A bill

to amend the South Carolina Code of Laws by adding Section 39-5-190 so as to PROVIDE DEFINITIONS, TO PROVIDE THAT IT IS UNLAWFUL FOR AN OPERATOR TO MAKE A PORNOGRAPHIC WEBSITE AVAILABLE TO PERSONS UNDER THE AGE OF EIGHTEEN, TO PROVIDE THAT THE ATTORNEY GENERAL SHALL CREATE CERTAIN PROCEDURES, AND TO PROVIDE FOR A PRIVATE RIGHT OF ACTION.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1.Article 1, Chapter 5, Title 39 of the S.C. Code is amended by adding:

Section 39-5-190.(A) As used in this section:

(1) "Commercial entity" means corporations, limited liability companies, partnerships, limited partnerships, sole proprietorships, and other legally recognized entities.

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

(3) "News-gathering organization" means 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, who can provide documentation of such employment with the newspaper, news publication, or news source or an employee of a radio broadcast station, television broadcast station, cable television operator, or wire service while operating as an employee, who can provide documentation of such employment.

(4) "Online application" means an online software program, especially downloaded onto a mobile Internet capable device.

(5) "Online communication" is a way in which individuals, as well as computers, can communicate with each other over a computer network or the Internet.

(6) "Operator" means a person responsible for a website, online application, or other means of publicly accessible online communication, that is pornographic, created either solely or principally to be pornographic, and made available either free of charge or for a fee.

(7) "Person" means an individual, partnership, corporation, trust, estate, cooperative, association, or the like.

(8) "Pornographic" means possessing or exhibiting images, actual or simulated, that are the ultimate act of genital, anal, or oral sexual intercourse, masturbation, lewd exhibition of the genitals, or any obscene matter or activity.

(B)(1) It is unlawful for an operator to make any website, online application, or other means of publicly accessible online communication that is pornographic, created either solely or principally to be pornographic, and made available either free of charge or for a fee, accessible to persons under the age of eighteen in this State.

(2) The Attorney General shall prescribe certain age-verification procedures for operators to follow in order not to violate this section.

(C)(1) By July 1, 2023, the Attorney General shall create procedures in accordance with subsection (B), and make the procedures available on the Attorney General's webpage or website and shall initiate enforcement procedures.

(2) An operator who violates this section is liable to the State for a civil penalty in an amount not to exceed fifty thousand dollars for a first offense and in an amount not to exceed two hundred thousand dollars for a second offense. The Attorney General may:

(a) seek an injunction to prevent or restrain a violation of this section; or

(b) bring suit to recover the civil penalty imposed.

(3) In determining the penalty, the court shall consider the amount necessary to deter future violations.

(4) The Attorney General may recover reasonable expenses incurred in obtaining an injunction or civil penalty under this section, including court costs and reasonable attorney's fees.

(5) The Attorney General shall notify the United States Justice Department concerning the operator in violation, specifying reasons for the violation, and include any information as is considered appropriate including possible subsequent violations of United States Code.

(D)(1) There is created a private right of action against any commercial entity that knowingly and intentionally publishes or distributes pornographic materials on the Internet on a website that contains a substantial portion of such material, and 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 may 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 subsection is 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 is liable to the individual for damages resulting from retaining the identifying information, including court costs and reasonable attorney fees as ordered by the court.

(4)(a) This subsection does not apply to any bona fide news or public interest broadcast, website video, report, or event and may not be construed to affect the rights of any news-gathering organizations.

(b) An Internet service provider, or its affiliates or subsidiaries, search engine, or cloud service provider may not be held to have violated the provisions of this subsection 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, but not limited to, transmission, downloading, intermediate storage, access software, or other to the extent the provider is not responsible for the creation of the content of the communication that constitutes pornographic material.

SECTION 2.This act takes effect upon approval by the Governor.

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