PHOENIX, Ariz. – An Arizona lawmaker has proposed a bill which would create civil liability for any “commercial entity” to “knowingly and intentionally produce, publish, sell or offer for sale pornography or commercially distribute pornography” in the state.
Under HB 2900, sponsored by Republican Rep. Khyl Powell, if the state’s attorney general “believes that a commercial entity knowingly violated this section and an action is in the public interest, the attorney general may bring an action in superior court in the county in which the commercial entity’s principal place of business is located to enjoin the violation and to recover a civil penalty and obtain other relief the court considers appropriate.”
The bill also provides a private course of action by citizens of the state, should the office of the attorney general not file such an action on its own.
“If the attorney general does not file a claim against a commercial entity that knowingly violated this section, a private person may bring an action in the name of this state,” the bill’s text states. “The action may be dismissed only by order of the court and with written consent of the attorney general.”
Should the attorney general’s office have a change of heart after such a private action is initiated, the law provides an opportunity for the attorney general to take over the matter and proceed with prosecuting the matter.
“On the same day that the complaint is filed, the plaintiff shall serve on the attorney general by certified mail, return receipt requested, a copy of the complaint and a written disclosure of substantially all material evidence and information that the plaintiff possesses,” the bill states. “The attorney general may intervene and proceed with the action within one hundred twenty days after the attorney general receives the complaint, material evidence and information.”
If the attorney general still declines to take legal action against the alleged offender(s), the person who brought the suit can take over again to continue litigation.
“Before the expiration of the one hundred twenty-day period, the attorney general shall either proceed with the action or notify the court that the attorney general declines to take over the action, in which case the person bringing the action may conduct the action,” the bill stipulates. “After a person brings an action under this subsection, no other person may bring a related action that is based on the facts underlying the pending action.”
Under the bill, the court can impose fines of “$10,000 per day that the commercial entity produces, publishes, sells, offers for sale or commercially distributes pornography” and “$10,000 per instance in which the commercial entity sells, offers for sale or commercially distributes pornography” in violation of the law.
The bill states that the court “shall determine the amount of a civil penalty that is imposed” based on a variety of factors, including “the seriousness of the violation, including the nature, circumstances and extent of the violation;” the “history of previous violations;” the “amount necessary to deter a future violation;” the “economic impact on the entity;” the “commercial entity’s knowledge that the act constituted a violation;” and “other matter that justice may require.”
If signed into law, HB 2900 would not ban possession of pornography in the state, as its text specifies that “this section does not… impose civil liability on an individual solely for the private possession, private viewing or private receipt of pornography.” The bill also specifies that it does not “apply to a bona fide news or public interest website, video, report or event” or “affect the rights of a news gathering organization.”
The bill also states that an “internet service provider or the internet service provider’s affiliates or subsidiaries or a search engine or a cloud service provider is not in violation of this section for providing access or connection to or from a website or other information or content on the internet that is not within the internet service provider’s or the affiliate or subsidiary of the internet service provider or a search engine or a cloud service provider’s control.”
