HOUSE BILL 295

56th legislature - STATE OF NEW MEXICO - second session, 2024

INTRODUCED BY

John Block and Alan T. Martinez and Harlan Vincent

 

 

 

 

 

AN ACT

RELATING TO DECEPTIVE TRADE PRACTICES; ENACTING THE PROTECTION OF MINORS FROM DISTRIBUTION OF HARMFUL MATERIAL ACT; DEFINING TERMS; AUTHORIZING LIABILITY; CREATING A PRIVATE RIGHT OF ACTION.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Protection of Minors from Distribution of Harmful Material Act".

     SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Protection of Minors from Distribution of Harmful Material Act:

          A. "commercial entity" means a corporation, limited liability company, partnership, limited partnership, sole proprietorship, third-party vendor or other legally recognized entity;

          B. "material harmful to minors" means material that:

                (1) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal or pander to prurient interest;

                (2) exploits, is devoted to or principally consists of descriptions of actual, simulated or animated displays or depictions of any of the following, in a manner patently offensive with respect to minors:

                     (a) the nipple of the female breast, pubic hair, the anus, the vulva or genitals;

                     (b) touching, caressing or fondling of nipples, breasts, buttocks, the anus or genitals; or

                     (c) sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, excretory functions, exhibitions of a sexual act and any other sexual act; and

                (3) taken as a whole, lacks serious literary, artistic, political and scientific value for minors;

          C. "minor" means an individual under eighteen years of age;

          D. "newsgathering organization" means:

                (1) a newspaper, news publication or news source, printed or published on an online or mobile platform, of current news and public interest; or

                (2) a radio broadcast station, television broadcast station, cable television operator or wire service; and

          E. "reasonable age verification" means to confirm that a person seeking to access published material that may have a substantial portion of material harmful to minors is at least eighteen years of age.

     SECTION 3. [NEW MATERIAL] REASONABLE AGE VERIFICATION METHODS.--

          A. A commercial entity shall use a reasonable age verification method before allowing access to a website on which more than one-third of the content is material that is harmful to minors.

          B. Reasonable age verification methods include:

                (1) providing a government-issued identification; or

                (2) any commercially reasonable age verification method that holds an identity assurance level two as defined by the national institute of standards and technology.

          C. If a commercial entity performs a reasonable age verification, the commercial entity shall not retain any identifying information of the individual after access to the website has been granted.

     SECTION 4. [NEW MATERIAL] LIABILITY OF COMMERCIAL ENTITIES.--

          A. A commercial entity is liable for damages, court costs and reasonable attorney fees for:

                (1) failing to perform reasonable age verification for persons attempting to access a website on which more than one-third of the content is material harmful to minors;

                (2) damage resulting from a minor accessing material harmful to minors; or

                (3) retaining any identifying information on individuals after performing a reasonable age verification.

          B. The provisions of the Protection of Minors from Distribution of Harmful Material Act do not:

                (1) apply to a news or public interest broadcast, website video, report or event;

                (2) affect the rights of a newsgathering organization or employees of newsgathering organizations when acting within the scope of their employment; or

                (3) apply to cloud service providers or internet service providers to the extent that the cloud service provider or internet service provider is not responsible for the creation of the content that constitutes material harmful to minors.

     SECTION 5. [NEW MATERIAL] PRIVATE RIGHT OF ACTION.--A person claiming to be aggrieved by a violation of the Protection of Minors from Distribution of Harmful Material Act may maintain an action in district court for appropriate relief, including damages and reasonable attorney fees.

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