SB 938

This bill requires explicit content distributors to provide prominent, clear, and conspicuous warning labels on explicit content. “Explicit content” is defined in the bill to mean visual, written, or auditory material that is all of the following: 1) intended for an adult audience; 2) lacks serious literary, artistic, political, or scientific value; and 3) depicts or describes sexual conduct in a patently offensive way. A “distributor” is defined as a person that provides, sells, or publishes explicit content for profit or as part of a commercial service. The warning label must use language that is substantially similar to the following: “WARNING

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This material contains explicit content that may be harmful or offensive. Viewer discretion is advised. Not intended for minors.” For explicit content in print publications, the bill requires distributors to provide the warning label in bold font of at least 20-point size on the cover, the front page, or the packaging of the explicit content. For explicit content on digital platforms, the bill requires distributors to provide the warning label in high-contrast, bolded text and requires that the warning label 1) appear before the user accesses the explicit content and remain visible to the user for at least 10 seconds or until the user acknowledges the warning label through interaction with the digital platform; and 2) occupy at least two-thirds of the user’s screen. In addition, distributors of explicit content on digital platforms must ensure that each piece of explicit content they provide contains in the explicit content’s metadata “WisconsinExplicitContentWarning.”

The Department of Justice must investigate violations of the bill’s provisions, and DOJ may bring an action to recover a forfeiture or for injunctive relief. Before DOJ initiates an action, DOJ must provide the distributor with notice identifying the alleged violation. For an initial violation, a distributor is subject to a forfeiture of up to $2,500, except that, if the distributor cures the violation within 14 days of receiving the DOJ notice, the distributor is subject to a forfeiture of up to $500. For a second or subsequent violation, a distributor is subject to a forfeiture of twice the amount of the forfeiture imposed on the distributor for the most recent prior violation. If a court imposes a forfeiture for a violation, the court must also impose a surcharge in the amount of 50 percent of the amount of the forfeiture. The proceeds of the surcharge are appropriated to DOJ for investigation and enforcement of violations of the bill’s provisions.

The bill also requires DOJ to create a notice form to be used by individuals and organizations to inform distributors of the distributor’s alleged violation of the provisions of the bill. A person who believes a distributor has violated the provisions of the bill may complete this notice-of-violation form and provide it to the distributor and DOJ. DOJ must, within 45 days of receiving the completed form, inform the person whether DOJ will bring an enforcement action against the alleged violator. If DOJ does not bring an enforcement action within 60 days after receiving the completed notice-of-violation form and the distributor has not cured the alleged violation, the person may bring an action against the distributor for damages or injunctive relief or both. If the person prevails, the person is also entitled to an award of court costs and reasonable attorney fees.