Essential for a legal and professional website are -
Warning Pages and Privacy Act Statements
And Other Ingredients Key to Full Compliance
By J. D. Obenberger, Attorney at Law
© MMXII J. D. Obenberger, All Rights Reserved
Every commercial website in the adult sphere needs to be designed to comply with the law, to reduce risk, and to protect its operators from both civil and criminal liability.
What follows is a bare-bones list of the features usually necessary for safe operation. A different perspective, one that shows the range of legal issues that the webmaster must consider, and how this website adresses those issues is found on our welcome page introducing this site to beginners.
The core features of your site's architecture should include, as a minimum -
- A landing page that features no content offensive to the casual or accidental surfer uninterested in pornography, and ideally sutable for families and children. Webmasters balk at this advice, pointing out that a lack of sexually expicit imagery dripping with lewd bodily fluids and secretions will lose the surfer to another site. To the contrary, I think that an imaginative designer and developer can use images of unquestioned allure and appeal coupled with text that, serving its cautionary purpose of explaining the nature of the incidiary content withing, can do so with a vivid enough, creative description that leaves the surfer urgently longing for a glimpse behind the curtain.
Warning Pages are technically not required by law. But there are two good reasons to use them. The first is that Congress asked the adult community to do so at Section 602 (b) of the Protect Act:
SEC. 602. SENSE OF CONGRESS.
(b) VOLUNTARY LIMITATION ON WEBSITE FRONT PAGES.--It is the sense of Congress that the online commercial adult entertainment industry should voluntarily refrain from placing obscenity, child pornography, or material that is harmful to minors on the front pages of their websites to protect juveniles from material that may negatively impact their social, moral, and psychological development.
It's hard to imagine that the FBI or an Assistant United States Attorney, in making a charging decision or a decision about whether to conduct an invetigation, in a close case, might not be influenced by compliance.
The Warning Page can limit lawful access to your site to persons who agree to reasonable terms of service and who expressly enter into them by clicking through. This can be a valuable tool to many, if not all websites, in controling liability of all kinds.
- A Privacy Act Statement conforming to California's BUSINESS AND PROFESSIONS CODE SECTION 22575-22579, to the extent that the website collects any personally identifiable information. Why? Because, if California were a separate nation, it would have the fifth largest economy in the world, because any adult website will aim itself to California consumers and it will eventually enter into transactions that are intermeshed with California and Calfornians.
- The Identification of a DMCA Agent and a DMCA Infringement Policy if any user- or third-party submitted content is employed. Again, not exactly mandatory, but you lose protection afforded by the law if you fail to do so. Of course, the DMCA Agent needs to be registered with the Copyright Office, and your content also needs to be registered before you can bring suit, and generally should be registered within three months of first publication to avoid the permanent loss of certain rights.
- A Section 2257 Compliance Statement, to the extent that covered material exists and Section 2257A is not an option. Don't copy this from an old site. You may be copyring yourself into serious trouble becuase the large majority of them are so outdated that it will telegraph the Inspectors that you don't have a clue about what the law requires.
- Terms of Service. They come in at least two flavors, and often more. One for general surfers who come to your free site or free tour area, and another for your members. Perhaps more for advertisers or uploaders of content. There is an incredible, diverse, and wide range of clauses which can protect you and your possessions, ranging from disclaimers of warranties to defense and indemnification clauses. Again, if you copy these from another site, you are asking for trouble for an almost infinite number of reasons. The clothes just may not fit. They may have been customized into oblivion by a nonlawyer and have no legal effect, or they may have been created by a lawyer for an entirely different purpose. Do this at your own peril.
- Depending on the nature and functionality of your site, you may well need protocols for such activities and interaction and uploads. These protocols will include templates for the functions, such as uploads, and they will impose contractual terms and representations on users. To interact with your customers without adequate legal protection is foolhardy and dangerous in the extreme.
This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.
Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420 and is available to established clients round the clock. His e-mail address is firstname.lastname@example.org.