§ 51-07-32 — Liability for publishing or distributing sexual material harmful to minors - Age verification requirement - Damages

Age verification requirement - Damages.
1. As used in this section:
a. "Commercial entity" includes a corporation, limited liability company, partnership,
limited partnership, sole proprietorship, or other legally recognized business
entity.
b. "Distribute" means to issue, sell, give, provide, deliver, transfer, transmute,
circulate, or disseminate by any means.
c. "Minor" means an individual under eighteen years of age.
d. "News-gathering organization" means an employee of a:
(1) Newspaper, news publication, or news source, printed or on an online or
mobile platform, of current news and public interest, who is acting within the
scope of employment and can provide documentation of employment with
the newspaper, news publication, or news source; or
(2) Radio broadcast station, television broadcast station, cable television
operator, or wire service, who is acting within the scope of employment and
can provide documentation of employment with the radio broadcast station,
television broadcast station, cable television operator, or wire service.
e. "Publish" means to communicate or make information available to another person
on a publicly available internet website.
f. "Reasonable age verification methods" includes verifying the individual seeking to
access the material is eighteen years of age or older by using:
(1) A digitized identification card; or
(2) Requiring the individual attempting to access the material to comply with a
commercial age verification system including the use of:
(a) Government-issued identification;
(b) A commercially available database regularly used by a business or
government entity for the purpose of age and identity verification; or
(c) Any commercially reasonable method that relies on public or private
transactional data to verify the age of the individual attempting to
access the information is eighteen years of age or older.
g. "Sexual material harmful to a minor" includes material that:
(1) The average individual applying contemporary community standards would
find, taking the material as a whole and with respect to a minor, is designed
to appeal to or pander to the prurient interest;
(2) In a manner patently offensive with respect to a minor, exploits, is devoted
to, or principally consists of descriptions of actual, simulated, or animated
displays or depictions of:
(a) An individual's pubic hair, anus, genitals, or the nipple of the female
breast;
(b) Touching, caressing, or fondling of nipples, breasts, buttocks, anuses,
or genitals; or
(c) Sexual intercourse, masturbation, sodomy, bestiality, oral copulation,
flagellation, excretory functions, exhibitions, or any other sexual act;
and
(3) Taken as a whole, lacks serious literary, artistic, political, or scientific value
for a minor.
h. "Substantial portion" means if more than thirty-three and one-third percent of total
material on a website is sexual material harmful to a minor.
i. "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. The term
includes records from mortgage, education, and employment entities.

2. A commercial entity that knowingly publishes or distributes sexual material harmful to a
minor on the internet from a website that contains a substantial portion of the material
must be held liable if the entity fails to perform reasonable age verification methods to
verify the age of an individual attempting to access the material.
3. A 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.
4. A commercial entity found to have violated subsection 2 or 3 is liable for damages.
5. A civil action may be brought against any commercial entity, or third party that
performs the required age verification on behalf of the commercial entity, by:
a. A parent or guardian whose minor child was allowed access to the material in
violation of subsection 2; or
b. An individual whose identifying information is retained in violation of subsection 3.
6. An individual authorized to bring a civil action under subsection 5 may seek and the
court may award:
a. An injunction to enjoin continued violation of this section;
b. Compensatory and exemplary damages; and
c. Costs and fees, including reasonable attorney fees.
7. This section 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 organization.
8. An internet service provider or its affiliates or subsidiaries, a search engine, a cloud
service provider, or an application store, may not be held to have violated this section
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 the provider's control,
including transmission, downloading, intermediate storage, access software, or other
forms of access or storage to the extent the provider is not responsible for the creation
of the content of the communication that constitutes sexual material harmful to a
minor.