The recent news of OnlyFans trying to update (or clean up) its image, which has been likened at times to a porn site with a subscription service, has left me thinking about the commercial contractual consequences for Creators. The purge of pornographic content has been given in a form of a notice in August 2021 (“Notice”) under clause 4 (23rd August 2021 terms) by OnlyFans to change the terms of the site, that will be effective from October 2021 to exclude sexual content as reasonable to its users, including Creators.
OnlyFans, like any human tool, has both negative and positive benefits, such as empowerment, protection and steady stream of income for sex workers, and individuals who want to supplement their salaries because of our society’s poor valuation of certain labour or in the same platform minors have been found selling their images to make money.
This article will not discuss the challenging, though interesting, social interactions of morals, the internet and independence; it will instead focus on the more salacious details of English contract law. That said, if you wish to get to the point of this article and not read the risqué details of the Unfair Contract Terms Act 1977 (UCTA), please scroll down to “Thoughts and Conclusion”.
History of T&C’s
1. The amended version 23rd October 2016
“You may not: …. create, upload, post, display, publish or distribute any User Content that (i) is sexually explicit (i.e. sexual acts including penetration/intercourse and/or oral sex, sexual acts to or with minors, bestiality or sexual behavio[u]r that has a violent context, i.e. flagellation or torture), obscene, fraudulent, defamatory, libel[l]ous, hateful, discriminatory, threatening or harassing, or (ii) violates another’s copyright, trademark, right of privacy, right of publicity, or other property or personal right (for example, using the name, likeness, image or other identity of another without proper consent);”
2. The amended version 15th August 2017
“10.2 You may not…. 10.2.9 create, upload, post, display, publish or distribute User Content that: …(a) is explicit, obscene, illegal, fraudulent, defamatory, libel[l]ous, hateful, discriminatory, threatening or harassing;”
3. The amended version 27th March 2018
“3.3 If you are looking to subscribe to other profiles you will need to add a payment card. When adding a payment card, your card information is stored by a payment processor, which is called Stripe; or if you are subscribing to a profile containing sexually explicit content, your card information is stored by a different payment processor, Securion Pay. However, as far as legally possible, OnlyFans reserves the right to change the payment processors it uses at any time and without notice to you. OnlyFans does not store any payment card information.”
AND
“10.2 You may not…. 10.2.9 create, upload, post, display, publish or distribute User Content that:
(a) is obscene, illegal, fraudulent, defamatory, libel[l]ous, hateful, discriminatory, threatening or harassing, or in any way incites violence or any of the [aforementioned] prohibitions;”
4. The amended version 17th December 2018
“3.3 If you are looking to subscribe to other profiles you will need to add a payment card. When adding a payment card, your card information is stored by a payment processor, which is called Stripe; or if you are subscribing to a profile containing sexually explicit content, your card information is stored by a different payment processor, Securion Pay. However, as far as legally possible, OnlyFans reserves the right to change the payment processors it uses at any time and without notice to you. OnlyFans does not store any payment card information.”
AND
“10.2 You may not:….. 10.2.9 create, upload, post, display, publish or distribute User Content that: (a) is obscene, illegal, fraudulent, defamatory, libel[l]ous, hateful, discriminatory, threatening or harassing, or in any way incites violence or any of the [aforementioned] prohibitions;”
Current version: as of 23rd August 2021 (Acceptable Use Policy)
“5. Do not upload, post, display, or publish Content on OnlyFans that:
(b) shows, promotes, advertises or refers to:
1.firearms, weapons, or any goods whose sale, possession or use is subject to prohibitions or restrictions;
2.drugs or drug paraphernalia;
3.self-harm or suicide;
4.incest;
5.bestiality;
6.violence, rape, lack of consent, hypnosis, intoxication, sexual assault, torture, sadomasochistic abuse or hardcore bondage, extreme fisting, or genital mutilation;
7.necrophilia;
8.urine, scatological, or excrement-related material;
9.”revenge porn” (being any sexually explicit material featuring any individual who has not given prior, express and fully informed consent to that material (a) being taken, captured, or otherwise memorialized, or (b) being posted and shared on OnlyFans);
10.escort services, sex trafficking, or prostitution;
(c) contains unsolicited sexual content or unsolicited language that sexually objectifies another User or anyone else in a non-consensual way, or contains fake or manipulated sexual content in relation to another User or anyone else (including “deepfakes”);
(d) contains, promotes, advertises or refers to hate speech (being Content intended to vilify, humiliate, dehumanize, exclude, attack, threaten, or incite hatred, fear of, or violence against, a group or individual based on race, ethnicity, national origin, immigration status, caste, religion, sex, gender identity or expression, sexual orientation, age, disability, serious disease, veteran status, or any other protected characteristic);
(e) contains or refers to anyone else’s personal data or private or confidential information (for example, telephone numbers, location information (including street addresses and GPS coordinates), names, identity documents, email addresses, log-in credentials for OnlyFans including passwords and security questions, financial information including bank account and credit card details, biometric data, and medical records) without that person’s express written consent;
(f) either:
1. in the case of Content featuring public nudity, was recorded in or is being broadcast from a country, State or province where public nudity is illegal; or
2. in the case of Content featuring sexual activities, was recorded in or is being broadcast from a public place where members of the public are reasonably likely to see the activities being performed (this does not include outdoor places where members of the public are not present, for example private property such as a private backyard, or secluded areas in nature where members of the public are not present).”
We could not source further T&C’s of OnlyFans for the years 2019 and 2020 but it is clear OnlyFans has engaged with the issue of sexually explicit content with complex but refined T&C’s, meaning there is a targeted and controlled engagement with adult content.
Discussion of law
The general emphasis of OnlyFans T&C’s: ‘is the content rightfully owned or licensed by the Creator?’ and explicit exclusion of certain type of adult content. An example of a bar to certain content is in an almost catch-all clause of not allowing “Obscene” material to be posted on the site. Additionally, quite cleverly, OnlyFans T&C’s has a bar on posted material if it is filmed in a locality/country which forbids public sexualised content/acts (Dubai police arrest group over nude balcony shoot is an example of said law).
‘Obscene’ is a relative term and historically charged. A cumbersome definition is provided by the CPS as something “to debase or to defile”:
“an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.” “To deprave means to make morally bad, to pervert, to debase or to corrupt morally. To corrupt means to render morally unsound or rotten, to destroy the moral purity or chastity, to pervert or ruin good quality, to debase, to defile”: Penguin Books Ltd [1961] Crim LR 176.
The case involved DH Lawrence’s Lady Chatterley’s Lover and its sexual scenes; an excerpt of what was alleged depravity in 1950s Britain is highlighted below:
“She lay still, feeling his motion within her, his deep-sunk intentness, the sudden quiver of him at the springing of his seed, then the slow-subsiding thrust. That thrust of the buttocks, surely it was a little ridiculous. If you were a woman, and a part in all the business, surely that thrusting of the man’s buttocks was supremely ridiculous. Surely the man was intensely ridiculous in this posture and this act…Yes, this was love, this ridiculous bouncing of the buttocks, and the wilting of the poor, insignificant, moist little penis. This was the divine love!!”
The text is rather mundane considering some of the current contents on OnlyFans; however, the point is obscenity is a time-sensitive definition and it is argued a medium-sensitive term too. Writing about sex as DH Lawrence did is completely different to a video or picture depicting the act. It is argued what would be seen as obscene content for today’s standards would be bestiality (which has been covered in the T&C’s as a precaution!).
Therefore, despite the very careful and refined drafting of excluding certain types of sexual content/activity there is a lot of possible sexual content that can still be produced and posted on the site (see clause 6 of 23rd August 2021 version), to be monetised by both OnlyFans and Creators.
The August 2021 Notice
A notice to amend terms in certain circumstance can be seen as a notice to effectively terminate future relations. However, the fact that clause 4 allows for the unilateral amendment of the online T&C’s by OnlyFans is a right to alter a contract for a significant number of users and Creators without breaching the contract. The 3-month notice given may force these Creators and some users to terminate their contract and dealings with OnlyFans. The reason for OnlyFans to do this is understandable, in part due to minor’s selling their images on the site by forging their credentials as well as financial institutions threatening to refuse to process payments (https://www.independent.co.uk/life-style/gadgets-and-tech/onlyfans-banning-sexual-content-videos-b1905868.html0)
The 3-month notice could have been even shorter than the initial 3- or 4-months’ notice given! It could have been as little as a 30 days due to the notice for unliteral termination of the contract being 30 days (see clause 8(d) of the August 23rd 2021 for unilateral right to terminate the online T&C’s by OnlyFans), that is a set periodic measurement that court would be willing to follow. The notice like the T&C’s of the site is considered and commercially astute, offering enough time for Creators to find other viable options, avoid the courts and costly litigation.
However, is there any redress for Creators? Maybe…
Notice vs the Unfair Contract Terms Act 1977 (or “UCTA”)
UCTA is an odd piece of legislation that allows for terms of contracts to be unilaterally changed if a judge considers them unreasonable. There will be a burden for a Creator to prove that clause 4 is unreasonable (s11(5) UCTA).
The OnlyFans T&C’s contract is a service contract (s12(1) UCTA) as the platform is providing a hosting service for the Creators’ content. Additionally, it is a contract on OnlyFans’ written standard terms of business (s3(1) UCTA) which enables the exercise of UCTA onto application of clause 4.
Thus it can be potentially argued that the notice to alter terms of the said contract to exclude sexually explicit content is a term (which OnlyFans would claim to be entitled to do) rendering a contractual performance substantially different from that which was reasonably expected of it (s3(2) UCTA). This notice to alter the terms of the site can be argued as unreasonable for materially altering the performance of a contract owed by OnlyFans to the Creators.
Thus, there are several factors that need to be considered for a claim under s11 UCTA:
General Practice of Clause 4
The amendment, Clause 4, to unilaterally amend online contracts tends to be used as an administrative tool for compliance purposes or change in payment terms rather than to change the subject matter of a contract that is fundamental to a significant proportion of users of the site, both Creators and Fans, which strikes at the heart of the contract for both groups. Such a term by OnlyFans in this particular context is likely to be the first of its kind, as it is an explicit and sudden bar and there is no prior conduct (custom or practice) in exercising such a contractual right. The term, therefore, is not a reasonable one in the circumstances, and could not have been reasonable for the contemplation of the parties when the contract was made (s11(1) UCTA).
More Notice needed for Clause 4 powers
OnlyFans should have given reasonable notice to highlight the breadth and power to alter the terms of the contract to its Creators and Users before they contracted with OnlyFans or during the term of the contract (Parker v South Eastern Rly (1877) 2 CPD 416, CA).
The lack of notice of OnlyFans unfettered discretion to alter terms is another unreasonable factor, even for a commercial contract. So no notice of such a term was given (s11(3) UCTA).
What will happen?
Until this matter is taken to Court we can only speculate. Though it is argued it would make an intriguing case causing OnlyFans considerable discomfort vis-a-vis their legal position, from a brief review of facts, is not as strong as they may think. With recent case law there is a general thrust against ‘anything goes’ in commercial contracts between businesses (or at least demanded a more nuanced need for drafting commercial terms) and the OnlyFans Notice in theory could be another example of this. This is because a contractual right with unfettered discretion to amend the term of contract would threaten an established industry is very heavy-handed. Is there a need for a nuanced approach? Yes. Does UCTA equip the Court to do this? It can, but this is a headache for the court to engage with.
Thoughts
On inception, OnlyFans was meant to be a pay-to-use platform service providing innocuous content such as cooking tips and work-out videos. However, soon after, as can be seen from their T&C’s, OnlyFans accepted its role as a quasi-adult content platform provider by deleting the bar on sexual content. The acceptance of this role is seen through its amending of T&C’s becoming ever more sophisticated in allowing for pornographic/sexually content. This is almost the same problem Tumblr encountered which was hosting explicit adult content on its website.
This payment model and content is crucial for Creators. The Creators (or “Accountants”) are businesses. The contract between them and OnlyFans are on commercial terms i.e. it is a business-to-business contract. Therefore, Creators will not be afforded consumer rights protections and the terms can be interpreted and drafted more harshly compared to consumer contract. It will be under English and Welsh Law jurisdictions, not in the US or other places around the world.
The Creators will have no redress for loss of income as reasonable notice in August 2021 has been given of the change of their T&Cs. Put simply, the Creators who gained an income from posting sexual content will lose that income and cannot sue for any damages for that loss.
OnlyFans have the commercial right to do this; however, it will be a cost to an industry it managed to democratise/build through the same people giving OnlyFans the notoriety it has today. So does UCTA provide a push-back on this for Creators? Similar pay-for-content sites like Twitch and Patreon have forbidden pornographic material in their T&C’s. However, Twitch has in the past had sexually suggestive content and it can be argued has continued with their “Hot Tub Stream” category. This is raised because sexual content is too difficult not to host due to its commercial (or click) appeal, and in certain circumstances difficult to manage and control. One of the reasons OnlyFans has decided to change its T&Cs is because it is getting harder for them to police their site and the content is becoming more extreme.
So where are all these Accountants supposed to go? The Business Insider have listed some potential platforms that might be a place for them.. However, the reason OnlyFans did so well is because of the same people it is seeking to limit or remove. OnlyFans is now part of the Culture as sung by Beyonce in Megan Thee Stallion’s Savage: “Hips TikTok when I dance/On that Demon Time, she might start an OnlyFans”.
Conclusion
So, yes, the U-turn happened and with it the obliteration of my labours. At least I have something in common with a creator before the policy change of OnlyFans.
The U-turn can only be explained in the following ways:
- it was a significant part of OnlyFans revenue/doubled down on their explicit sexual content angle;2.
2. maybe there is a general trend of decline of sexually explicit content on the site, making it easier to reposition their strategy in the future;
3. OnlyFans may have a new strategy; for example using a subsidiary to channel their initial aims and goals through; and/or
4. OnlyFans have reduced or quelled some the commercial/logistical pressure from Mastercard and BNY Mellon , or possibly negotiated with them new commercial rates.
I would argue that we will find out about the real reason for the U-turn shortly and that reason may lie in the new draft of the T&C’s of OnlyFans, which may indirectly shed light on the above tactics. OnlyFans incorporates a new company name in the contract to shift liability, or make the subtle alteration of payment methods reflecting point 4 above using Clause 4. Either way, I will be keeping an eye on OnlyFans.
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Published 6th September 2021
Additional Info
News Author: Mansour Mansour