By: Paxton, et al. S.B. No. 2021
(Schatzline, Ordaz, Schaefer, A. Johnson of Harris, et al.)
A BILL TO BE ENTITLED
AN ACT
relating to requirements for certain Internet websites containing
sexual material harmful to minors; providing a civil penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Chapter 120, Business & Commerce
Code, is amended to read as follows:
CHAPTER 120. SOCIAL MEDIA PLATFORMS AND INTERNET WEBSITES
SECTION 2. Chapter 120, Business & Commerce Code, is
amended by adding Subchapter E to read as follows:
SUBCHAPTER E. SEXUAL MATERIAL HARMFUL TO MINORS
Sec. 120.201. DEFINITIONS. In this subchapter:
(1) "Commercial entity" includes a corporation,
limited liability company, partnership, limited partnership, sole
proprietorship, or other legally recognized business entity.
(2) "Distribute" means to issue, sell, give, provide,
deliver, transfer, transmute, circulate, or disseminate by any
means.
(3) "Minor" means an individual younger than 18 years
of age.
(4) "News-gathering organization" includes:
(A) an employee of a newspaper, news publication,
or news source, printed or on an online or mobile platform, of
current news and public interest, who is acting within the course
and scope of that employment and can provide documentation of that
employment with the newspaper, news publication, or news source;
and
(B) an employee of a radio broadcast station,
television broadcast station, cable television operator, or wire
service who is acting within the course and scope of that employment
and can provide documentation of that employment.
(5) "Publish" means to communicate or make information
available to another person or entity on a publicly available
Internet website.
(6) "Sexual material harmful to minors" includes any
material that:
(A) the average person, applying contemporary
community standards, would find, taking the material as a whole and
with respect to minors, is designed to appeal to or pander to the
prurient interest;
(B) in a manner patently offensive with respect
to minors, exploits, is devoted to, or principally consists of
descriptions of actual, simulated, or animated display or depiction
of:
(i) a person's pubic hair, anus, or genitals
or the nipple of the female breast;
(ii) touching, caressing, or fondling of
nipples, breasts, buttocks, anuses, or genitals; or
(iii) sexual intercourse, masturbation,
sodomy, bestiality, oral copulation, flagellation, excretory
functions, exhibitions, or any other sexual act; and
(C) taken as a whole, lacks serious literary,
artistic, political, or scientific value for minors.
(7) "Transactional data" means a sequence of
information that 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
records from mortgage, education, and employment entities.
Sec. 120.202. PUBLICATION OF MATERIAL HARMFUL TO MINORS.
(a) A commercial entity that knowingly and intentionally publishes
or distributes material on an Internet website, including a social
media platform, more than one-third of which is sexual material
harmful to minors, shall use reasonable age verification methods as
described by Section 120.203 to verify that an individual
attempting to access the material is 18 years of age or older.
(b) A commercial entity that performs the age verification
required by Subsection (a) or a third party that performs the age
verification required by Subsection (a) may not retain any
identifying information of the individual after access has been
granted to the material.
(c) A commercial entity that knowingly and intentionally
publishes or distributes material on an Internet website that is
found to have violated this section is liable to the parent or
guardian of the minor for damages resulting from a minor's access to
the material, including court costs and reasonable attorney's fees
as ordered by the court.
(d) A commercial entity that knowingly and intentionally
publishes or distributes material on an Internet website or a third
party that performs the age verification required by Subsection (a)
that is found to have knowingly retained identifying information of
an individual after access has been granted to the individual is
liable to the individual for damages resulting from retaining the
identifying information, including court costs and reasonable
attorney's fees as ordered by the court.
Sec. 120.203. REASONABLE AGE VERIFICATION METHODS. (a) In
this section, "digital identification" means information stored on
a digital network that may be accessed by a commercial entity and
that serves as proof of the identity of an individual.
(b) A commercial entity that knowingly and intentionally
publishes or distributes material on an Internet website or a third
party that performs age verification under this subchapter shall
require an individual to:
(1) provide digital identification; or
(2) comply with a commercial age verification system
that verifies age using:
(A) government-issued identification; or
(B) a commercially reasonable method that relies
on public or private transactional data to verify the age of an
individual.
Sec. 120.204. SEXUAL MATERIALS HEALTH WARNINGS. A
commercial entity required to use reasonable age verification
methods under Section 120.202(a) shall:
(1) display the following notices on the landing page
of the Internet website and all advertisements for the Internet
website in 14-point font or larger:
"TEXAS 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."
"TEXAS 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."
"TEXAS HEALTH AND HUMAN SERVICES WARNING: Pornography
increases the demand for prostitution, child exploitation, and
child pornography."; and
(2) display the following notice at the bottom of
every page of the Internet website in 14-point font or larger:
"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 COMMUNITY-BASED ORGANIZATIONS."
Sec. 120.205. ENFORCEMENT BY ATTORNEY GENERAL; CIVIL
PENALTY. (a) A commercial entity who violates this subchapter is
liable to this state for a civil penalty in an amount not to exceed
$30,000 for each violation.
(b) The attorney general may bring an action in the name of
the state to recover a civil penalty under this section. The
attorney general may recover attorney's fees and costs incurred in
bringing an action under this section.
(c) The action may be brought in a district court in:
(1) Travis County; or
(2) a county in which any part of the violation or
threatened violation occurs.
(d) The attorney general shall deposit a civil penalty
collected under this section in the state treasury to the credit of
the general revenue fund.
Sec. 120.206. CIVIL ACTION AGAINST COMMERCIAL ENTITY. (a)
A parent or guardian of a minor who accesses sexual material harmful
to minors due to the violation of this subchapter by a commercial
entity may bring a civil action against the commercial entity.
(b) A parent or guardian who brings an action under this
section shall provide written notice of the action to the attorney
general.
(c) Notwithstanding Sections 41.003 and 41.004, Civil
Practice and Remedies Code, a parent or guardian who prevails in an
action under this section is entitled to recover:
(1) damages in the amount of $10,000;
(2) court costs; and
(3) attorney's fees.
(d) A court may certify an action brought against a
commercial entity under this section as a class action.
Sec. 120.207. OTHER ACTION BY ATTORNEY GENERAL. (a) In
addition to collecting the penalty under Section 120.205, the
attorney general may bring a civil action to enjoin a commercial
entity from further violating this subchapter.
(b) The attorney general may join an action for which the
attorney general receives notice under Section 120.206(b).
(c) The court shall permit the attorney general to join an
action in accordance with Subsection (b) not later than the 30th day
after the date the attorney general receives notice of the action.
(d) If the attorney general joins an action in accordance
with Subsection (b), the attorney general may seek the remedies
provided under Subsection (a) and Section 120.205.
Sec. 120.208. APPLICABILITY OF SUBCHAPTER. (a) This
subchapter does not apply to a bona fide news or public interest
broadcast, website video, report, or event and may not be construed
to affect the rights of a news-gathering organization.
(b) An Internet service provider, or its affiliates or
subsidiaries, a search engine, or a cloud service provider may not
be held to have violated this subchapter solely for providing
access or connection to or from a website or other information or
content on the Internet or on a facility, system, or network not
under that provider's control, including transmission,
downloading, intermediate storage, access software, or other
services to the extent the provider or search engine is not
responsible for the creation of the content that constitutes sexual
material harmful to minors.
SECTION 3. This Act takes effect September 1, 2023.