united-states pornography
Who is responsible for ensuring that 18+ content is not shown to minors: the site or the user?
<p>Websites generally want to prevent minors from viewing 18+ content, but if a minor does access the content, is the minor legally responsible or is the website legally responsible, and what are the legal consequences? What measures is the website legally required to take? These are a few examples to consider:</p>
<ul>
<li>A website only shows a warning against 18+ content on its home page, but fails to show it on any subpages (no account needs to be created to view the content).</li>
<li>A website says in its Terms of Service that viewers must be age 18 or older, but does not show any warnings, expecting users to check the Terms and leave immediately if the user is a minor. The home page itself does not have 18+ content.</li>
<li>A website shows an 18+ warning before viewing content and requires users to click that they are at least 18 years old and would like to view 18+ content.</li>
<li>A website requires users to create an account and provide their birthdate, but does not require an actual ID, before viewing 18+ content.</li>
</ul>
<p>No financial transactions take place.</p>

<p>A website can arbitrarily decide that it will not allow access to any person under 18. The minor violating the TOS in that case would bear whatever the legal consequences fall upon them, by being sued by the website owner.</p>
<p>For most if not all cases of so-called &quot;18+&quot; content, the restriction relates to laws regarding dissemination of obscene materials to minors. There are various state laws against disseminating obscene material to anyone, and additionally, federal laws against disseminating obscene materials to minors, see <a href="https://www.law.cornell.edu/uscode/text/47/223" rel="nofollow noreferrer">47 USC 223(d)</a>. It is extremely unclear what constitutes &quot;obscene&quot; material (this is determined by the jury), so while porn may be legal, there <em>is</em> a risk in allowing a minor to view porn, because there is an increased risk that content that is deemed to be legal to show to an adult may be deemed obscene when shown to a minor. Out of an abundance of caution, a website operator may therefore try to filter out minors from the viewing audience.</p>
<p>Here is the logical flow of the relevant federal law. 1: A website cannot send obscene material to a minor. 2: Nor can they make it available for a minor to see. However, both provisions are subject to a &quot;knowingly&quot; provision, thus accidentally making obscene material available is not a violation of the law. Additionally, subsection (e)(5) provides defenses, one that the person</p>
<blockquote>
<p>has taken, in good faith, reasonable, effective, and appropriate
actions under the circumstances to restrict or prevent access by
minors to a communication specified in such subsections, which may
involve any appropriate measures to restrict minors from such
communications, including any method which is feasible under available
technology</p>
</blockquote>
<p>or</p>
<blockquote>
<p>has restricted access to such communication by requiring use of a
verified credit card, debit account, adult access code, or adult
personal identification number</p>
</blockquote>
<p>And furthermore, (6):</p>
<blockquote>
<p>The Commission may describe measures which are reasonable, effective,
and appropriate to restrict access to prohibited communications under
subsection (d).</p>
</blockquote>
<p>(The &quot;Commission&quot; is the FCC). There are apparently no such regulations.</p>
<p>There are related laws such as <a href="https://www.law.cornell.edu/uscode/text/18/1470" rel="nofollow noreferrer">18 USC 1470</a> which criminalize transferring obscene material to anyone under age <em>16</em>, which also has a &quot;knowingly&quot; requirement. There are <a href="https://www.law.cornell.edu/uscode/text/18/2252C" rel="nofollow noreferrer">laws against tricking children</a> into viewing &quot;harmful&quot; content by using misleading names, but the law also says that &quot;a word or digital image that clearly indicates the sexual content of the site, such as 'sex' or 'porn', is not misleading&quot;.</p>
<p>In short, in a hypothetical cases where some content is <em>labeled</em> &quot;18+&quot;, there are no legal consequences for the website operator unless the material is actually deemed to be obscene. In that case, the operator would have to make a reasonable attempt to exclude minors, such as by requiring a customer to be 18+ to view the site.</p>
