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REFERENCE TITLE: pornography; publication; consent; verification; violation |
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State of Arizona House of Representatives Fifty-sixth Legislature Second Regular Session 2024
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HB 2889 |
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Introduced by Representative Biasiucci
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An Act
amending title 18, Arizona Revised Statutes, by adding chapter 7; relating to pornography.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 18, Arizona Revised Statutes, is amended by adding chapter 7, to read:
CHAPTER 7
PORNOGRAPHIC MATERIALS
ARTICLE 1. GENERAL PROVISIONS
18-701. Definitions
In this chapter, unless the context otherwise requires:
1. "Authorized representative" means a person who is authorized in writing by the individual to act on behalf of the individual with regard to the matter in question or, in the case of an individual who is under eighteen years of age, a parent or legal guardian of the individual.
2. "Coerced consent" means the purported consent obtained from a person who meets any of the following:
(a) Gives consent through fraud, duress, misrepresentation, undue influence or nondisclosure.
(b) Lacks capacity.
(c) Gives consent through the exploitation or leveraging of the person's immigration status, pregnancy, disability, addiction, juvenile status or economic circumstances.
3. "Computer":
(a) means an electronic, magnetic, optical, electrochemical or other high-speed data processing device performing logical, arithmetic or storage functions and includes any data storage facility or communications facility directly related to or operating in conjunction with such a device.
(b) does not include an automated typewriter or typesetter, a portable handheld calculator or another similar device.
4. "Consent":
(a) means an agreement that is informed and thorough.
(b) Does not include coerced consent.
5. "Covered platform" means an interactive computer service that hosts or makes available to the general public pornographic images. For purposes of this paragraph, the availability of pornographic images to a group of subscribers is considered available to the general public if any member of the general public, subject to reasonable limitations, can obtain a subscription.
6. "Covered platform operator" means a provider of a covered platform.
7. "Eligible person" means, with respect to a pornographic image uploaded to a covered platform, any of the following:
(a) an individual who appears in the pornographic image and who has not provided consent, or has withdrawn consent in compliance with this chapter, for the distribution of the pornographic image.
(b) an authorized representative of an individual described in subdivision (a) of this paragraph.
(c) a law enforcement officer acting pursuant to a valid court order.
8. "Information content provider" means any person or entity that is responsible, in whole or in part, for creating or developing information provided through the Internet or any other interactive computer service.
9. "Interactive computer service" means any information service, system or access software provider that provides or enables computer access by multiple users to a computer server, including a service or system that provides access to the Internet and systems operated or services offered by libraries or educational institutions.
10. "Intimate visual depiction" means any visual depiction that meets both of the following:
(a) Is of an individual who is reasonably identifiable from the visual depiction itself or information displayed in connection with the visual depiction, including through facial recognition, an identifying marking on the individual, including a birthmark or piercing, an identifying feature of the background of the visual depiction, voice matching or written confirmation from an individual who is responsible, in whole or in part, for creating or developing the visual depiction.
(b) in which the individual depicted is engaging in sexually explicit conduct or the naked genitals, anus, pubic area or postpubescent female nipple of the individual depicted is visible.
11. "Pornographic image" means any visual depiction of actual or feigned sexually explicit conduct or any intimate visual depiction.
12. "Sexually explicit conduct" means any of the following, whether actual or simulated:
(a) sexual intercourse, including genital-genital, oral-genital, anal-genital or oral-anal, whether between persons of the same or opposite sex.
(b) bestiality.
(c) masturbation.
(d) sadistic or masochistic abuse.
(e) lascivious exhibition of the anus, genitals or pubic area of any person.
13. "User" means an individual who is an information content provider or, with respect to a covered platform, an individual who is an information content provider who is responsible, in whole or in part, for creating or developing pornographic images hosted or made available by the covered platform.
14. "Visual depiction" means a photograph, film or video or a modified photograph, film or video, whether made or produced by electronic, mechanical or other means.
18-702. Accessing or posting pornographic materials; age verification; consent form requirements
A. A covered platform operator may not upload or allow a user to upload a pornographic image to the covered platform unless the covered platform operator has verified BOTH OF THE FOLLOWING in accordance with SUBSECTION b OF THIS SECTION:
1. the identity of the user.
2. that the user is at least eighteen years of age.
b. A covered platform operator shall verify the identity and age of a user as required by subsection A of this section by ANY OF THE FOLLOWING:
1. requiring use of an adult access code or adult personal identification number.
2. accepting a digital certificate that verifies the user's age.
3. using any other reasonable measure of age verification that the Attorney General has determined to be feasible with available technology.
c. A covered platform operator that only requires a user to confirm that the user is AT LEAST eighteen years of age, without independent means of verification, DOES not satisfy the age verification requirement prescribed by SUBSECTION a OF THIS SECTION.
d. A covered platform operator may not upload or allow a user to upload a pornographic image to the covered platform unless the covered platform operator has verified, in accordance with subsection b OF THIS SECTION, that each individual appearing in the pornographic image:
1. was AT LEAST eighteen years of age when the pornographic image was created or developed.
2. has provided explicit written evidence of consent for each sex act in which the individual engaged during the creation or development of the pornographic image.
3. has provided explicit written consent for the distribution of the specific pornographic image.
e. The consent prescribed in subsection D, paragraph 2 of this section does not imply or constitute evidence of consent prescribed in subsection D, paragraph 3 of this section, and the consent prescribed in subsection D, paragraph 3 of this section does not imply or constitute evidence of consent prescribed in subsection D, paragraph 2 of this section.
F. In carrying out the requirements of subsection A of this section, a covered platform operator shall obtain, either from the user seeking to upload the pornographic image or through other means, both of the following:
1. a consent form developed or approved by the Attorney General from each individual appearing in the pornographic image that includes all of the following:
(a) the name, date of birth and signature of the individual.
(b) a statement that the individual is at least eighteen years of age, unless no reasonable person could conclude that the individual is under thirty years of age.
(c) a statement that the consent is for distribution of the specific pornographic image.
(d) the geographic area and the online, print or other distribution method through which the individual provides consent to distribution of the pornographic image.
(e) the duration of time that the individual provides consent to distribution of the pornographic image.
(f) a list of the specific sex acts that the person agrees to engage in for the pornographic image.
(g) a statement that explains coerced consent and that the individual has the right to withdraw the individual's consent at any time.
2. At least one form of valid identification for each individual appearing in the pornographic image:
(a) that was issued by an agency of the United States or of a state, local or foreign government and that contains the name, date of birth, signature and photograph of the individual.
(b) on which the name, date of birth and signature of the individual match the name, date of birth and signature of the individual on the consent form that is required by paragraph 1 of this subsection.
G. The Attorney General shall develop and make available to the public a consent form that complies with the requirements of subsection F, paragraph 1 of this section. A covered platform operator shall make the consent form available to users in both written and electronic formats.
H. a user may submit to a covered platform an alternative consent form created by a user or covered platform operator if the alternative consent form has been approved by the Attorney General.
I. This section does not affect any obligation of a covered platform pursuant to any other general or special law or impact or otherwise limit the criminal liability of a user or other individual pursuant to any other law.
18-703. Removal of pornographic materials; notice; procedures; removal requirements
A. A covered platform operator shall establish a procedure for removing a pornographic image from the covered platform at the request of a person and designate one or more employees of the covered platform operator to be responsible for handling requests for removal of pornographic images.
B. A covered platform operator shall display a prominently visible notice on the website or mobile application of the covered platform that provides instructions on how a person can request the removal of a pornographic image.
C. If a covered platform operator receives a request from an eligible person, through any request mechanism offered by the covered platform operator pursuant to subsection B of this section, to remove a pornographic image that is being hosted by the covered platform without the consent of an individual who appears in the pornographic image, the covered platform operator shall remove the pornographic image as soon as practicable but not later than seventy-two hours after receiving the request.
D. If a covered platform operator receives a request from a person other than an eligible person, through any request mechanism offered by the covered platform operator pursuant to subsection B of this section, to remove a pornographic image that is being hosted by the covered platform without the consent of an individual who appears in the pornographic image, not later than seventy-two hours after receiving the request the covered platform operator shall review the records of the covered platform operator with respect to the pornographic image to determine whether the pornographic image was uploaded to the covered platform in accordance with the age verification requirements prescribed by Section 18-702. If the covered platform operator determines that the pornographic image was not uploaded to the covered platform in accordance with the age verification requirements, the covered platform operator shall remove the pornographic image.
E. In the case of a pornographic image that has been removed from a covered platform in accordance with this section, the covered platform operator shall block the pornographic image and any altered or edited version of the pornographic image from being uploaded to the covered platform again.
18-704. Users; consent requirements
A. A user may not upload a pornographic image of an individual to the covered platform without the consent of the individual.
B. For the purposes of subsection A of this section, whether an individual has provided consent to the uploading of a pornographic image must be determined in accordance with this chapter and any other applicable law.
18-705. Enforcement by the attorney general; civil penalties; private right of action; damages
A. The attorney general may impose a civil penalty on any covered platform operator that violates section 18-702, subsection A in an amount of not more than $10,000 for each day during which a pornographic image remains on the covered platform in violation of Section 18-702, subsection A, beginning twenty-four hours after the attorney general provides notice of the violation to the covered platform operator. A civil penalty imposed pursuant to this subsection accrues on a per-day and per-image basis.
B. If a covered platform operator violates section 18-702, subsection D with respect to a pornographic image, any person aggrieved by the violation may bring a civil action against the covered platform operator for damages in an amount equal to the greater of either:
1. $10,000 for each day during which a pornographic image remains on the covered platform in violation of section 18-702, subsection D, calculated on a per-day and per-image basis.
2. Actual damages.
C. The attorney general may impose a civil penalty on any covered platform operator that violates section 18-703, subsection A in an amount of not more than $10,000 for each day during which the covered platform remains in violation of section 18-703, subsection A, beginning twenty-four hours after the attorney general provides notice of the violation to the covered platform operator.
D. The attorney general may impose a civil penalty on any covered platform operator that violates section 18-703, subsection B in an amount of not more than $5,000 for each day during which the covered platform remains in violation of section 18-703, subsection B, beginning twenty-four hours after the attorney general provides notice of the violation to the covered platform operator.
E. If a covered platform operator violates section 18-703, subsection C with respect to a pornographic image, any person aggrieved by the violation may bring a civil action against the covered platform operator for damages in an amount equal to the greater of either:
1. $10,000 for each day during which the pornographic image remains on the covered platform in violation of section 18-703, subsection C, calculated on a per-day and per-image basis.
2. Actual damages.
F. A covered platform operator is not liable as prescribed by subsection E of this section for a violation of section 18-703, subsection C if, in allowing the upload of a pornographic image to the covered platform, the operator reasonably relied on verification materials in accordance with section 18-702, subsection F that were later found to be fraudulent, if the covered platform operator removes the pornographic image not later than twenty-four hours after discovering that the verification materials are fraudulent. If a covered platform operator fails to remove a pornographic image within twenty-four hours after discovering that the verification materials are fraudulent, damages pursuant to subsection E, paragraph 1 of this section must be calculated with respect to each day after the date on which that twenty-four-hour period expires.
G. If a covered platform operator violates section 18-703, subsection E with respect to a pornographic image, any person aggrieved by the violation may bring a civil action against the covered platform operator for damages in an amount equal to the greater of either:
1. $10,000 for each day during which the pornographic image remains on the covered platform in violation of section 18-703, subsection E.
2. Actual damages.
H. If a user of a covered platform violates section 18-704 with respect to a pornographic image, any person aggrieved by the violation may bring a civil action against the user for damages in an amount equal to the greater of either:
1. $10,000 for each day during which the pornographic image remains on the covered platform in violation of section 18-704, calculated on a per-day and per-image basis.
2. Actual damages.
18-706. Unlawful publishing of intimate visual depictions; violation; classification; fine; applicability
A. Except as provided in subsection C of this section, it is unlawful for any information content provider to knowingly use any interactive computer service to publish an intimate visual depiction of an individual with knowledge of or reckless disregard for both of the following:
1. the lack of consent of the individual to the publication.
2. the reasonable expectation of the individual that the intimate visual depiction would not be published through an interactive computer service without the individual's consent.
B. A violation of subsection A of this section is a class 4 felony and the person, notwithstanding section 13-801, shall pay a fine of not more than $10,000.
C. Subsection A of this section does not do any of the following:
1. prohibit any lawful law enforcement, correctional or intelligence activity.
2. apply to an individual acting in good faith to report unlawful activity or in pursuance of a legal or other lawful obligation.
3. apply to a document production or filing associated with a legal proceeding.