performances, and
all other content amounting to material harmful to minors that
is produced, sold, filmed, generated, or otherwise based in
this state.
(b) The tax levied by this section shall be collected
by the State Department of Revenue at the same time and in the
same manner as state sales and use taxes are collected. On or
prior to the date the tax is due, each person subject to the
tax shall file with the department a report in the form
prescribed by the department.
(c) Any taxes collected under this section 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, and shall be
distributed to the Department of Mental Health for the care
and treatment of individuals with behavioral health needs,
including prevention, treatment, and recovery services and
supports.
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supports.
Section 11. Section 13A-6-240, Code of Alabama 1975, as
amended by Act 2023-464, 2023 Regular Session, is amended to
read as follows:
"ยง13A-6-240
(a) A person commits the crime of distributing a
private image if he or she knowingly posts, emails, texts,
transmits, or otherwise distributes a private image when the
depicted person individual has not consented in writing to the
transmission and the depicted person individual had a
reasonable expectation of privacy against transmission of the
private image.
(b) For purposes of this section, "private image" means
a photograph, digital image, video, film, or other recording
of a person an individual who is identifiable from the
recording itself or from the circumstances of its transmission
and who is engaged in any act of
sadomasochisticsado-masochistic abuse, sexual intercourse,
sexual excitement, masturbation, breast nudity, as defined in
Section 13A-12-190, genital nudity, or other sexual conduct ,
as those terms are defined under Section 13A-12-190 . The term
includes a recording that has been edited, altered, or
otherwise manipulated from its original form.
(c)(1) For purposes of this section, a "reasonable
expectation of privacy" includes, but is not limited to,
either of the following circumstances:
a. The person individual depicted in the private image
created it or consented to its creation believing that it
would remain confidential.
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would remain confidential.
b. The sexual conduct depicted in the image was
involuntary.
(2) There is no reasonable expectation of privacy
against the transmission of a private image made voluntarily
in a public setting or made with prior written consent in a
commercial setting.
(d) It is a defense to distributing a private image if
the distribution of the private image was made in the public
interest, including, but not limited to, the reporting of
unlawful conduct; the lawful and common practices of law
enforcement, legal proceedings, or medical treatment; or a
bona fide attempt to prevent further distribution of the
private image.
(e) For the purposes of determining jurisdiction, the
crime of distributing a private image shall be considered to
be committed in any county in which any part of the crime took
place, in the county of residence of the victim or defendant,
or any county where the image is received.
(f) A violation of this section is a Class A
misdemeanor. A subsequent adjudication or conviction under
this section is a Class C felony.
(g) If the Attorney General has reason to believe a
person has engaged in, or is engaging in, a violation of this
section, the Attorney General may petition for an emergency
injunction or other necessary relief to enjoin the violation,
and may order the person to provide a copy of the written
consent required by this section.
(h) No Internet service provider, or its affiliates or
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(h) No Internet service provider, or its affiliates or
subsidiaries, search engine, or cloud service provider shall
be held to have violated this section 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 a private
image."
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. The Department of Revenue may adopt rules
for the implementation and administration of Sections 1
through 10 of this act.
Section 14. Section 10 of this act shall become
effective September 1, 2025; the remaining sections of this
act shall become effective on October 1, 2024.
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act shall become effective on October 1, 2024.
________________________________________________
Speaker of the House of Representatives
________________________________________________
President and Presiding Officer of the Senate
House of Representatives
I hereby certify that the within Act originated in and
was passed by the House 29-Feb-24, as amended.
John Treadwell
Clerk
Senate 09-Apr-24 Amended and Passed
House 11-Apr-24 Concurred in Senate
Amendment
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