House Bill 1363

(As Passed the House)

AN ACT TO AMEND SECTION 11-77-3, MISSISSIPPI CODE OF 1972, TO DEFINE THE TERMS "CHILD PORNOGRAPHY" AND "OBSCENE MATTER" AS USED UNDER STATUTES CREATING A CIVIL LIABILITY FOR DISTRIBUTION OF CERTAIN MATERIALS ON THE INTERNET BY COMMERCIAL ENTITIES; TO CREATE NEW SECTION 11-77-6, MISSISSIPPI CODE OF 1972, TO AUTHORIZE COMMERCIAL ENTITIES THAT KNOWINGLY AND INTENTIONALLY PUBLISH SUCH MATERIAL ON THE INTERNET TO BE HELD CIVILLY LIABLE FOR DAMAGES TO INDIVIDUALS; TO AMEND SECTION 11-77-7, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT AN INTERNET SERVICE PROVIDER AND OTHER ENTITIES PROVIDING INTERNET CONNECTIVITY MAY NOT BE HELD LIABLE TO THE EXTENT THAT THE PROVIDER IS NOT RESPONSIBLE FOR CONTENT CREATION; TO CREATE NEW SECTION 11-77-9, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE SEVERABILITY OF PROVISIONS; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 11-77-3, Mississippi Code of 1972, is amended as follows:

11-77-3. The following words shall have the meanings described herein:

(a) "Child pornography" or "child sexual exploitation" means those acts that are included in the definition of "sexually explicit conduct" under Section 97-5-31.

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

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

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

( * * *de) "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.

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

( * * *fg) "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.

(h) "Obscene matter" has the same meaning as provided under Section 97-29-103(1).

( * * *gi) "Publish" means to communicate or make information available to another person or entity on a publicly available Internet website.

( * * *hj) "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.

( * * *ik) "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.

( * * *jl) "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 2. The following shall be codified as Section 11-77-6, Mississippi Code of 1972:

11-77-6. (1) A commercial entity that knowingly and intentionally publishes or distributes obscene matter or matter that depicts, describes or promotes child pornography or child sexual exploitation on the Internet may be held liable to an individual for nominal damages, actual damages, court costs and reasonable attorney fees as ordered by the court.

(2) A commercial entity that violates this section in a manner that satisfies the legal standards for the imposition of punitive damages may be held liable to an individual for punitive damages.

(3) Individual claims that satisfy the generally applicable legal standards for joinder or class action may be combined into a single action.

SECTION 3. Section 11-77-7, Mississippi Code of 1972, is amended as follows:

11-77-7. (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~~ affiliate or subsidiary of an Internet service provider, search engine, or cloud service provider shall be held to have violated the provisions of this * * *~~act~~ chapter solely 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, providing 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, obscene matter, or matter that depicts, describes or promotes child pornography or child sexual exploitation.

SECTION 4. The following shall be codified as Section 11-77-9, Mississippi Code of 1972:

11-77-9. If any one or more provisions, sections, subsections, sentences, clauses, phrases or words of this chapter or the application thereof to any person or circumstance is found to be unconstitutional, the same is declared to be severable, and the balance of this chapter shall remain in effect.

SECTION 5. This act shall take effect and be in force from and after July 1, 2024, and shall stand repealed on June 30, 2024.