OnlyFans Isn't The First Site To Face Moderation Pressure From Financial Intermediaries, And It Won't Be The Last

from the money-and-moderation dept

In August, OnlyFans made the stunning announcement that it planned to ban sexually explicit content from its service. The site, which allows creators to post exclusive content and interact directly with subscribers, made its name as a host for sexually-oriented content. For a profitable website to announce a ban of the very content that helped establish it was surprising and  dismaying to the sex workers and other creators who make a living on the site.

OnlyFans is hardly the first site to face financial pressure related to the content it publishes. Advertiser pressure has been a hallmark of the publishing industry, whether in shaping what news is reported and published, or withdrawing support when a television series breaks new societal ground.

Publishers across different kinds of media have historically been vulnerable to the demands of their financial supporters when it comes to restricting the kinds of media they distribute. And, with online advertising now accounting for the majority of total advertising spending in the U.S., we have seen advertisers recognize their power to influence how major social media sites moderate, the organization of campaigns like Stop Hate for Profit, or the development of “brand safety” standards for acceptable content.

But OnlyFans wasn’t bowing to advertiser demands; instead, it says it faced an even more fundamental kind of pressure coming from its financial intermediaries. OnlyFans explained in a statement that it planned to ban explicit content “to comply with the requests of our banking partners and payout providers.”

Financial intermediaries are key actors in the online content hosting ecosystem. The websites and apps that host people’s speech depend on banks, credit card companies, and payment processors to do everything from buying domain names and renting server space to paying their engineers and content moderators. Financial intermediaries are also essential for receiving payments from advertisers and ad networks, processing purchases, and enabling user subscriptions. Losing access to a bank account, or getting dropped by a payment processor, can make it impossible for a site to make money or pay its debts, and can result in the site getting knocked offline completely. 

This makes financial intermediaries obvious leverage points for censorship, including through government pressure. Government officials may target financial intermediaries with threats of legal action or reputational harm, as a way of pursuing censorship of speech that they cannot actually punish under the law. 

In 2010, for example, U.S Congressmen Joe Lieberman and Peter King reportedly pressured MasterCard in private to stop processing payments for Wikileaks; this came alongside a very public campaign of censure that Lieberman was conducting against the site. Ultimately, Wikileaks lost its access to so many banks, credit card companies, and payment processors that it had to temporarily suspend its operations; it now accepts donations through various cryptocurrencies or via donations made to the Wau Holland Foundation (which has led to pressure on the Foundation in turn).

Credit card companies were also the target of the 2015 campaign by Sheriff Tom Dart to shutter Backpage.com. Dart had previously pursued charges against another classified-ads site, Craigslist, for solicitation of prostitution, based on the content of some ads posted by users, and had been told unequivocally by a district court that Section 230 barred such a prosecution. 

In pursuing Backpage for similar concerns about enabling prostitution, Dart took a different tack: He sent letters to Visa and MasterCard demanding that they “cease and desist” their business relationships with Backpage, implying that the companies could face civil and criminal charges. Dart also threatened to hold a damning press conference if the credit card companies did not sever their ties with the website. 

The credit card companies complied, and terminated services to Backpage. Backpage challenged Dart’s acts as unconstitutional government coercion and censorship in violation of the First Amendment. (CDT, EFF, and the Association for Alternative Newsmedia filed an amicus brief in support of Backpage’s First Amendment arguments in that case.) The Seventh Circuit agreed and ordered Dart to cease his unconstitutional pressure campaign. 

But this did not result in a return to the status quo, as the credit card companies declined to restore service to Backpage, showing how long-lasting the effects of such pressure can be. Backpage is now offline—but not because of Dart—the federal government seized the site as part of its prosecution of several Backpage executives, which was declared a mistrial earlier this month.

Since that time, the pressures on payment processors and other financial intermediaries have only increased. FOSTA-SESTA, for example, created a vague new federal crime of “facilitation of prostitution” that has rendered many intermediaries uncertain about whether they face legal risk in association with content related to sex work. After Congress passed FOSTA in 2018, Reddit and Craigslist shuttered portions of their sites, multiple sites devoted to harm reduction went offline, and sites like Instagram, Patreon, Tumblr, and Twitch have taken increasingly strict stances against nudity and sexual content. 

So while advertisers may be largely motivated by commercial concerns and brand reputation, financial intermediaries such as banks and payment processors are also driven by concerns over legal risk when they try to limit what kinds of speech and speakers are accessible online. 

Financial institutions, in general, are highly regulated. Banks, for example, face obligations such as the “Customer Due Diligence” rule in the US, which requires them to verify the identity of account holders and develop a risk profile of their business. Concerns over legal risk can cause financial intermediaries to employ ham-handed automated screening techniques that lead to absurd outcomes, such as when Paypal canceled the account of News Media Canada in 2017 for promoting the story “Syrian Family Adopts To New Life”, or when Venmo (which is owned by PayPal) reportedly blocked donations to the Palestine Children’s Relief Fund in May 2021.

As pressures relating to online content and UGC-related businesses grow, some financial intermediaries are taking a more systemic approach to evaluating the risk that certain kinds of content pose to their own businesses. In this, financial intermediaries are mirroring a trend seen in content regulation debates more generally, on both sides of the Atlantic. 

MasterCard, for example, in April announced changes to its policy for processing payments related to adult entertainment. Starting October 15, MasterCard will require that banks connecting merchants to the MasterCard network certify that those merchants have processes in place to maintain age and consent documentation for the participants in sexually explicit content, along with specific “content control measures.”

These include pre-publication review of content and a complaint procedure that can address reports of illegal or nonconsensual content within seven days, including a process by which people depicted in the content can request its removal (which MasterCard confusingly calls an “appeals” process). In other words, MasterCard is using its position as the second largest credit card network in the US to require banks to vet website operators’ content moderation processes—and potentially re-shaping the online adult content industry at the same time.

Financial intermediaries are integral to online content creation and hosting, and their actions to censor specific content or enact PACT Act-style systemic oversight of content moderation processes should bring greater scrutiny on their role in the online speech ecosystem. 

As discussed above, these intermediaries are an attractive target for government actors seeking to censor surreptitiously and extralegally, and they may feel compelled to act cautiously if their legal obligations and potential liability are not clear. (For the history of this issue in the copyright and trademark field, see Annemarie Bridy’s 2015 article, Internet Payment Blockades.) Moreover, financial intermediaries are often several steps removed from the speech at issue and may not have a direct relationship with the speaker, which can make them even less likely to defend users’ speech interests when faced with legal or reputational risk.

As is the case throughout the stack, we need more information from financial intermediaries about how they are exercising discretion over others’ speech. CDT joined EFF and twenty other human rights organizations in a recent letter to PayPal and Venmo, calling on those payment processors to publish regular transparency reports that disclose government demands for user data and account closures, as well as the companies’ own Terms of Service enforcement actions against account holders. 

Account holders also need to receive meaningful notice when their accounts are closed and provided the opportunity to appeal those decisions—something notably missing from MasterCard’s guidelines for what banks should require of website operators.

Ultimately, OnlyFans reversed course on its porn ban and announced that they had “secured assurances necessary to support [their] diverse creator community” (It’s not clear if those assurances came from existing payment processors or if OnlyFans has found new financial intermediaries). But as payment processors, banks, and credit card companies continue to confront questions about their role in enabling access to speech online, they should learn from other intermediaries’ experience: once an intermediary starts making judgments about what lawful speech it will and won’t support, the demands on it to exercise that judgment only increase, and the scale of human behavior and expression enabled by the Internet is unimaginably huge. The ratchet of content moderation expectations only turns one way.

Emma Llansó is the Director of CDT's Free Expression Project, where she works to promote law and policy that support Internet users' free expression rights in the United States, Europe, and around the world.

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Filed Under: content moderation, financial intermediaries, infrastructure, payment systems