Megha Mehta
In the U.S., rising unemployment levels during COVID-19 have pushed many to perform virtual sex work through paid subscription apps such as OnlyFans. Though these apps/platforms are not exclusively meant for providing pornographic entertainment, millions of users are paying fees as demanded by the content creators, to view independently produced erotic content. Additionally, subscribers have the option of directly tipping the creator to get content tailored according to their sexual desires. These apps take lesser commissions from creators’ earnings than mainstream porn sites.
Though these apps are slowly gaining currency in India, there is comparatively little domestic discourse on the subject. Reports show that due to social distancing guidelines, street sex work in India has come to a halt. However, currently, phone and internet sex work appear limited to “higher class” sex workers with middle or high-income clientele. Nevertheless, the success of apps such as TikTok, Instagram Reels, etc., and the spike in pornography consumption in India during the pandemic, suggests that OnlyFans is likely to emerge as a popular platform in the post-COVID world. This calls for a renewed focus on the debate around decriminalizing sex work, in the context of the online space.
This article highlights that given the nature of content hosted on OnlyFans, both content creators/subscribers as well as the platform may face criminal liability under 1) anti-pornography and 2) anti-trafficking laws. Apart from chilling effect concerns, this will make content creators further vulnerable to exploitation. From a pragmatic perspective, irrespective of ethical concerns, creators’ right to use such platforms as a safer alternative to conventional sex work should be protected. Hence, this article proposes employing the “vulnerability approach” conceptualized by Dr. Prabha Kotiswaran for recognizing creators’ labour and protecting their economic rights. This approach contains the potentiality for balancing content creators’ and the platform’s rights with the State’s duty to protect citizens against harmful content.
Only Fans and Anti-Pornography Laws: More Trouble for Creators than the Platform
Presently, none of the Indian legislations pertaining to pornographic content exempt voluntary sex work. Sections 67 and 67A of the Information Technology Act, 2000 (“IT Act”) prohibit the publication and transmission of “obscene”/sexually explicit matter. The wording of these provisions serves to criminalize any person who shares any content for sexual gratification on an online platform, even if there is mutual consent.
On the other hand, OnlyFans’ liability as a content hosting platform is a grey area. Section 79 of the IT Act provides that intermediaries will only be liable for hosting third-party obscene or pornographic content if they gain “actual knowledge” of the same, and fail to take expeditious steps to remove it. The Supreme Court had read this down to mean that such actual knowledge must be knowledge through the medium of a court order or government notification (Shreya Singhal v. Union of India, ¶122-123). This requirement has now been incorporated into the recently notified Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 (“Intermediary Rules”).
However, Rule 3 of the Intermediary Rules requires social media intermediaries to prohibit obscene and pornographic content in their terms of use. Rule 3(2)(b) additionally obligates intermediaries to remove content displaying nudity or sexual conduct within 24 hours of a complaint made by any third-party user, without any specific provision for notice. Though the OnlyFans Terms of Service do not expressly prohibit consensually produced sexual content, it reserves the right to disable access to content which is not in compliance with any applicable law, again without prior notice to the creator. Thus, the aforementioned provisions create a slippery slope for creators as OnlyFans may pocket subscription fees, then subsequently remove the content without notice, and refuse to transmit the money citing legal pressures, as it has done in the U.S.
Further, there is evidence to show that Internet Service Providers often pro-actively block pornographic content, even in cases where the government has only issued directions for blocking child pornography. Such suo motu censorship will prejudice creators’ economic interests as well as their right to freedom of expression.
Apart from the IT Act, OnlyFans and its users may also be held liable under the Indecent Representation of Women (Prohibition) Act, 1986 (“IRWA”) and, in case of content involving minors, the Protection of Children from Sexual Offences Act, 2012 (“POCSO”). POCSO does not contain any exemption clause for intermediaries who fail to report or remove child pornography from their site. Additionally, it does not require that a person who is held liable for possessing or sharing child pornography should have expressly known that the content involves a child. This means that OnlyFans and its subscribers may face penal action in cases where a minor content creator has falsified their age, though arguably, there shouldbe a high burden on intermediary platforms to verify the age of users who are sharing sexual content.
OnlyFans and the Scope for Misuse under Anti-Trafficking Laws
Strictly speaking, neither the provisions of the IPC dealing with trafficking (Sections 370 and 370A) nor the Immoral Trafficking (Prevention) Act, 1956 (“ITPA”) criminalize voluntary sex work per se. However, in practice both legislations are frequently invoked against sex workers without regard to whether they have entered the profession voluntarily.
The Bombay High Court has recently observed that though the ITPA does not outlaw voluntary sex work, “sexual exploitation of a person for commercial purpose” would come within its ambit. Given that OnlyFans is a commercial platform, it may be subject to criminal liability. Individual creators may also be singled out for corrective action based on caste and class markers (e.g., See the discussion in ¶12 and 27 of Kajal Mukesh Singh on the stigma attached by State agencies to women from the Bediya community in trafficking cases).
Further, the Parliament has introduced the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 (“2018 Bill”) to replace the ITPA. Clause 39(2) of the 2018 Bill bars online solicitation for the purposes of trafficking, whereas Clause 41(1) penalizes committing trafficking with the aid of digital media and the internet. “Victims” of trafficking, i.e., content creators in this case, are only exempt from liability if they can show they were subject to apprehension of death or injury at the time of commission of the offence (2018 Bill, Clause 45). The express penalization of digital trafficking increases the risk of legal action being taken against OnlyFans and its users.
In this regard, comparison may be drawn between OnlyFans creators and bar dancers, who also perform sexualized acts for public consumption. Both OnlyFans and bar dancing contain potentialities for being less exploitative alternatives than sex work. However, the State frequently paints bar dancers as being either purveyors of obscenity or purported trafficking victims. In 2016, the Maharashtra State government enacted the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working Therein) Act for banning sexualized performances in dance bars. It was argued that bar dancers are usually minors or victims of trafficking and hence require protection. The Supreme Court rejected the trafficking plea, but upheld the ban on sexualized dance performances. Therefore, taking bar dancing as a reference, even if OnlyFans is not out rightly banned, it will probably be subject to heavy paternalistic regulation through a combination of anti-pornography and trafficking laws.
What is the Ideal Regulatory Response?
OnlyFans certainly presents a compelling alternative to mainstream sex work. For the first time, the major share of profits from pornography is going to the performers. Performers have testified that working through OnlyFans helps them avoid the coercion exerted by agents/middlemen in studio porn shoots. Similarly, OnlyFans also reduces sex workers’ need to work on the streets or through exploitative agencies.
This does not mean that OnlyFans is a panacea for sex workers. Abolitionists have argued that the site is a “sanitized” version of sex work, inasmuch as it serves as another platform for men to subject women to sexually exploitative fantasies. Further, content creators are at risk of having their images morphed or unauthorizedly shared with porn sites, being doxxed, as well as being stalked by their subscribers. Women are also forced by traffickers or abusive guardians/partners to perform sexual acts on platforms like OnlyFans as is the case on mainstream porn sites.
There is also the issue of the unequal contractual bargaining power between individual content creators and OnlyFans. Creators prefer OnlyFans over self-publishing content as the site covers the hassle of administrative and billing costs. However, OnlyFans has recently been deleting or deactivating creators’ accounts, and withholding their subscription fees, even if they have not violated the site’s terms of service.
However, the present system, with its overreliance on criminal censorship and a police-driven “raid and rescue” model may not be the best solution to these issues. Current rescue and rehabilitation strategies under the ITPA expose sex workers to human rights abuses in the form of violent police raids and forcible incarceration. Further, the cost of defending legal proceedings, and the loss of income due to detention, forces them into debt bondage. Ironically, the majority of sex workers who are “rescued” choose to return to sex work after being released from corrective institutions.
The linkage of sex work with trafficking has also led to the denial of essential human rights relief to sex workers. The National Human Rights Commission (“NHRC”) had recommended in October 2020 that State Governments should recognize sex workers as informal workers, which would have made them eligible for State-sanctioned relief schemes. However, when abolitionists expressed concerns that this move would legitimize trafficking, the NHRC rolled back its advisory and instead recommended that sex workers should be given help on “humanitarian grounds”. This means that such help would be granted at the government’s discretion rather than as a systemic entitlement.
The disastrous effects of using criminal law to regulate online sex work can also be seen from the impact of the Allow States and Victims to Fight Online Sex Trafficking Act, and the Stop Enabling Sex Traffickers Act (“FOSTA-SESTA”) in the U.S. FOSTA-SESTA makes online intermediaries criminally liable for promoting sex work and sex trafficking. These laws have put pressure on OnlyFans to censor sexual content and market itself towards non sex-workers. They have also reduced sex workers’ ability to implement digital security practices such as “bad date lists” and build online community networks with fellow workers. Moreover, the financial insecurity caused by the banning of online sex work has increased their exposure to exploitation on the streets.
Thus, the manner in which we understand “exploitation” needs to be reframed. Dr. Prabha Kotiswaran has argued for shifting away from the radical feminist approach of treating all sex workers as hapless victims inasmuch as it inordinately targets women engaged in voluntary sex work, and excludes other forms of trafficking. Instead, she has proposed a “vulnerability approach” which looks at trafficking through the lens of labor rights rather than criminal law. Such an approach would pay more attention to securing sex workers’ contractual bargaining power and correcting background economic inequalities that lead to their exploitation, than narrowly focusing on physically coerced sex trafficking.
A similar “vulnerability approach” should be applied to the creation of adult content on platforms like OnlyFans. It can be argued that OnlyFans creators are akin to “digital courtesans” who are performing a reproductive labor of intimacy for their subscribers. This involves providing romantic/sexual companionship services, or a simulated experience thereof to those who are unable to access it offline. Many subscribers prefer OnlyFans specifically because they wish to fantasize about intimate experiences without feeling disgusted about sex. Further, OnlyFans creators often offer an “online girlfriend” experience which includes chatting with subscribers about their sexual habits and insecurities. Moreover, the platform also offers avenues for the LGBTQ community in India to experience sexual intimacy online. Therefore, OnlyFans is a significant resource in a late capitalist world where not everyone has the time or privilege to seek out sexual intimacy, especially if they are living away from home. Its potentiality as an entertainment resource for subscribers other than privileged cis-het men should not be underestimated. Accordingly, content creators should be compensated for their labor in providing such opportunities for romantic/sexual intimacy.
Hence rather than criminalizing content creation, the law’s focus should be on ensuring that OnlyFans does not exploit content creators, e.g. by wrongfully embezzling or taking a disproportionate cut from creators’ subscription earnings. Creators should be recognized as workers under legislations which cover the gig economy and enjoy similar labor rights as other contract workers. Changes to the site’s terms of use should be notified to creators well in advance, failing which any unauthorized modification or deletion of content would be invalid. Creators should also have the right to claim injunctive relief or damages for non-consensual modification or transmission of their data, especially personal information, by third parties.
It may be argued that even if content creators are voluntarily undertaking their work, the State still has a moral duty to protect subscribers from the negative impacts of watching pornography. However, it needs to be noted that Section 67 of the IT Act as it is currently worded (i.e., proving tendency to “deprave and corrupt” persons) is based on the “Hicklin test” of obscenity. The Supreme Court has held that the Hicklin test is outdated and has directed applying the “contemporary community standards” test instead (Aveek Sarkar v. State of West Bengal). Aveek Sarkar had additionally taken note of foreign jurisprudence which only prohibits sexual content that is unduly exploitative, or degrading and dehumanizing in nature.
Hence, applying the vulnerability approach to online content, erotic content per se should not be barred. Rather, State agencies and website moderators should only take action against content which promotes illegal or unduly exploitative sexual behavior, e.g., child pornography. This would offer less scope for abuse than relying on subjective moral depravity standards.
Conclusion
The vulnerability approach is not a silver bullet for resolving the larger ethical debate about the digital commodification of (mostly women’s) bodies. It can always be argued that under current socio-economic background conditions, ethical consumption of porn and sex work is perhaps impossible. However, pragmatically speaking, till status quo continues, creators should not be denied the opportunity to use these platforms. This is especially given that for many, OnlyFans presents a safer and more financially lucrative alternative to mainstream pornography and street sex work.
Unfortunately, current discourse around obscenity in India indicates that OnlyFans creators are likely to face heavy censorship by the State. It is desirable that the government undertakes consultations with sex workers and considers revising its stance on anti-pornography and trafficking laws accordingly. Alternatively, it can be hoped that future judicial analyses on free speech in the digital context will offer some scope for relief.
Megha Mehta graduated from the National Law School of University India, Bangalore in 2019. She is currently working as a law clerk at the chambers of Hon’ble Mr. Justice Mohan Shantanagoudar, Supreme Court of India. Her areas of interest include criminal sentencing and feminist legal theory, particularly sexual harassment and rape law reform.
