ASSEMBLY, No. 3757
with Assembly Floor Amendments
(Proposed by Assemblyman ALBANO)
ADOPTED: MARCH 16, 2009
This bill enacts the “Social Networking Safety Act,” which provides civil penalties against individuals who transmit sexually offensive communication through a social networking website.
The amendments change the definition of “sexually offensive communication” to include any communication which a reasonable person would believe is intended to solicit or request a person to engage in sexual activity, and any communication depicting or describing nudity, sexual conduct or sexual excitement when it: (1) predominantly appeals to a prurient interest in sex; (2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material or conduct for minors; and (3) taken as a whole, is without serious literary, artistic, political or scientific value for minors. This definition eliminates the cross reference to obscene material as defined in N.J.S.2C:34-3 when discussing the type of communication.
These floor amendments clarify that this prohibition applies to a person transmitting a sexually offensive communication through a social networking website to a person located in New Jersey who the actor knows or should know is less than 13 years of age or is at least 13 but less than 16 years old and at least four years younger than the actor.
The amendments also provide that the prohibition against transmitting sexually offensive communication through a social networking website does not apply to any provider or user of an interactive computer service with respect to information provided by another information content provider. The amendments define “interactive computer service” as any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions. The amendments define: (1) “information content provider” as any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service; and (2) “Internet” as the international computer network of both federal and non-federal interoperable packet switched data networks.
In addition to prohibiting sexually offensive communication, this bill as originally introduced also prohibited the transmittal of any “abusive communication” through a social networking website. The floor amendments eliminate the prohibition against “abusive communication” and replace it with a prohibition against transmitting “harassing communication” through a social networking website. The amendments define “harassing communication” as any communication which is directed at a specific person, serves no legitimate purpose and which a reasonable person would believe is intended to threaten, intimate or harass another person. The amendments also eliminate the provision that the transmittal of the harassing communication be to a person who is, or who the actor reasonably believes is, less than 18 years of age.
The floor amendments also change the definition of “social networking website” to eliminate the requirement that the website be accessible to third parties and on which users under the age of 18 may post personal information. The new definition provides that it includes any website located on the Internet on which users located in New Jersey may create a searchable profile, page or similar account that is accessible to other users or visitors to the website and share personal information with other users or visitors and through which users or visitors may communicate directly with such users.
In addition to providing civil penalties to for the transmittal of sexually offensive communication through a social networking website and prohibiting the transmittal of harassing communication, this bill makes it a violation of the Consumer Fraud Act, N.J.S.A.56:8-1 et seq., for a social networking website operator to fail to revoke the website access of any user or third party upon receipt of information that the user or third party has transmitted offensive communications. The floor amendments eliminate the term “third party” and replace it with “visitor.” “Visitor” is defined as a person other than the user or the operator, or an employee of the operator who accesses a social networking website. The amendments clarify that a “user” is a person located in this State who establishes on a social networking website a profile, page or similar account that is accessible to other users or visitors to the website and on which the user may share personal information with other users and visitors.
The amendments would also provide that nothing in the act be construed to permit a civil action against an interactive computer service that is inconsistent with the provisions of 47 U.S.C.§230 (c). This section of the federal law provides immunity from liability to any provider or user of an interactive computer service for any voluntary action taken in good faith to restrict access to or availability of material which the provider or user considers obscene.