Discussion on the "Click if over 18"

[FightThePatent]

For those that attended the Legal Panel at Phoenix Forum, you heard some discussions (almost heated) between myself and Gregg Piccionelli (adult industry attorney) over the issues about “Click here if over 18”. The panel was composed of three attorneys and two non-attorneys (including myself who is definitely not a lawyer).

One of Gregg’s points in the discussion was about not allowing minors access to hardcore content.

On this point, I offered the following to the audience:

Children and adults could unwittingly view pornographic material by clicking on link results when searching on non-adult keywords in a search engine. It seems to be an unpopular approach by websites to put in a redirect method, that sends the surfer to the front of the website where there could be a webpage that has no graphic images, but a disclaimer that there is adult content, and the “click here if over 18” language found. I continued to say that keeping the images from immediately popping in a person’s face and redirecting to the front page could provide a defense in court.

Gregg countered to say that having the “over 18” language would not hold up in court, given the Extreme Associate’s case where they were able to prevail by showing to the court that a credit card was required to view the videos (online and DVD) .

I read the Extreme Associates verdict at http://news.findlaw.com/hdocs/docs/conlaw/...oc012005opn.pdf and the court’s opinion does show that having a credit card can protect adult content or at least provide defense against on obscenity charge.

As we all know, 16 & 17 year old kids do have access to credit cards via parents co-signing, and therefore kids could still be purchasing adult content. But the point is that it would come down to the parents to monitor what their children are purchasing with a credit card, so therefore a defensive-able position for the online/offline adult business.

A child or adult could enter the keywords of Amanda Rain into a search engine, because they were searching for an idea for a baby name, and the #1 result is for the pornstar Amanda Rain, which when clicked, opens up an adult related website. While some of the other search results show softcore pictures, it’s also possible that some could be displaying hardcore ones.

In a recent phone call conversation with Gregg after the show, he agreed with my point that blocking the side doors is a great way to keep these images from unwittingly appearing before a child or adult.

His only concern was that if webmasters believe that having the “Click if over 18” language was going to offer them a defensible position in court, then they are not understanding the law and the recent developments with the Extreme Associates case.

Gregg put things into historical context for me as he brought up the issues that the Phone Sex industry faced in dealing with these exact same issues of how to keep minors out. The common solution adopted by the phone sex operators was to say the message to the effect of “press 1 if you are over 18”… which is somewhat the equivalent to the internet version of “click here if over 18”.

Larry Walters created his Birthdate Verifier (http://www.birthdateverifier.com/) system that goes one step further to someone just clicking that they are over 18 after reading the disclaimer, but a person must enter their birthdate and swear that they are over 18 by a “digital signature” of an acknowledgement. It remains to be scene if this approach will work, but anyone who implements his system would most likely be blocking the side doors, therefore achieving the result of keeping the “bad stuff” from being easily accessed, but may not necessarily be the “get of jail card”.

To my knowledge, here hasn’t been a case yet about a non-member type website (ie. Free sites, TGP, MGP, FHG, etc) that got busted for obscenity that would have used the “click if over 18” defense. With the focus on shutting down obscenity through the Extreme Associates case, it does give some insight that pieces of the sky could be falling ontop of those that do have hardcore images/videos that are easily accessible to minors.

From my perspective, being able to block the side doors can go a long way to showing Congress that the adult online sector is concerned about children or even adults unwittingly encountering adult material. Putting in javascript redirects or using .htaccess to redirect could still allow search engine spiders to index your site, but having the redirects in place would ensure that adult content isn’t placed easily in view. With some simple programming, a surfer can be directed to the page that they would normally have viewed, once they did go through the front door.

In the future, should there be some kind of national “adult ID” that could possibly be used to validate the surfer, then the simple technological implementation of blocking side doors makes the blocking at the front door more effective.

There are certainly arguments to be made about what if the surfer is from outside the US, and how could they be verified. It could certainly mean that given tougher legislation and enforcement that adult sites and businesses are moved offshore.

While the “sky is falling story” has been around for years, it is somewhat cyclical that all the legal issues that faced the adult sector in the 70’s might be coming around for the 00’s.

My observations of what webmasters could do:

1) Don’t show hardcore – display softcore to entice people to become members that requires a CC, therefore giving you legal defenses as demonstrated by the Extreme Associates case. Then there are issues of the imagery that is shown publicly to be “tasteful”, or in context of other material (ie. text) so that it can’t be singularly focused on.

2) Block the side doors so the “bad images” don’t show up in little Johnny’s face such that he shows mommy, and mommy complains to people who lobby state and federal officials about how little Johnny saw porn from a search engine result.

3) Have front doors with no explicit imagery, that includes the “click if over 18 text”, to at least warn a surfer about what they might getting into if they did click the “over 18” or “enter” link. While this may ultimately prove to be ineffective in court, it at least shows your intent and interest to keep children out (and even adults who didn’t want to see porn). If a parent, law maker, or law enforcer can go into a search engine and type in non-adult keywords like “Amanda Rain” and be able to demonstrate that the “bad stuff” is easily accessible by children, then those websites that SEO’d themselves into the top rankings could end up being the new poster children for enforcement. The use of non-adult keywords like putting in “Amanda Rain” can turn up adult content. It’s very possible that the other words used on your adult related website could bring back your website links.

4) Consult with an attorney about the above observations and about what you could/should do to keep off the DOJ radar screen.


A long term prison sentence overlooked by a short-term vision for profits.

In the competitive marketplace for providing adult entertainment to web surfers, the companies that have legal opinions in place and implementation of defensive tactics to prevent minors from accessing their content, are the ones that will surely survive once the pieces of the sky hit the ground. While there is a sense of community where competitors can talk and even party together, it’s still a competition for the surfer’s dollar. Gregg summarized the legal dilemmas for webmasters by saying at one point, “It ain’t what you make, it’s what you keep.”

A good wrap-up of the Legal panel was written up by Connor Young at Ynot:
http://www.ynot.com/modules.php?op=modload...rticle&sid=9298

If you have gotten down this far, then I hope that this bit of information helps to guide you in your efforts to building and maintaining a successful business by being aware of the legal issues that you will face.

Fight the Novels!