Section 230 Immunizes OnlyFans for User-Uploaded Video–DOE vs. Fenix

https://blog.ericgoldman.org/archives/2024/11/section-230-immunizes-onlyfans-for-user-uploaded-video-doe-v-fenix.htm

by hn_acker • 2 years ago

52 86 2 years ago

blog.ericgoldman.org

hooverd• 2 years ago

Their failure to require a model release is pretty damning to me.

icu3• 2 years ago

As much as I disagree with the concept of OF content, I do believe that people should be free to do what they want, provided it is consentual and it isn't harming others. However, OF—and any adult content for that matter—can lead to exploitation. Because of this, I think it is sensible for online platforms of adult content to voluntarily require a model release and proof of Government ID as part of their Terms of Service. Since this isn't happening, it now seems sensible to regulate that any, and all, adult content posted online require a model release. The way I see it, OF was morally complicit in this sordid affair, but couldn't be held to account due to the law. The OF management could have easily protected themselves, and sexual assault victims, from these worst case scenarios but didn't. The law really needs to change and there needs to be regulation in this area.

Eridrus6• 2 years ago

I am skeptical that putting a model release requirement in their ToS is sufficient, since the goal here is to have sex offenders be separable from regretful models in court proceedings.

I think this might require a separate law to be meaningfully enforceable since you really want people to be directly liable for the lack of release, rather than having defendants claim "nobody ever reads the ToS or has a release".

At the very least it would probably require very clear messaging from OFs that this is required, such that basically everyone on the platform actually has/is able to produce it.

Onavo5• 2 years ago

Model release isn't enough, the feds need to actually back it with legislation and perhaps ensure all the signing happen at a police station, so no accusations of consent can be bandied about. Given the amount of revenue the industry generated for LA and Florida, this should not be controversial. There was the infamous "girl do porn" case last year where even with model release the producers were accused of public distribution when the contract said it was for private release and the models decided to sue for sexual assault based on a contract law breach. The industry needs to be thoroughly regulated with lots of sunshine lists on all players, contract law and civil courts will only lead to tragedy.

palsecam2• 2 years ago

Legal reference: https://www.govinfo.gov/app/details/USCODE-2023-title47/USCO... (“47 U.S.C. § 230”).

On Wikipedia: https://en.wikipedia.org/wiki/Communications_Decency_Act#Sec...

perihelions3• 2 years ago

Surprisingly, the other tech platforms seem to be entirely content to continue platforming, and monetizing, these people:

- "Romelus and Charles denied [sic] to comment after pleading guilty."

- "Romelus told NBC6 that the reason he didn’t want to comment was because he hadn’t told his fans on social media about the incident."

- "“Thing is, I’m an influencer,” Romelus said."

spacebanana7• 2 years ago

Should the terms of service of a tech platform apply to all public activity a person conducts?

Would it be fair for TikTok to ban me because I posted nudes on instagram? Or execution videos on Telegram? Or angry comments about my local Starbucks on Facebook?

perihelions3• 2 years ago

Private websites are free to ban whoever they want, for whatever reason they want. ToS aren't contractual guarantees of service.

ToucanLoucan4• 2 years ago

Should the terms of service of a tech platform apply to all public activity a person conducts?

I don't see how this could possibly function in law. If I get a job with Facebook that says I'm not allowed to discuss my salary, could I then be contractually forbidden from filing taxes, because I would necessarily have to inform the IRS of how much I made? Or apply for credit, because I would have to tell Experian?

PittleyDunkin2• 2 years ago

Yes, absolutely. Nobody is entitled to service.

stego-tech2• 2 years ago

Quite the horrifying read, and absolutely a case that will be used as ammo to tear down S230.

I love S230 in principle. I don’t think platforms should generally be held accountable for the postings of their users to a point. On paper, it’s an excellent safeguard that has enabled the modern internet for better or worse.

As with all “good things”, however, bad actors have found ways to exploit it for their own ends, and an incompetent Congress has failed to reform it. Modern polarization isn’t helping, as the respective camps regarding S230 tend to be “protect it as is” or “repeal it entirely”, neither of which is appealing or worthwhile. S230 is flawed, and it must be amended, updated, or replaced with a better version that addresses common grievances.

In my subjective experience, I would prefer to see S230’s protections “scale” with the size of the platform and its function. For instance (and I know this will be a highly controversial take), I don’t think large, centralized platforms like FB or X should have S230 protections at all, because of the high degree of control, immense profits available to invest in R&D or better moderation, and the repeated failures of those companies to moderate misinformation and harmful content while also claiming to be authoritative and reliable sources of public information. On the flip side, your small (sub-10k users) community should have full S230 protections, because you’re a niche that likely serves a smaller cohort, rather than a centralized monolith of the general public.

Could such restrictions be exploited to create similar harms as the above? Of course, but at least a modest reform like that would serve as a warning shot to both sides that no legislation is ever “done”, and we must continue to adapt it to ensure it meets the needs of modern times.

sroussey3• 2 years ago

What about telephone calls and their content?

djbusby2• 2 years ago

Telephone is currently private conversation. Need a warrant to get in (tap).

Onavo5• 2 years ago

Quite the horrifying read

Not really, if you see the other case law, almost all of these semi-professional "amateur" porn cases come down to he-said, she-said. One party would agree to be filmed/paid for sex, back out half way through, and then sue for involuntary pornography and consent. Very few are the true voyeur cams that you would expect when you initially read about these cases. In this case they couldn't prove any of it so the defendants got a plea deal with no jail time. Suing OnlyFans was just a cash grab, like how lawyers love to go after pornhub (the mindgeek company mentioned in the other case law). If anything, this is section 230 working as intended. There is nothing broken to reform.

What the federal government should do perhaps is to have a federal disclosure and consent form database for all participants in an adult video, listing what they are willing to do, for how long, and when they signed it. That would go a lot further than this sort of wishy washy he-said she-said money grab lawsuits.

https://www.nbcmiami.com/news/local/men-accused-of-sexually-...

dylan6044• 2 years ago

If you're filming sexual acts to be placed onto a website for monetary gain, then there should be a written form showing that consent. He said/she said shouldn't be something that should come within 10 miles of these conversations. The consent form should grant either party the ability to with draw that consent again with written consent.

Lot's of should which is the problem

nolok3• 2 years ago

One party would agree to be filmed/paid for sex, back out half way through, and then sue for involuntary pornography and consent.

I mean, I understand what you're saying but you're making it sound like "it's not real rape but more like contractual disagreement".

If someone backs out half way through, they absolutely should be allowed. There might be compensation in their contract etc ... But that's implementation details, the base fact is just because you said "Yes I agree to do X for Y money" doesn't mean you can't quit your job after it starts, and your employer cannot force you to keep working until he's satified with the result. That apply to pretty much any job, but especially to something like porn.

stego-tech2• 2 years ago

This is in the same ballpark as S230: sounds great on paper, but is terrible in practice. Having such a database would absolutely expose performers to reprisal or persecution by a bad actor government - i.e., LGBTQ+ actors being persecuted by a religious or fascist government - and therefore shouldn’t exist.

However, I do agree with other posters here that any sort of adult production should absolutely have signed, written consent forms outlining safewords/signals for all participants involved, the nature of what will be filmed, and the expected acts of the parties therein, such that there can be no question about these issues in a court of law. Paperwork saves lives.

akomtu• 2 years ago

IMO, it's pretty simple: freedom must be bundled with responsibility. However if a company doesn't want responsibility, it should be given immunity, but in return it must give up control over user content to some extent.

In practice, the bigger the platform, the more it should be regulated, and platforms with billions of users should be overseen by elected officials.

Zak2• 2 years ago

My take on it is that opaque, individualized content recommendation algorithms should be treated the same as human editors selecting the content in question. Something Facebook-sized that only shows users a reverse chronological feed of things they manually subscribed to wouldn't be nearly so problematic.

Jensson• 2 years ago

As it is opaque we can't even know if it is human editors behind the scene making all the decisions instead of algorithms. I heard Tiktok uses a lot of human judges to decide what content should go viral, when you do that why do section 230 still apply?

brightlancer• 2 years ago

S230 is flawed,

Yes.

and it must be amended, updated, or replaced with a better version that addresses common grievances.

That assumes it will be "better" and less flawed. To that point:

In my subjective experience, I would prefer to see S230’s protections “scale” with the size of the platform and its function. For instance (and I know this will be a highly controversial take), I don’t think large, centralized platforms like FB or X should have S230 protections at all, because

sec230 in its current form is better than every "reform" I hear suggested.

zarzavat2• 2 years ago

Given that Musk is Trump's primary backer, will Trump really sign off on a repeal of 230? Would be quite the slap in the face.

therouwboat• 2 years ago

Maybe they can add exemption for companies that work for greater good.

throw16180339• 2 years ago

I don't see why that would stop him; he has a long history of stabbing allies in the back.

zarzavat2• 2 years ago

Turning that on its head, Trump's political positions are just as fluid as his allegiances.

I don't believe that Trump really cares about section 230, but Musk definitely cares a lot as he has $40B invested in an edgy social media platform.

As long as Musk keeps the money flowing, Trump doesn't have any reason to backstab him. It's possible they may fall out at some point but that hasn't happened yet.

pavlov3• 2 years ago

Does Trump still want to repeal Section 230? He was in favor in 2020, but that was a long time ago.

Now he’s co-governing with Musk. Both billionaires own social media platforms that benefit from Section 230 protections. What’s the incentive for them to push for a repeal?

sroussey3• 2 years ago

Trump will only do what is in his personal self interest.

icu3• 2 years ago

Anyone who thinks they can say with certainty what Trump will do just isn't credible. That said, my guess is that Trump will change Section 230 to force neutrality and free speech or Section 230 protections will be lost. I don't see how that is incompatible with X or Truth Social.

throwaway48476• 2 years ago

Maybe there will be a requirement for X style public algorithms.

pavlov3• 2 years ago

“change Section 230 to force neutrality and free speech”

How would that revised law look like? Would courts be tasked with determining whether a defendant in a Section 230 lawsuit had been sufficiently neutral?

The standard for libel is extremely high in America compared to many other countries. By the same logic, the standard for losing Section 230 protections should be similarly high. Otherwise courts become unwilling arbiters of what’s acceptable speech.

AzzyHN• 2 years ago

Twitter has already changed their TOS so that any legal challenges happen in a district with a Trump-appointed judge. I imagine similar tactics would be used to create a "rules for thee but not for me" situation. There are a lot of Trump-appointed judges now.

tzs• 2 years ago

I'm not sure their TOS would protect them.

Say someone posts things on Twitter calling for violence against some group, and members of that group get harassed or attacked and they sue the poster and they sue Twitter.

All they need to do is choose plaintiffs who have not agreed to Twitter's TOS.

ttyprintk• 2 years ago

There will be very little accountability that the change they desire matches the rhetoric. In his first term, Trump's DOJ and FCC tried weakening 230 -- not repealing it.

The most useful Section 230 might:

- Intimidate fact checkers

- Promote new "outsiders", conveniently approved with a polished message

- Sew a framework of attribution, especially between loyal states versus blue states.

- Obscure that some messages are paid, while others just win an algorithmic jumble.

- Sew a framework of counter-attribution, where a platform may challenge my message as untruthful. Regardless, if I seem to pass a particular loyalty test, I win the right not just to promote it harder, but also advertise "what they don't want you to know" and they must carry it as such.

bediger4000• 2 years ago

Aren't you assuming that laws will be applied uniformly? It's entirely possible that Musk thinks a repealed Section 230 wouldn't harm X because of that co-governing.

Eridrus6• 2 years ago

It feels weird to view this case as a primary Section 230 issue rather than looking at the fact that the DA did not prosecute this case and took a plea deal.

Civil trials have a lower burden of proof, so it's unsurprising the plaintiff is seeking a remedy here, but the core issue seems to be that we are unable to prosecute this case as the criminal matter it clearly is.

DebtDeflation• 2 years ago

They were facing up to 93 years in prison for the rape and obscene content distribution charges and the prosecutor agreed to a plea deal of one year probation, 100 hours of community services, and an agreement to cease posting content to social media. People have gotten worse sentences for simple marijuana possession. Sometimes the criminal justice system makes absolutely no sense to me.

Eridrus6• 2 years ago

I presume the issue here is that the DA did not believe they could prove beyond reasonable doubt that this was assault and not a model regretting she did a porn shoot.

It vaguely sounds like they had an OF that did a bunch of these shoots, and presumably the DA didn't manage to get any other girls on record saying they were assaulted (how hard they tried etc is unclear).

TZubiri12• 2 years ago

Citation needed on being a criminal matter (in the case against the content provider). I mean I guess the only real definition of something being a criminal matter, is if there's litigation and court rules in favour of plaintiff. Second best definition is if someone opens a criminal case, at least then there would be a contention that it's a criminal matter.

In this case neither happened so there's no source to backup that claim. I wouldn't be surprised to see a criminal case being opened against a publisher/alleged publisher for dissemination of a criminal act, but I do think it would be dismissed eventually.

bastloing• 2 years ago

Should be able to post except when it violates the TOS, or is illegal.

TZubiri12• 2 years ago

"Is OnlyFans an ICP?"

What does ICP stand for?

palsecam2• 2 years ago

In the context of US law, ICP is an acronym for Internet Content Provider [source: AI; seems OK but can’t guarantee it].

TZubiri12• 2 years ago

Ah I see, in the context os Section 230 it would be the new categorization of the party that is no longer considered a publisher and no longer subject to the liabilities that come with being a publisher.

TZubiri12• 2 years ago

"b) displayed a check mark next to Romelus’ name showing that he was “verified” and creating the impression he should be trusted;"

Not sure what express warranties OnlyFans makes to its customers, or regulators. But a verified checkmark in this context should obviously mean that the subject of the account, either is the administrator of the account, or that the administrator and subject are connected by express permission to administrate the account in the name of the subject.

That is, that a girl is uploading her own videos, and not that someone else is uploading the videos for them.

I could understand that in this case maybe the man in the video was verified. And it is the account that is verified, so if the girl changes in each video, there would need to be a per-video verification, or a policy that treats men and women differently with regards to verification, or some kind of third party verification.

Not an easy case.

Furthermore, there is the case or interpretation that the material is acted, but requiring verification and consent of third parties in uploads seems like a pretty standard requirement to me.

Not a lawyer, not a judge, but it seems pretty sensible to me that all parties in a video should consent and be verified by the provider, perhaps not on a per-video basis, but just add allowed subjects/actors, the first time may be a hassle and the next time would be easier. There's various types of consent that might be evident in video, consent to record, consent to distribute and consent to have sex obviously. I think it's unreasonable to ask for consent to be a part of the video or depend on the contents of the video for such consent verification. The begged question is, how many videos exist were the third parties did not consent to recording or distributing the videos? Logistically the mechanisms for consent for the distributor should be the same, there is never a dependency in the contents of the video to verify such consent, nor is there any expectation that the distributor will see the videos to verify such consent (although there may be an expectation to view the contents of the video for other purposes, such as verifying age or verifying that it contains the allowed actors) Such verification must occur off-band, not merely by analysis of the content of the videos itself.

Caveat, I do think OnlyFans is following regulations and goes in the right direction, fuck free "tube" types of sites, even after regulation. If you consume any type of porn, at least pay for it. Or just do whatever you do, but don't pretend you have the high road over those who pay and fund legal efforts to regulate this shit.

And if I take the focus off the rape, I apologize, but I think that general consent, in this case to record and distribute, is probably the only one relevant to the defendant of OnlyFans. Which is no small thing, being liable for distributing sexual videos without the consent of the subject. The fact that the subject was raped would be an aggravant, but the general technicalities of the case play out the same way as a consensual sex partner that did not consent to being recorded or distributed.

The court actually responded to this as this was a small part of the complaint, which I believe holds the most merit.

" (f) failed to enforce its alleged corporate policy requiring a signed release form showing consent by any third party (like Plaintiff) who appears in a posted video and "

the response was

"OnlyFans’ failure to enforce its policy requiring signed model releases didn’t add to the illegality and runs contrary to Section 230’s negation of the moderator’s dilemma."

I'll straight out say that I don't know what this means or how it plays out, but I will say that, even though the complaints are handled independently. Possibly the efforts expended on other complaints that had less merit took some resources away from this point. I think in the future sounder legal strategies will focus on this point, and case law will develop around vanilla failure to consent to record and publish, rather than lack of consent to sex (rape).

So that's my take.

TZubiri12• 2 years ago

Complaint "(f) failed to enforce its alleged corporate policy requiring a signed release form showing consent by any third party (like Plaintiff) who appears in a posted video an"

Court ruling summary

"OnlyFans’ failure to enforce its policy requiring signed model releases didn’t add to the illegality and runs contrary to Section 230’s negation of the moderator’s dilemma."

So bottom line, a pornographic video distrbutor doesn't have the legal responsibility to ask for proof that the subjects of the video consent to being recorded and distributed?

Sounds like an easy bipartisan law to pass right? I get that it may not be the case for filming people walking on the streets, but if there's fucking there should be a verification system similar to the one I have to do when I open an bank account or whatever, you know where they scan your id and ask you to make a video saying you consent to opening an account or to put your face closer or farther from the camera?

Call your senator type of deal?

TZubiri12• 2 years ago

https://www.law.cornell.edu/uscode/text/18/2257

"every performer portrayed in a visual depiction of actual sexually explicit conduct— (1)ascertain, by examination of an identification document containing such information, the performer’s name and date of birth, and require the performer to provide such other indicia of his or her identity as may be prescribed by regulations; (2)ascertain any name, other than the performer’s present and correct name, ever used by the performer including maiden name, alias, nickname, stage, or professional name; and (3)record in the records required by subsection (a) the information required by paragraphs (1) and (2) of this subsection and such other identifying information as may be prescribed by regulation."

I mean, this seems like a basic requirement to verify everyone is of age. Did the rapist send ids and names to OnlyFans or something?

ivewonyoung• 2 years ago

The source page you cited, i.e the law, explicitly says the text you quoted applies to only producers and does not apply to distributors like OF.

TZubiri12• 2 years ago

With regards to:

"(g) took a 20% share of the profits from all of Romelus’ videos."

and court judgment summary:

"OnlyFans’ revenue share didn’t add to the content illegality."

Couldn't it be argued (and this is a very general question about the proportionality of prices charged and expected services provided) that by charging 20% the responsibilities of the provided must be conmesurate?

The legal expectations for a free platform like twitter or facebook cannot be the same as a host that charges 50$ per file for example, as there is an expectation when hosting a file of some services, whether they be reliability or integrity of the content.

If there were a trial against facebook for the data being lost, the case should be easily dismissed as there was no consideration, the content was hosted for free, now if we go to trial against a host that charges 50$ for a small file, then we would have to discover where the money went! And what expenses were used to host the material!

Similarly we cannot expect the responsibilities and warranties of a free service to be the same as those of a paid service.

snapplebobapple4• 2 years ago

I view them as completely separate issues. We need 230 immunity in some form or else the whole telecommunications system falls apart (although I am a fan of Trump's plan to make it apply only to sites following the law and removing only illegal content, as this censorship nonsense we have been dealing with for the last decade or two implies the platform knows what they are publishing and is editorializing which should make it liable, just as a newspaper is liable for what it publishes).

What is charged for distribution is more of an antitrust issue to me (i.e. 20% is clearly ridiculous unless there are a bunch of reach/network effects the platform offers due to it having market power. mitigating that market power is almost always a good idea).

TZubiri12• 2 years ago

What is charged for distribution is more of an antitrust issue to me (i.e. "20% is clearly ridiculous unless there are a bunch of reach/network effects the platform offers due to it having market power. mitigating that market power is almost always a good idea)."

Now that IS a different matter and Off Topic

TZubiri12• 2 years ago

Regarding section 230 immunity.

I think there's distributors and there's publishers, which traditionally were very distinct roles in the physical industry, a book is published by an editorial, who prints it, sells it to a book shop, and performs some content review.

As such the publisher bears some responsibility for the context and not the book shop.

So ISPs are undeniably distributors and do not bear liabilities for the content they distribute.

This has been extended to social media like twitter, granted. The claim being that they are a distributor and that users self publish.

Your argument that whenever a platform exercises their right to review and editorialize, they enter a category of publisher and thus become liable as a whole is compelling. You would hold the company in estoppel, either they are a neutral distributor as a whole, or they editorialize as a whole.

Now how this relates to the onlyFans case. I'm personally not convinced this is a distributor. I believe they may be a publisher. I feel this is very similar to other companies like neobanks and uber and airbnb, or an employer using a contractor categorization, attempting on paper to be something, but effectively being something else. Legal fictions.

The first element common in these legal fictions is that there's a legal relationship that bears a lot of liabilities, be that an employer relationship with taxes, a bank-client relationship with regulations, or a publisher with content liability. That incentive is present here.

Second, the undesirable liability role is most likely to be assumed whenever other roles have already been fulfilled genuinely. For example: if Company A contracts worker X from Company B, then the nature of company A with worker X is that of a contractor, so whatever the relationship of worker X is with company B, there is a strong claim that it is an employer, as the contractor role is already served in that chain.

Similarly, the role of neutral content distributor is already filled by the ISP and content neutral hosts. Onlyfans specifically hosts sexual content (de facto, they may allege to be a general social media platform but it is not the case in practice).

So what I'm saying is that content neutral distributors can be immune from the liabilities of the content they distribute, in the sense that they are ISPs or hosts, but these immunities may not apply to some companies like content-specific last-mile distributors which would assume the role of publisher.

I'm not familiar with the specifics of OF, maybe they make their best efforts to avoid being a publisher and have users sign as independent self publishers or whatever. But even if they make all of the right decisions, somebody has to be the publisher, I don't buy this self-publish legal fiction. There's a lot of elements that may constitute the publisher relationship, and charging a fee for transactions per content may be a big one.

Section 230 Immunizes OnlyFans for User-Uploaded Video–DOE vs. Fenix

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