Most blogs don’t have to worry about the legal issues that come with hosting adult content on their site. The content on blogs in most genres, though it can be coarse and vulgar at times, simply doesn’t rise (or sink) to a level where you need to worry about the legal issue along this front.
However, more and more bloggers are beginning to wade into this territory. These include sex blogs that openly discuss mature issues, photographers and artists whose work often pushes boundaries in this area and even, on some occasions, unrelated blogs that discuss tangential issues that require the hosting of adult content.
No matter which category you fall in or even if you don’t plan on ever hosting any adult material, it’s important to know where the rules like currently and what is expected of you as a publisher. However, it’s also very important to note that, even more so than with other discussions on law, this one is aimed at a U.S. audience and you will definitely want to check your local laws to make sure you comply with them.
So what are the rules with hosting adult content on your site? There simply too many to cover all of them in this article but here are some of the fundamentals you need to be aware of.
First, The Good News
In the U.S., the First Amendment protects your right to post most adult content on your blog. The courts have generally ruled that, outside of a narrow exception for obscene material (more on that later), you have the right to post and distribute adult material on your site (barring, of course, copyright or other issues).
As such, you generally have wide protection for posting non-obscene adult content on your site, at least in the U.S. Bear in mind though that your site can be viewed in nearly any jurisdiction on the planet and can be hosted almost anywhere too. As such, you need to be wary of issues in other countries, even if you are a U.S. citizen.
That being said though, there are still some additional concerns and requirements that come with adult content and here are some of the big ones you need to think about before you publish.
1. Does Your Host Allow Adult Content?
First off, even before you delve into the legal issues, you need to find out if putting adult content on your site is a violation of your hosts’ terms of service. Many hosts, for a variety of reasons, don’t allow adult content on their servers and putting it there can get your site shut down, even if the content was otherwise legal.
So, before you take step one, find out what your host’s rules are so you don’t accidentally break a contract you’ve already signed. However, even if you don’t plan on posting adult material to your site, it’s probably a good idea to stick with a host that allows it, just to ensure no one else is falsely judging your content.
2. Is the Content Obscene?
The Supreme Court, in 1957, found that some speech is so egregious and so harmful that it is not protected by the 1st Amendment. No matter how one feels about this viewpoint, it has been upheld in U.S. law and posting content that is obscene is a crime.
However, determining what content is obscene is a tricky matter. The current test, as laid down in Miller v. California, reads as follows:
(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Obviously, there is a lot of room for interpretation there and two people can look at the same set of facts and draw different conclusions. However, in general most pornography is not considered obscene by modern standards. Still, given that it is based largely on community standards and those vary wildly, it’s easy to see how there could be a problem.
Fortunately, there are relatively few obscenity prosecutions these days and the few that there are, generally, are for exceptional material.
2. Is it Child Pornography?
This one is fairly straightforward. You should not post any suggestive or questionable images of minors, clothed or unclothed. Also, if someone does post such images to your site, for example as a comment, you should report the act to the National Center for Missing and Exploited Children CyberTipline.
Your best bet is that, if it seems remotely gray area in this area, don’t post it. Period.
3. Do I Have to Perform Age Verification?
Though Congress has made several runs at requiring age verification on sites that host content considered “Harmful to Minors” they all, including the most recent, have been shot down on First Amendment grounds. This includes the Child Online Protection Act (COPA), which suffered a crushing blow at the hands of the Supreme Court.
So, legally at least, there is no obligation to verify the age of your visitors. That being said, it’s still probably a good thing to make sure that adult content does not accidentally land in the hand of minors and there are age verification plugins for WordPress that can help do just that.
4. What About Record-Keeping Requirements?
Current Federal law requires that individuals and companies involved in the production of pornography, to maintain certain records on performers including their legal name, date of birth and any other name they have gone by. However, according to the EFF, the Department of Justice has expanded the definition of “producer” to also include “secondary producers”, a list that includes people who post such images and content online.
As you can see in the link above, there’s a lot of debate and legal wrangling over this issue, including whether non-commercial sites are exempt from the requirements (it is implied they are but there is some debate) and the overall legality of the rules is being challenged.
Also, it’s worth noting that nudity alone does not trigger the record keeping requirement. The image must be considered “sexually explicit” under the law.
All in all, these are just some of the bigger issues that come with posting adult content to your site. Given all of the new legal headaches that emerge, it may be worth asking yourself if it’s worth the hassle.
If you do, just be sure to understand all of the laws that affect this type of content, specifically the ones in your region, and choose a host that is friendly to adult content. Google’s BlogSpot is a good example.
If you do that, you most likely will be safe.
Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private (However, please mention that it is a suggestion for The Blog Herald. This column will be determined largely by your suggestions and questions so let me know what you want to know about.
I am not an attorney and nothing in this article should be taken as legal advice.