2022 Legal Survey: Attorneys Weigh in on Current Outlook for Adult

2022 Legal Survey: Attorneys Weigh in on Current Outlook for Adult

The last time XBIZ asked attorneys for their informed opinions on issues of interest and/or concern was two summers ago. Back then, the world was still reeling from the shock of a global pandemic, while the upcoming U.S. presidential election polarized public opinion intensely — another factor for which our report on the 2020 legal landscape had to account.

Fast-forward to 2022. Though the COVID variants continue to ebb and flow, the industry has found its footing in a post-pandemic new normal, even as impending midterm elections again spark contentious debates. This time the polarization is further compounded in the legal realm by the first wave — or tsunami — of rulings from the new conservative-majority Supreme Court.

Congress may try to use the FOSTA legislative formula to force online platforms to censor other types of disfavored speech.

In this uncertain environment, XBIZ has once again invited the best and brightest legal minds in the business to comment on which lawsuits, laws, legal novelties, regulations, practices and topics stand to impact their clients and the adult industry in the U.S. and abroad.

Some of the issues our interviewees cited are evergreen, like free speech and the First Amendment. Others are persistent, like FOSTA-SESTA, the EARN IT Act and ongoing struggles over 2257 regulations. Some, like recent decisions by the Roberts Court, and particularly the Dobbs decision on abortion, are timely but cast long shadows. Some issues involve the nitty-gritty of day-to-day business: IP, website compliance, LLCs for content creators, talent agency regulation and payment processing. Some are playing out beyond U.S. borders, like the U.K. Online Safety Bill, the EU Copyright Directive and the new Japanese contract law for adult content.

This 2022 Legal Survey provides a snapshot of present and future issues that anyone involved in the adult industry — from studios to webmasters to creators — will likely find worth keeping a close eye on.

Section 230 and the Courts: FOSTA/SESTA

Several respondents mentioned the U.S. courts as a central and determining factor in the 2022 legal landscape. Particularly at issue is how the courts interpret, or will interpret, both recent laws like FOSTA/SESTA and longer-standing decisions and statutes such as Lawrence v. Texas and numerous diverse state obscenity laws.

One issue that remains as crucial to the online adult industry as it was in 2020 is challenges to Section 230 — the so-called “First Amendment of the Internet” — and how judges rule in those cases. Originally passed as part of the Clinton-era Communications Decency Act, Section 230 shields platforms from being sued over third-party content.

Attorney and First Amendment expert Lawrence Walters of Walters Law Group noted that Section 230 issues “continue to dominate the headlines” and cited challenges to the 1996 law, which has allowed online platforms to thrive, as “likely to be the most consequential issues facing the adult entertainment industry in the short term.”

Chief among those cases, Walters said, is the constitutional challenge to FOSTA/SESTA now pending before the District of Columbia Circuit Court of Appeals. Walters is representing the Woodhull Freedom Foundation and fellow plaintiffs Human Rights Watch, the Internet Archive, Alex Andrews and Eric Koszyk in the lawsuit, alongside fellow attorneys Bob Corn-Revere of Davis Wright Tremaine, Aaron Mackey, Corynne McSherry and David Greene of digital rights nonprofit Electronic Frontier Foundation and Daphne Keller of the Stanford Cyber Law Center.

In March of this year, the U.S. District Court for the District of Columbia rejected the challenge, ruling that the U.S. government can continue enforcing the controversial legislation. The following month, Woodhull’s lawyers filed an appeal describing FOSTA/SESTA as “a controversial anti-trafficking law which devastated the sex worker community and damaged free speech more broadly.”

The foundation’s executive director, Ricci Joy Levy, noted “the dramatic chilling effect FOSTA would have on legally protected speech, as platforms, forums and resources used by sex workers and others were taken offline.

“In the years since, through both the data and lived experiences, we’ve seen how FOSTA has endangered the lives of sex workers,” Levy added. “With this law, the government has encouraged censorship that is otherwise prohibited by the First Amendment.”

Walters warned that FOSTA’s Section 230 exemption “sets a dangerous precedent for government censorship” and warned that “Congress may try to use the FOSTA legislative formula to force online platforms to censor other types of disfavored speech.”

The outcome of the Woodhull case, Walters told XBIZ, “will have lasting effects on future governmental efforts to tinker with Section 230 immunity. If Congress can force online platforms to censor sexually oriented speech under the guise of prohibiting prostitution and sex trafficking, no category of speech is safe from similar treatment.”

Attorney Corey Silverstein of Silverstein Legal also highlighted the Woodhull challenge to FOSTA/SESTA as a key case for industry observers to watch, and told XBIZ he anticipates “quite a bit of activity in the Federal Court of Appeals.”

Section 230 and the Courts: Lawsuits Against Platforms

FOSTA/SESTA set a precedent, in the form of an explicit carve-out of Section 230 protections, that is already spawning new attempts to create liability for platforms over user-generated content. UGC can include anything from an anonymously uploaded clip on a tube site to a performer or studio or fan posting a GIF on an open platform like Twitter or Reddit.

“We are already seeing various proposals designed to force platforms to moderate other types of online content under the penalty of criminal prosecution or ruinous lawsuits,” Walters explained, adding that a favorable ruling from the appellate court in the FOSTA case could nip these efforts in the bud.

“Regrettably,” Walters continued, “we are seeing more and more politicians who are seemingly unconcerned with stifling free speech on the internet.”

With several ongoing lawsuits targeting all major “open” platforms over UGC — “open” meaning platforms like Reddit and Twitter that are not specifically adult sites but that may host adult content — anyone sharing content should be concerned. These lawsuits seek to force open platforms to change their practices and terms of service and effectively serve as corporate enforcers of what would amount to a judicially driven ban on online sexual expression.

The impetus behind most of these lawsuits is coming from religiously motivated anti-porn groups that, Walters told XBIZ, “have engaged in a concerted effort to tie the adult industry to sex trafficking and prostitution in order to force platforms to effectively ban any sexually oriented speech. They repeat the same flawed statistics and myths which are dutifully reported by an incurious media that is more interested in sensationalism than accuracy.”

Unsurprisingly, some of the civil cases against platforms “seek to impose tremendous burdens on the platform operators to detect and remove any illegal user-submitted content,” Walters observed.

In the event the courts agree to impose these burdens, “access to adult content could be tremendously diminished and content creators could find it difficult to continue monetizing their content,” he added.

Shaping up to be “the key issue” in these civil cases, Walters said, is the question of what standard to impose when it comes to unlawful content on platform networks: a “constructive knowledge” standard, which assesses what platforms “should have known” or an “actual knowledge” standard, which addresses only what platforms did know.

If the constructive knowledge standard becomes law, Walters noted, “platforms will be required to engage in untenable content moderation and age verification efforts to vet every piece of user-submitted content before publication.”

The mother of all Section 230 carve-outs, FOSTA/SESTA, is no help when it comes to the knowledge conundrum. “It was drafted so poorly, the courts are split in determining which standard applies,” Walters explained. “The outcome of these cases, particularly on appeal or in the U.S. Supreme Court, will have a tremendous impact on the adult industry generally.”

Attorney Reed Lee noted that a dozen or so of these kinds of cases are now pending, and that several have already moved to or past the motion-to-dismiss stage.

“Because of the relief sought,” Lee told XBIZ, “many of these cases are subject to early appeal, and several are now pending at that stage. FSC is joining with the likes of the ACLU, Electronic Frontier Foundation and others in amicus briefs, and we expect more of them to come.”

The lawsuits against platforms, Lee observed, “seem to have been planned, engineered, and filed by two rather different sorts of plaintiffs’ legal groups. Predictably enough, NCOSE is openly behind the more porn-focused of the cases. But others are class-action suits for money damages brought by lawyers who seek to influence broad public policy through private tort litigation — i.e. civil wrongs, like hazardous product or pesticide claims. It will be interesting to see whether these cases diverge in their defense of the censorship claims that the platforms and their amici will forcefully assert.”

Corey Silverstein doubts that these strategies can succeed.

“I foresee any type of challenge that would attempt to outright force platforms such as Twitter and Reddit to outright ban adult content would be futile,” he told XBIZ, qualifying his optimism with “in the United States, anyway.”

Still, Silverstein admits that “we have seen some judges make horrible rulings related to Section 230 in various private actions. Unfortunately, I fear that we are going to see the judiciary make additional decisions that will cut into the heart of Section 230.”

Dobbs and the Supreme Court

Several respondents brought up recent decisions by the Roberts Supreme Court, rulings that clearly signal a swing to the right, towards positions long held by religious conservatives.

“The Supreme Court opinion in Dobbs is providing a green light for reactionary prosecutors to expand their hostile intentions towards what had been private sexual activity,” said Jeffrey Douglas, a noted criminal defense attorney and Free Speech Coalition board chair.

Douglas noted that Texas Attorney General Ken Paxton “recently said that he favors enforcing Texas’ anti-sodomy law and hopes the Supreme Court will reverse themselves in Lawrence v. Texas,” the landmark 2003 ruling that struck down the criminalization by several states of certain sexual acts even when performed in private by consenting adults.

“That kind of thinking is just very, very dangerous,” Douglas cautioned. “It means that things we all thought were off the table are now back on the table.”

While Douglas doesn’t anticipate the kind of obscenity prosecutions that occurred in the late 1980s and early 1990s, he remains concerned that the Dobbs decision and its aftermath could “breathe new life into the kind of attitudes that allowed those prosecutions to go forward.”

“The fact that private censorship groups like NCOSE are attempting to systematically erase the distinction between recorded consensual sexual activity and sex trafficking is very frightening,” Douglas told XBIZ. “It’s an attempt to do an end run around the First Amendment. This again creates an atmosphere that could encourage much more aggressive prosecution of the adult industry.”

Another sector that should be concerned about the Roberts Court’s swing to the right, Douglas said, is the pleasure products industry.

“Dobbs is extraordinarily frightening in that regard,” he said, “because it undermines the notion that the state needs to stay out of people’s beds.” He also remarked that there are now three justices explicitly disagreeing with the proposition that the government may not interfere with the “most intimate relationships,” and warned that we could see either new laws or renewed enforcement of existing laws against selling pleasure products.

“I think that the Dobbs opinion has provided fuel for the people who believe that the state has a right to oversee what occurs in our bedrooms — and really in our minds.”

Attorney Allan Gelbard concurred with Douglas that the Roberts Court is the No. 1 issue, particularly “what they are likely to do in the context of sexual privacy.” He said his main concern is that a Republican takeover of Congress could lead to an uptick in obscenity prosecutions, while the current “far, far right” Supreme Court is likely to overrule or at least limit the landmark 1973 Miller v. California decision, making it easier to prosecute pornography.

“And they are religiously motivated,” Gelbard continued. “That’s the real problem. The push against pornography has always been religiously motivated.”

Gelbard anticipates that, encouraged by the 6-3 hardcore right-wing majority in the Supreme Court, conservative judges down the ladder will likely “allow more and more violations of the Establishment Clause.”

The Establishment Clause of the First Amendment, Gelbard explained, “prevents the government from creating laws that favor religion over non-religion, or one religion over other religions. The Free Exercise Clause is the counter to that, which prevents the government from restricting the free exercise of religion. These two clauses are supposed to work together, and they basically create what we know as ‘the wall of separation between Church and State.’”

The Roberts Court, Gelbard said, does not appear to believe in such a wall and is likely to further erode the Establishment Clause. If that happens, Gelbard concluded, we will see “more legal restrictions on things that violate the SCOTUS majority’s religious concepts of morality, and that will includes sexual freedom, LGBTQ rights and, of course, also the creation of pornography.”

Section 230 and Congress

In addition to the legal challenges presented by FOSTA/SESTA and some law firms’ attempts to create potentially profitable liability for platforms, the potential passage of new laws to reform or repeal Section 230 could further erode its protections.

In an increasingly polarized Congress, opposition to Section 230 is that rare issue that boasts bipartisan support, including that of the current president and his predecessor.

As CNN reported in July 2021, “Biden has long railed against the law for its protection of social media companies from misinformation, whereas Trump has claimed that it leads to the censorship and suppression of conservative voices.”

Attorney Paul Cambria, who served as counsel in the Backpage case, told XBIZ: “I think there will be a push for legislation designed to hold website operators responsible for alleged trafficking and require age and consent verification.”

Cambria explained that “in the past, simply posting third-party content was not considered ‘publishing’” and predicted that “such legislation will be subject to challenge where it covers ambiguous speech that is not clearly promoting a criminal act.”

According to Lawrence Walters, bills like the EARN IT Act and the SAFE TECH Act “could also create legal chaos if passed into law.”

Some of these proposals, Walters noted, “would allow the states to enforce a wide variety of laws relating to underage content against online platforms, with each law requiring different elements to prove a violation. Attempted compliance would result in censorship of protected speech to reduce risk.”

Other proposals on the table “would strip away platform immunity if the user content is monetized.”

These laws, Walters said, “could dramatically impact adult-friendly platforms who may need to revamp their business models, or impose significant new burdens on publication of explicit content.”

Reed Lee emphasized the difference between federal legislation and state laws that seek to limit Section 230 protections.

“As a matter of principle,” Lee told XBIZ, “the nearly three dozen pending would-be Section 230 amendments each push and carve at the current provisions from different directions. On the one hand, many pending bills propose additional immunity carve-outs — some involving more FOSTA-type matters and others extending to other supposed ‘problems’ with online discourse. But, to the contrary, a few would adopt or move toward a sort of common-carrier, must-carry rule — think: the telephone system — for online platforms, e.g. ‘Twitter should not be able to block Trump.’”

Lee added that, although most observers do not seem to recognize that contradiction, “in-the-know legislators, staff and policy folks do.”

In the state legislatures, on the other hand, “scattered efforts continue to impose platform liability for online expression, but all suffer from serious, likely fatal preemption difficulties, at least to the extent that they exceed existing Section 230 immunity carve-outs,” Lee added.

For attorney Maxine Lynn, the persistence with which lawmakers reintroduced the EARN IT Act in early 2022, after failing to pass it in earlier iterations, shows that some politicians will continue to push for this bill and for others embodying similar policies.

“Rather than deal with true sex trafficking,” Lynn told XBIZ, “these kinds of laws muddy the line between trafficking, and consensual pornography and sex work, in an attempt to outlaw sex work under the guise of protecting against trafficking.”

Lynn predicts that even though the current version of the bill will likely fail to become law by year’s end, “unfortunately, it will probably be reintroduced in 2023 or thereafter, continuing to haunt the adult industry and sex workers in general.”

Corey Silverstein anticipates that, as the 2022 election season heats up, “there will be plenty of politicians seeking election or re-election, making both pro- and anti-Section 230 campaign promises.”

The warping effect of the election year, he added, means that “lawmakers will continue to push their agendas that include major restrictions on free speech under the false pretense that the laws are meant to tackle ‘trafficking.’” This will make it extremely hard for any congressperson to not support a law “that has a scary title, just like they did in the instance of FOSTA/SESTA.”

Silverstein noted the irony of the fact that “almost all of these politicians will be relying heavily on social media to push their election campaigns while they disregard the fact that most of those same platforms would not exist were it not for Section 230.”

A Novel ‘Civil Bounty System’

Another recent legal novelty is Louisiana’s HB142. Signed into law on June 15 and set to take effect on January 1, 2023, the new law creates not only new liability for adult platforms, with the usual challenges to Section 230 immunity, but also a “civil bounty system” for informers.

Although HB142 technically “requires age verification measures for pornography sites, and creates a civil remedy against commercial entities that knowingly distribute and intentionally publish porn to minors over the internet,” Maxine Lynn explained, the law is, in fact, “a child of the ‘porn is a public health crisis’ baloney.”

Larry Walters elaborated: “As with any of these civil bounty system laws, there is an open question as to who can be sued in a pre-enforcement challenge. Ordinarily, the state attorney general is the defendant in a challenge to a state law. However, if the law can only be enforced by citizen complaints in civil court, a court would need to wrestle with whether any particular named defendant is properly included in a case filed before the law was actually enforced.”

This means the adult industry “may need to wait for a civil complaint to be filed and then focus its efforts and resources on challenging the constitutionality of the law in that particular case,” Walters said. “In the meantime, the law serves to create a chilling effect on protected speech for companies publishing adult content in Louisiana.”

Corey Silverstein told XBIZ that he is “not surprised to see another conservative state pass a law like this,” and that he anticipates “that a constitutional challenge will immediately follow the state of Louisiana’s attempt to enforce this blatant attempt to ignore the First Amendment and Section 230.”

For Reed Lee, the novel “bounty” system “not only enables untold loonies, but it removes public prosecutors and state attorneys general from the picture. So we can’t sue them in advance. And if potential private enforcers are smart enough to keep quiet before they seek their ‘bounties,’ we can’t sue them either, in advance, i.e. until we know who they are. The relevant law here is incredibly nuanced — standing to sue, federal abstention, res judicata, race to judgment — but there is reason to believe that effective federal court challenges will still be possible.”

According to Lee, the FSC is currently studying this matter.

“It is likely that, before this law takes effect, there will be a viable litigation plan in place and available to industry defendants to keep the federal courts in the picture,” Lee concluded.

The 2257 Battle

In April 2021, the Free Speech Coalition announced the end of the long-running legal battle over warrantless 2257 inspections, with a ruling in favor of the FSC standing as final after the federal government failed to appeal it before the deadline.

According to the FSC, this meant that the FBI can no longer demand access to studios’ and creators’ records by way of random inspections.

“You should continue to follow all record-keeping requirements under 2257 as currently written,” the FSC advised at the time, “but the records cannot be accessed without a warrant issued by a court upon probable cause.”

Sections 2257 and 2257A of the U.S. Criminal Code were “declared unconstitutional under both the First Amendment and the Fourth Amendment,” the FSC statement added. “While this judgment does not apply to all producers, this victory at the second-highest court in the land is precedent-setting. This precedent should be very helpful to other producers if further litigation occurs.”

Adult industry producers, moreover “are now less likely to be charged with a crime under 2257 or 2257A and even less likely to be successfully prosecuted.”

Two months later, FSC contracted with powerful District of Columbia lobbying firm Clarity Consulting to “help manage the over two dozen bills targeting the adult industry and internet freedom more generally, as well as address banking discrimination and 2257 regulations.”

“FSC is proposing to the Justice Department to revise the 2257 regulations following the Fourth Amendment victory in the FSC 2257 case,” Jeffrey Douglas told XBIZ. “We might be able to create 2257 regulations that benefit the industry rather than those that are designed to harm it.”

“We got the right Justice Department at the right time, and we may be able to do something,” Douglas added, referring to the negotiations with the department currently led by Biden appointee Merrick Garland.

IP and the CASE Act’s “Small Claims Court” for Copyright Cases

Another legal development to which industry lawyers are paying attention is the newly created Copyright Claims Board, a “small claims court” for copyright disputes under $30,000 which began accepting cases for review in June.

Congress established the three-person CCB tribunal by passing the Copyright Alternative in Small-Claims Enforcement Act of 2020. The CASE Act was stealthily inserted as “pork” into Donald Trump’s thematically unrelated final COVID relief package, after his November 2020 election loss.

The tribunal is comprised of lawyers David Carson, Monica McCabe and Brad Newberg, and is described on its website as “a voluntary alternative to federal court.”

The new CCB site declares that the tribunal is “an efficient, streamlined way to resolve copyright disputes involving claims seeking damages of up to $30,000 and is designed to be less expensive and faster than bringing a case in a federal court. The Copyright Office has developed procedures to handle these disputes as well as ‘eCCB,’ an electronic filing and case management system.”

As Larry Walters explained, this means the CASE Act “provided a new option for content creators who are unable or unwilling to spend substantial resources pursuing a copyright infringement case in federal court.”

The new law allows, after a simple $100 filing fee, for an administrative claim to be filed seeking up to $30,000 in damages.

Publishers and platform operators, Walters warned, “need to be watchful for any claims served on them, as there is a limited ‘opt out’ period in which the case can be moved to federal court, if desired.”

According to the attorney, only time will tell how effective this new option may be for copyright holders. “Often, pirates are located in jurisdictions outside the U.S. and may simply ignore legal proceedings in this country. Enforcing a U.S. judgment against a foreign defendant can be a costly endeavor. Other infringers may not have sufficient assets to satisfy any judgment.”

Anyone wishing to file one of these claims, Walters cautions, should “carefully select potential targets and pursue only when a likelihood of recovery and payment of a judgment exists.”

Corey Silverstein predicts that the adult industry will see more copyright infringement claims now that the CASE Act is in effect. However, he remains “quite pessimistic about the CASE Act and maintains major concerns about the judiciary being removed from the process in CASE Act cases.”

As for potential defendants, Silverstein thinks that given the peculiarities of the novel system, most would choose “to opt out of the process.”

As Maxine Lynn sees it, the new tribunal’s supposed accessibility could turn out to be deceptive in practice.

“Even though the process is simpler than a regular court proceeding,” she noted, “it’s likely still complex enough that many people will still need, or choose to have, an attorney. That, coupled with the $30,000 damages cap, means that the new ‘small copyright claims court’ may not be particularly useful for some, especially small businesses and individual performers, as the cost/benefit analysis won’t work out in many cases.”

Another disadvantage is that the new system offers no appeal process, “which is problematic when you don’t agree with an outcome of a legal action,” Lynn noted.

She added, however, that “for those who go for it without an attorney — or when the legal fees don’t mount too high — the process may create a new avenue to stop pirates in their tracks and deter additional copyright theft.”

Webmaster Compliance

Recent state, national and international legal changes that may affect webmasters are also on the radar of industry lawyers.

“Website owners can no longer sit back and think that their 2020 — or older — terms and conditions and privacy policies are still sufficient,” attorney Nick Zargarpour told XBIZ, explaining that “many new laws have gone into effect over the past few years, and so websites must adapt with them.”

Zargarpour noted that “California’s version of the EU’s GDPR has gotten the ball rolling, as now there are laws in different states that webmasters must reference in managing their websites. All these states have different rules and procedures.”

This is an area, according to the attorney, where “you need professional help to avoid severe financial penalties, which can come from the government or private lawsuits.”

In March 2022, Utah became the fourth state — besides California, Virginia and Colorado — to pass consumer privacy legislation. The Utah Consumer Privacy Act, closely related to the Virginia Consumer Data Privacy Act, gives businesses operating in the state until the end of 2023 to comply.

The UCPA, Zargarpour explained, “provides protection to consumers so that they can look at the information that is being collected by websites about them. It also allows them, to a certain extent, to have it deleted.”

Zargarpour advised that in order to be compliant, webmasters “now have to make sure that they know what information is being collected through their website and where it’s being collected — and that includes third-party vendors like credit card companies, hosting companies and others.”

Webmasters not following these rules or regulations, he added, “are in danger of liability and they can be sued for not deleting that information when the consumer formally requests it.”

Zargarpour noted, however, that these rules are designed to target “bigger websites, with different states having different dollar-amount caps or traffic caps.” He added that this regulatory attempt by individual states to address a global, decentralized phenomenon like the internet, creates for webmasters and their counsel “a patchwork of laws that makes it difficult for webmasters to comply or figure out liability. So you have to tread lightly or face expensive and time-consuming litigation.”

The International Picture: The UK Online Safety Bill

Earlier this month, the U.K.’s controversial Online Safety Bill was removed from the House of Commons schedule, reportedly to be revisited sometime in the fall.

The last debate before the postponement included a motion by anti-porn activist and Labour MP Dame Diana Johnson, chair of the Home Affairs Committee, to insert amendments that, in her words, “would place a legal duty on online platforms hosting pornographic content to combat and remove illegal content through the specific and targeted measure of verifying the age and consent of every individual featured in pornographic content on their sites.”

Had Johnson’s amendments passed, they would have implicitly created a legal category of “pornography websites,” which would then have been subject to record-keeping mandates.

Such mandates could potentially also force open platforms such as Twitter or Reddit, which tolerate adult content, to reevaluate their content policies in order to avoid being categorized as “pornography websites” and thereby forced to keep records of the age and identity of anyone appearing on any piece of sexual content posted onto the site.

The Online Safety Bill, Maxine Lynn explained, would also allow “an arm of the U.K. government to define certain legal speech as ‘harmful,’ and requires social media sites, search engines, and similar platforms to establish and publish procedures for dealing with that ‘harmful’ speech.”

These procedures “may include removal, deleting, and hiding of content, among other things,” she added. “It also requires age verification for pornography.”

In Lynn’s opinion, the government “flagging categories of legal speech as harmful, and requiring the policing of such by Big Tech, threatens the existence of free speech, and certainly, the adult industry.”

The bill, Lynn said, goes far beyond ensuring that minors cannot access adult material, “requiring legal speech that fits into a government-defined classification of ‘harmful’ to be censored by tech companies. This is a dangerous path, giving way too much power to the government and to Big Tech.”

The Japanese Contract Law

Another international topic highlighted by the industry attorneys with whom we spoke was the new Japanese law that enables performers in adult content to legally void their contracts. There are now attempts to push similar laws in France and other places, which could even include the U.S.

The law is the result of a sensationalized legislative debate earlier this year about lowering the age of legal majority in Japan, which quickly devolved into a campaign about adult performers aged 18-19.

The age-of-majority bill was passed unanimously in a plenary session of the nation’s House of Representatives in May, and subsequently passed in June at a plenary session of the House of Councillors, the upper house of Japan’s legislature.

Japanese newspaper The Mainichi described the new law as “marking a step in efforts to end abuses of those involved in the industry in Japan.”

The law “allows people who agree to appear in pornographic content to terminate their contracts at any time before the film’s public release without conditions, as well as up to a year afterward,” reported The Mainichi. “However, as a special measure, a review period of up to two years after a film’s release will apply for the first two years after the law’s promulgation. If the contract is terminated, video vendors are obliged to recover the products and delete the footage, and cannot claim compensation from the performers.”

The new law also mandates that “a month must pass between the signing of a contract and the filming of the video, and four months between the filming of the video and its public release,” noted the newspaper. “This gives enough time for those who appear in them to reconsider whether they still want to make the film and release it. Producers must additionally provide a written explanation to performers describing the nature of the content, including specific sexual acts required during filming, and the fact that they may be identifiable.”

Punishment for violating the new law includes hefty fines and a prison term of up to three years.

The new Japanese law, Larry Walters told XBIZ, should already present a particular concern for U.S.-based companies publishing Japanese content.

“The idea that an adult performer can void their contract, even if entered into willingly for valuable consideration, is foreign to basic U.S. contract law,” he explained. “Companies that relied on model releases to support the legality of such content now face uncertainty.”

Although for Walters it would be “a dangerous trend if followed in other jurisdictions,” he also considers it unlikely that this approach could be successfully imported to the U.S., particularly given “our capitalist roots.”

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