Senate Bill 2346

(As Sent to Governor)

AN ACT TO REGULATE PORNOGRAPHIC MEDIA EXPOSURE TO CHILDREN; TO PROVIDE THE LEGISLATIVE INTENT; TO PROVIDE DEFINITIONS; TO REQUIRE COMMERCIAL ENTITIES THAT PROVIDE SUCH CONTENT TO HAVE AGE VERIFICATION SYSTEMS; TO PROVIDE LIABILITY FOR THOSE COMMERCIAL ENTITIES THAT DO NOT PROVIDE AN AGE VERIFICATION; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. The Legislature finds that pornography contributes to:

(a) The hyper sexualization of teens and prepubescent children and may lead to low self-esteem, body image disorders;

(b) An increase in problematic sexual activity at younger ages, and increased desire among adolescents to engage in risky sexual behavior;

(c) Difficulty in forming or maintaining positive, intimate relationships, as well as promoting problematic or harmful sexual behaviors and addiction; and

(d) A negative impact brain development and functioning, contribute to emotional and medical illnesses, shape deviant sexual arousal.

SECTION 2. The following words shall have the meanings described herein:

(a) "Commercial entity" includes corporations, limited liability companies, partnerships, limited partnerships, sole proprietorships, or other legally recognized entities.

(b) "Distribute" means to issue, sell, give, provide, deliver, transfer, transmute, circulate, or disseminate by any means.

(c) "Internet" means the international computer network of both federal and nonfederal interoperable packet switched data networks.

(d) "Material harmful to minors" is defined as all of the following:

(i) Any material that the average person, applying contemporary community standards would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest.

(ii) Any of the following material that exploits, is devoted to, or principally consists of descriptions of actual, simulated, or animated display or depiction of any of the following, in a manner patently offensive with respect to minors:

1. Pubic hair, anus, vulva, genitals, or nipple of the female breast.

2. Touching, caressing, or fondling of nipples, breasts, buttocks, anuses, or genitals.

3. Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, excretory functions, exhibitions, or any other sexual act.

(iii) The material taken as a whole lacks serious literary, artistic, political, or scientific value for minors.

(e) "Minor" means any person under the age of eighteen (18) years.

(f) "News-gathering organization" means any of the following:

(i) An employee of a newspaper, news publication, or news source, printed or on an online or mobile platform, of current news and public interest, while operating as an employee as provided in this subparagraph, who can provide documentation of such employment with the newspaper, news publication, or news source.

(ii) An employee of a radio broadcast station, television broadcast station, cable television operator, or wire service while operating as an employee as provided in this subparagraph, who can provide documentation of such employment.

(g) "Publish" means to communicate or make information available to another person or entity on a publicly available internet website.

(h) "Reasonable age verification methods" include verifying that the person seeking to access the material is eighteen (18) years of age or older by using any of the following methods:

(i) Provide a digitized identification card;

(ii) Require the person attempting to access the material to comply with a commercial age verification system that verifies in one or more of the following ways:

1. Government-issued identification; or

2. Any commercially reasonable method that relies on public or private transactional data to verify the age of the person attempting to access the information is at least eighteen (18) years of age or older.

(i) "Substantial portion" means more than thirty-three and one-third (33-1/3) percent of total material on a website, which meets the definition of "material harmful to minors" as defined by this section.

(j) "Transactional data" means a sequence of information that documents an exchange, agreement, or transfer between an individual, commercial entity, or third party used for the purpose of satisfying a request or event. Transactional data can include, but is not limited to, records from mortgage, education, and employment entities.

SECTION 3. (1) Any commercial entity that knowingly and intentionally publishes or distributes material harmful to minors on the internet from a website that contains a substantial portion of such material shall be held liable if the entity fails to perform reasonable age verification methods to verify the age of individuals attempting to access the material.

(2) Any commercial entity or third party that performs the required age verification shall not retain any identifying information of the individual after access has been granted to the material.

(3) (a) Any commercial entity that is found to have violated this section shall be liable to an individual for damages resulting from a minor's accessing the material, including court costs and reasonable attorney fees as ordered by the court.

(b) A commercial entity that is found to have knowingly retained identifying information of the individual after access has been granted to the individual shall be liable to the individual for damages resulting from retaining the identifying information, including court costs and reasonable attorney fees as ordered by the court.

SECTION 4. (1) The provisions of this act shall not apply to any bona fide news or public interest broadcast, website video, report, or event and shall not be construed to affect the rights of any news-gathering organizations.

(2) No internet service provider, or its affiliates or subsidiaries, search engine, or cloud service provider shall be held to have violated the provisions of this act for providing access or connection to or from a website or other information or content on the internet or a facility, system, or network not under that provider's control, including transmission, downloading, storage, access software, or other to the extent such provider is not responsible for the creation of the content of the communication that constitutes material harmful to minors. SECTION 5. This act shall take effect and be in force from and after July 1, 2023.