18 USC § 2257 Obligations Regarding Amateur Submissions

My site has many sections, but two are particularly key to its success. In these sections, amateurs post their own shots. The compliance department is asking me how I verify they are 18 or older, in accordance with 18 USC § 2257.Question:

My site has many sections, but two are particularly key to its success. In these sections, amateurs post their own shots. The compliance department is asking me how I verify they are 18 or older, in accordance with 18 USC § 2257.

Right now, I have no statements on my site about this law. But I specifically ask submitters to be 18 or older. I also refuse shots that I consider questionable.

What are the precise requirements of the law with regard to emailed amateur submissions?

I saw one site that has a 18 USC § 2257 statement on it that says in regard to amateur submissions, “the site believes all models to be 18” or something along those lines… the key word being “believe.” Can anyone give me a legal, or an informed opinion on how to keep this section of my site?

It would be unrealistic for me to ask models to submit a photo ID… I doubt anyone would. I’m wondering how to satisfy my billing company without being forced to gut my site of one of its primary pulls.

Thanks for any ideas or help.

? ? ? ? ? ? ? ? ? ? ?

If the pictures are sexually explicit, you MUST comply with 18 USC § 2257.

Are breasts sexually explicit? That’s a tricky question, because it depends upon the context in which the breasts are presented. We are all familiar with works of art in museums that depict breasts, but aren’t considered to be sexually explicit.

However, be aware that American courts have held that pictures showing people FULLY CLOTHED can be considered sexually explicit, and hence, subject to § 2257. So, just because only breasts are shown does not automatically mean that the pictures aren’t sexually explicit. A lawyer should be consulted for an opinion as to whether specific images may be deemed sexually explicit.

On another point, stating that you “believe that all people pictured on the site are at least 18 years old”, in legal terms, doesn’t mean squat! What you BELIEVE is irrelevant. The issue is whether the people actually ARE 18 or over. Saying to a prosecutor or judge, “Well, I THOUGHT they were 18” won’t keep you out of jail! Your intentions and thoughts don’t matter. The actual age of the people is paramount.

Furthermore, even if the people you “believe” are at least 18 in fact are at least 18, you’re still not on safe ground. According to § 2257, you MUST have documentation (or have access to that documentation) proving the ages of every single person in every single sexually explicit image on your site. Even if a person on your site is actually 35 and looks 35, if you don’t comply with the record keeping requirements of § 2257 (by having a copy of the person’s identification, or having access to that documentation), then you have broken the law by not having a copy of that 35-year-old’s identification.

Simply asking people who submit pictures to you to be at least 18 years of age is practically worthless. People lie. And even if they are at least 18, again, you MUST have records or access to records showing the ages of these people.

So, if you want to keep this section on your site where people submit pictures of themselves, in order to comply with the law, you MUST acquire copies of the amateurs’ identification BEFORE you post their pictures. If they refuse to provide their identification, then DON’T POST THEIR PICTURES!

The best way to protect yourself would be:

1. Ask for a copy of government-issued identification to verify age – it is always best to get two pieces of identification;

2. Send the person providing the image a simple contract, outlining that:

a) he/she is giving you permission to use the image in any manner you deem fit, without compensation to the image owner

b) he/she is in fact the owner of the image

c) he/she is at least 18 years of age (do this in addition to getting copies of the government identification)

d) he/she will indemnify you should it turn out that he/she is NOT the actual owner of the image. This means that if someone else sues you and proves that the person who gave you the image didn’t own it, then the person who wrongfully gave you the image will be responsible for paying any damages awarded against you.

This probably seems like a lot of headache and hassle to go through. But this is serious. If you don’t follow these steps, you could end up being sued and lose everything you’ve worked for, or you could end up in jail!

Cheers,

Otto

YNOTMASTERS

An additional concern with submitted images is that you run the risk of “jilted lover” postings. Sites that take amateur postings have had numerous problems with typically ex-boyfriends posting private images of former girlfriends. In some cases, the jilted person can go completely over the edge.

In November 2002, a British gentleman named Philip Nourse was actually sentenced to five months in jail for posting sexually explicit images of his 19 year-old ex-girlfriend on the Internet. There were many issues in the case, but much of it focused on the fact that he was hell-bent on getting revenge by publishing the images on a site and directing her friends and others to the domain!

While the story is somewhat humorous, there is a significant risk associated with posting unverified submitted images. In the above matter, Nourse actually hacked into the personal site of his ex-girlfriend, so the court never addressed the issue of site or ISP liability. Regardless, I really doubt that you want the exposure that will occur if someone uses your site for revenge.

From an absolutely paranoid point of view, what happens if an enforcement officer submits an image of a “young woman” involved in sexually explicit action? Can you prove she is 18 years old pursuant to 18 USC § 2257? In a separate case, law enforcement actually submitted escort files with fake images to a Web site they were investigating, with arrest warrants being issued as a result.

Food for thought…

Chapo

AdultInternetLaw.com

Gregory J. Geelan, J.D. “Otto” is Legal Counsel for YNOT Network, LP, and Editor for YNOT NEWS and has been practicing law for eleven years. He can be reached at greg@ynotmasters.com.

Otto & Chapo are also the Legal Chat Board Moderators here at YNOTMASTERS.