LEGAL BRIEFS

The last seminar on the last day of the Cybernet Expo in Montreal was entitled “Legal Subjects”. Sitting on the panel were attorneys Joe Obenberger, Larry Walters, Greg Piccionelli, and Reed Lee.

U.S.LEGAL BRIEFS

The last seminar on the last day of the Cybernet Expo in Montreal was entitled “Legal Subjects”. Sitting on the panel were attorneys Joe Obenberger, Larry Walters, Greg Piccionelli, and Reed Lee.

U.S. and Canadian Free Speech Law Compared and Contrasted

Mr. Lee, who is an associate at the XXXLaw.net law offices opened up the seminar with a dissertation on the similarities and differences between obscenity laws in the United States and Canada. Foremost he pointed out that when it comes to pornography, there are three distinct categories of obscenity:

1. Material that is legally obscene;

2. Material that is harmful to minors and therefore deemed obscene; and

3. Child pornography, which is de facto obscene in both the U.S. and Canada.

Canada and the United States have different standards for answering the question raised by the first category above, namely when does certain pornography cross the fine line between legal material and obscene material? He addressed the U.S. standards first.

Under U.S. law, obscenity was legally defined in the Miller case in 1973. In an obscenity prosecution, the government must prove:

1. That in applying contemporary community standards, the work in question as a whole appeals to the prurient interest, which is described as an unhealthy sexual interest;

2. That in applying contemporary community standards, the work in question depicts material in a patently offensive way; and

3. That the work lacks serious value (artistic, educational, etc.).

As we recently saw in the COPA decision of a few weeks ago, there is no clear-cut majority among the U.S. Supreme Court Justices as to WHICH community standards apply to the Internet – whether local, national, or some other community. However, the Court seems to be leaning away from imposing local community standards.

Mr. Lee then turned to the Canadian legal standards. Under Canadian law, obscenity in the confines of pornography is defined as material with an undue exploitation of sex, applying national community standards. Thus, while the U.S. Supreme Court has yet to rule upon which community standards will apply to obscenity determinations, Canada has already applied a national standard. [It should be noted that Canadian network television often depicts softcore pornography in the late evening hours, suggesting that the national standard in Canada when it comes to sexuality is much more liberal than what is commonplace in the United States.]

In 1992, the Canadian Supreme Court outlined three different categories of pornography:

1. That which depicts explicit sex with violence;

2. That which depicts explicit sex without violence, but is degrading or dehumanizing; and

3. That which depicts explicit sex without violence that is neither degrading nor dehumanizing.

The Canadian Supreme Court has determined that where violence is involved, the material is most likely obscene, as well as where the material is degrading or dehumanizing. Explicit sex without violence and without any degrading or dehumanizing depictions is unlikely obscene, unless children are involved.

Thus, Canadian law is more certain than U.S. law is when it comes to specifically defining obscenity. While U.S. law leaves juries to determine on a case-by-case basis whether material is obscene, under Canadian law, pornographic material is almost certainly legal as long as there is no violence or degrading subject matter (or children). However, Canadian law may prohibit material containing adults who appear to be minors, while the U.S. Supreme Court has recently determined that material may be constitutionally protected even if it contains adults who appear to be minors. Under U.S. law, a minor has to actually be involved in the material in order for it to be obscene, while Canadian law may find material obscene even if no actual minor is involved.

Vicarious Liability – How Webmasters May Be Held Liable For The Actions of Others

Attorney Piccionelli began his presentation by repeating a common mantra that adult content is more regulated in the United States than is hazardous waste. However, the government has not particularly enforced these adult content regulations – but that will be changing.

Mr. Piccionelli instructed that webmasters might be held criminally and/or civilly liable for what others they are doing business with are doing. For example, an affiliate program may be held responsible for the actions of its affiliates, and vice versa; a billing company may be liable for the actions of the sites it processes for, and vice versa; a hosting company may be liable for the actions of the sites it hosts, and vice versa; etc.

How can this be? Under civil law, one may be held liable for the actions of another under the legal principle of contributory or vicarious liability. Under criminal law, one may be held responsible under the labels of aiding and abetting, racketeering or conspiracy.

In order to be held responsible for the actions of others, either civilly or criminally, the webmaster is question must either:

1. Have some form of control over the improper conduct being committed by another; OR

2. Have knowledge of the improper conduct and either assist in its performance, benefit from it, or encourage it.

For example, a webmaster may face civil liability for contributory copyright infringement in a situation where the webmaster knows of another site that is infringing upon the copyrights of others, and the webmaster provides links on his site to the infringing site.

A specific case where these legal principles are being litigated is Perfect 10 vs. Cybernet Ventures (Adult Check). The court recently denied Adult Check’s motion to be dismissed from the case. Perfect 10 is claiming that Adult Check, an AVS system, should be held vicariously liable for the actions of its member sites, who Perfect 10 claims are infringing upon its copyrights by using its images without permission or compensation. The court held that if Perfect 10 can prove its case, Adult Check might be held liable for the actions of its affiliate sites, suggesting that Adult Check (and all other AVS systems) should examine each affiliated site for improper activity.

Piccionelli stated that cases like this have lawyers salivating. The public perception, whether true or not, is that the adult side of the Internet is the only Internet component that is profitable. Hence, there is a “deep pocket” here for lawyers to go after. And if one adult Internet entity can be held liable for the actions of others, winning cases against adult Internet companies will be like shooting fish in a barrel. Hence, webmasters must be extremely cautious about who they do business with – including every single site they link to.

He suggested that webmasters do the following to lower the risk of being held responsible for the actions of others:

1. Get an attorney who knows intellectual property law (patents, copyrights, trademarks) as well as Internet, vicarious liability, and criminal laws;

2. Use contracts with everyone you deal with, and make sure that those contracts contain indemnity provisions protecting you from liability for the actions of others;

3. Know who you are dealing with and what they are doing, BUT, the more you know about what someone else is doing, the more likely you can be held vicariously liable for the wrongful actions of that person. Bottom line, be careful;

4. Don’t use email to discuss delicate matters as these emails can be used against you in court;

5. Take seriously any legal notices that you get, such as cease and desist letters, and contact an attorney immediately;

6. Get intellectual property insurance, which will cover you against claims such as contributory copyright infringement.

Organize to Safeguard and Protect Your Legal Rights!

There was little time left in the seminar for the last two attorneys to get through their presentations, so they quickly hit on some key points that they wanted to bring up. Larry Walters discussed a case he is currently handling where a local strip club in his area is being prosecuted on prostitution charges, among others. He described how the civil liberties of the individual dancers are being trampled upon, and their privacy being violated, by local law enforcement. He also mentioned that police officers were accosting clients coming out of the strip club and threatening to tell their wives where they were if they didn’t cooperate with authorities and provide testimony against the strip club. Apparently, the catalyst for the investigation were comments that were made on the strip club’s website. Further, local media was tipped off to the raid and arrests by the police and were present to witness the busts (no pun intended). Thus, the strip club has already been, in essence, tried and convicted by the media while only listening to law enforcement’s side of the story.

The point Mr. Walters hammered home is that just as there is a common misperception about strip clubs and the people who work for them, which misperception contributes to the violation of civil liberties, there is a similar misperception about the adult Internet industry – that it is populated with law-breaking child pornographers. And nothing is being done by the industry itself to correct that misperception. The industry has no lobbying voice when it comes to proposed legislation that affects the adult Internet, and there are several pending bills in the U.S. that may severely hamper the adult Internet and First Amendment rights. There is no individual or group of individuals to put our industry’s “best face” forward and represent us in dealing with the media. It would behoove the adult Internet to enhance our public perception. Mr. Walters stated that it is critical for the survival of the adult Internet industry to organize a single voice for the industry through an industry-wide organization – and the time is now, because with all the laws that are currently pending, it will soon be too late.

Mr. Walters then briefly discussed the recent U.S. Supreme Court decision on the Child Online Protection Act (COPA). The law is intended to keep children from accessing online adult material. The Act indicates that websites can utilize credit cards for age verification purposes, even though credit cards are now being provided to minors. Hence, Walters stated that it is a good idea that webmasters comply and begin screening their surfers by obtaining credit card information, even though the law has not yet been enforced and is still locked up in the courts.

The recent COPA decision provided good news and bad news. The good news is that it was sent back down to the District Court for further examination of a number of issues, and so is still unenforceable. The bad news is that eight of the nine Justices did not invalidate the law based on its inclusion of community standards to the Internet, which has been argued by many should not apply. The Court did not conclusively decide which community standards, if any, should apply to the Internet. That question may be answered if COPA once again works its way up to the Supreme Court on appeal. However, that question may first be addressed in litigation that is pending regarding the Communications Decency Act, which may make it to the Supreme Court before COPA does.

Storm Clouds are Gathering Over the Adult Internet

The flamboyant Joe Obenberger spoke primarily about a recent legal conference he attended. The National Cyber Law Conference was a continuing legal education program primarily focused toward United States prosecutors. It was attended by U.S. Department of Justice leaders, U.S. Attorney’s Office prosecutors, F.B.I. agents, and local District Attorneys and Assistant District Attorneys. Mr. Obenberger encountered two other defense attorneys other than himself, who worked on the other side of the fence, defending the individuals that the above-mentioned people routinely prosecute. There may have been others present at the conference, but however many there were, they were not in much evidence, according to Joe.

On a positive note, he learned that when it comes to computers, prosecuting pornography-based Internet obscenity cases isn’t currently at the top of the Justice Department’s list. It currently focuses on crimes committed using a computer, such as hacking, and evidence of crimes that are stored on computers. However, it was made abundantly clear at the conference that priorities are soon to change. In fact, Mr. Obenberger learned of an upcoming conference for prosecutors with a primary focus on Internet obscenity prosecutions.

Looking into his crystal ball, Mr. Obenberger opined that future prosecutions would focus on two matters. First will be § 2257 compliance, a federal law that requires publishers of sexually-explicit images to keep and make available printed records regarding all models depicted in the photographs. Obenberger estimates that the majority of webmasters are not complying with this law, and so will easily be shut down once prosecutions commence.

The second area he believes prosecutors will focus on is models that appear to be under the age of 18. He pointed out the hypocrisy of a lawfully married, 17 year-old woman who can lawfully have sex with her husband. However, if pictures are taken of her having sex with her husband, the publisher of those photographs can be convicted in an obscenity prosecution for publishing child pornography, as the woman is not at least 18 years of age.

Mr. Obenberger envisions prosecutors investigating websites with images of women who appear to be under 18. If the website operator cannot prove that a particular woman in question is at least 18, and a government-paid expert witness testifies that the woman is likely under the age of 18 (without ever having actually seen the woman in person), then that webmaster will be convicted, even if the model is actually at least 18 years old.

The moral of the story is to never publish an image if you can’t later prove the age of all individuals portrayed in the image. As many webmasters are currently unable to do that, any such prosecutions may result in sweeping changes in the adult Internet.

Please allow me to wrap up this article with some editorial comments. I found this seminar to be the most important of all the seminars I attended at Cybernet Expo. Sure, I am a bit biased since I am an attorney myself, but in these dangerous and rapidly-changing times, all webmasters should be keenly aware of any and all legal risks they face in operating their online businesses.

However, there were only 30 webmasters at most who attended this seminar. I think a crucial cause for the poor attendance was the timing of the seminar, being the last seminar on the last day of the convention. History has shown that in general, the earlier a seminar is held during a tradeshow, the better it is attended. After several days of marathon partying, it becomes more and more difficult for webmasters to drag themselves to seminars, regardless of how important the subject matter. Given the supreme relevance of legal seminars in today’s environment, I implore the organizers of our industry conventions to schedule the legal discussions as early in the tradeshow as possible, to ensure better attendance and a better informed webmaster community.

Gregory J. Geelan, J.D., is President and CEO of YNOT Network, LP, and has been practicing law for ten years. He can be reached at greg@ynotmasters.com.

LEGAL BRIEFS

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