533.02 PRESUMPTION OF KNOWLEDGE; ACTUAL NOTICE AND DEFENSE.

   (a)   An owner or manager, or agent or employee of an owner or manager, of a bookstore, newsstand, theater, or other commercial establishment engaged in selling materials or exhibiting performances, who, in the course of business does any of the acts prohibited by Section 533.11, is presumed to have knowledge of the character of the material or performance involved, if the owner, manager, or agent or employee of the owner or manager has actual notice of the nature of such material or performance, whether or not the owner, manager, or agent or employee of the owner or manager has precise knowledge of its contents.

   (b)   Without limitation on the manner in which such notice may be given, actual notice of the character of material or a performance may be given in writing by the chief legal officer of the jurisdiction in which the person to whom the notice is directed does business. Such notice, regardless of the manner in which it is given, shall identify the sender, identify the material or performance involved, state whether it is obscene or harmful to juveniles and bear the date of such notice.

   (c)   Section 533.11 does not apply to a motion picture operator or projectionist acting within the scope of employment as an employee of the owner or manager of a theater or other place for the showing of motion pictures to the general public, and having no managerial responsibility or financial interest in the operator’s or projectionist’s place of employment, other than wages.

   (d)   (1)   Sections 533.11, 533.12(a) and 533.13 do not apply to a person solely because the person provided access or connection to or from a computer facility, system, or network not under that person’s control, including having provided transmission, downloading, intermediate storage, access software, or other related capabilities that are incidental to providing access or connection to or from a computer facility, system, or network, and that do not include the creation of the content of the material that is the subject of the access or connection.

      (2)   Subsection (d)(1) of this section does not apply to a person who conspires with an entity actively involved in the creation or knowing distribution of material in violation of Section 533.11, 533.12 or 533.13, or who knowingly advertises the availability of material of that nature.

      (3)   Subsection (d)(1) of this section does not apply to a person who provides access or connection to a computer facility, system, or network that is engaged in the violation of Section 533.11, 533.12 or 533.13 and that contains content that person has selected and placed in or on the facility, system, or network or content over which that person exercises editorial control.

   (e)   An employer is not guilty of a violation of Section 533.11, 533.12, or 533.13 based on the actions of an employee or agent of the employer unless the employee’s or agent’s conduct is within the scope of employee’s or agent’s employment or agency, and the employer does either of the following:

      (1)   With knowledge of the employee’s or agent’s conduct, the employer authorizes or ratifies the conduct.

      (2)   The employer recklessly disregards the employee’s or agent’s conduct.

   (f)   It is an affirmative defense to a charge under Section 533.11 or 533.13 as the section applies to an image transmitted through the internet that the person charged with violating the section has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by juveniles to material that is harmful to juveniles, including any method that is feasible under available technology.

(ORC 2907.35)