I) Introduction
The author has represented adult webmasters for over 20 years, and has defended numerous obscenity prosecutions filed against adult website content. Below are some of the legal and constitutional topics facing the adult website operator. This guide is by no means intended as an exhaustive list, but covers the most common legal issues encountered by adult webmasters. Adult entertainment is a “highly regulated industry” in the United States. That means the government can get away with imposing a wide variety of laws and regulations relating to the operation of adult websites, which differ from other “mainstream” goods or services. The adult webmaster should become an expert on legal compliance issues governing the production, distribution, and promotion of erotic content.
II) Basic Concept
Adult websites include things like “pay sites”, which require money from the user to access adult content; “free sites” (such as TGP, MGP, Tube sites or Affiliate sites) which provide free access to adult content, usually for promotional purposes; “live webcam sites” which allow users to interact with performers using webcam and chat technology, and “adult dating sites” which connect individuals interested in erotic social interaction. Publishing and distributing adult content is protected by the First Amendment to the U.S. Constitution, under well-settled legal precedent. The creation of adult content has been recognized as legal (and not a violation of prostitution laws) in a couple states, but the issue has not been addressed in most parts of the country. Obscenity and child pornography are illegal, and involvement with these categories of material can result in serious criminal prosecution. Obscenity laws are rarely invoked these days, but remain on the books as a potential tool for prosecution of adult website operators. Child pornography and human trafficking laws impose significant age verification obligations on a website operator involved with the creation, publication or advertising of sexually-explicit content.
III) Age Verification, Model Releases, and Records Keeping Obligations
Adult webmasters must take steps to ensure that performers and website users are over the age of 18 in the US. Federal law imposes numerous records keeping obligations. Title 18 U.S.C. s. 2257 (and associated federal regulations) require that performers in sexually explicit media provide government-issued ID’s, and that all producers (including secondary producers such as webmasters) maintain records associated with the performer. We recommend that our clients use our firm’s mobile app; Quick2257, to compile mandatory performer age records. Model releases must be obtained and kept separately from the Section 2257 age records. These releases should be drafted by an experienced adult website lawyer, and cover issues such as right of publicity, invasion of privacy, STD’s, sexual harassment, condom usage, and character/persona rights. The publication of sexually explicit media on a website generally requires a Section 2257 disclosure statement, which identifies the location of the mandatory records. Some user-generated content or profiles are exempt from these obligations. For example, tube sites and adult dating sites can position themselves to take advantage of Section 2257 exemptions, if operated properly.
