The word freedom is defined as having the power or right to act, speak or think as one wants without hindrance or restraint. Lately, government officials have been enacting new laws that might make some of us ask, “Do we still have the freedom of choice?”
For decades, our industry has been the target of state and federal lawmakers trying to legislate what individuals can and cannot access online, specifically with online adult content. Lawmakers have been lighting the fuse with the addition of state and federal legislation targeting the high-risk adult industry.
Develop and enforce strong content review policies and have tools in place to validate your producers and models if your program is focused on user-uploaded content or live streaming.
This month, we look at the growing collection of those laws, what they mean and what you can do to best support our industry to let freedom continue to ring.
LAW LIMITATIONS LAUNCHED
In the last year, we’ve seen several new laws launched by different states. In April, the Texas legislature added a provision to a rural broadband bill that prioritizes the awarding of contracts to internet service providers that “maintain a program to, by default, block access to pornographic or other obscene materials.” A month later, Utah’s governor signed into law House Bill 72, which will require wireless device manufacturers to add content filters on all smartphones and tablets sold in Utah. What? At this point, the law doesn’t have any teeth and will require five other states to enact similar requirements by 2023.
In my home state of Florida, Governor DeSantis recently signed a bill, Senate Bill 7072, to protect free speech. However, the specific language inserted into the bill concerning “obscenity” still encourages platforms to ban sexual expression.
These types of regulations are being introduced around the world. Age verification and consent are also making headlines across Europe and closer to home in Canada. Last fall, officials from our neighbor to the north introduced a bill named the Protecting Young Persons from Exposure to Pornography Act. Some warn that this proposed age verification bill for adult content could expose adults’ private browsing habits. It also leaves us with questions like: How will age be verified in Canada? Will some type of biometrics or artificial intelligence be used to do an age estimate? Time will tell.
The adult industry can easily get caught in the crosshairs of organizations such as the National Center on Sexual Exploitation, who believes pornography is a national health crisis. While their intent is to stop child exploitation, our industry is a target on their hit list. They specifically state: “We are a nonprofit organization with a focus on a wide-ranging and interrelated array of topics including, but not limited to, child sexual abuse, child-on-child harmful sexual behavior, compulsive sexual behaviors, demand for sexual exploitation, illicit massage businesses, image-based sexual abuse, institutional sexual abuse ... sexual objectification, stripping, as well as the intersection of these issues with technology.”
The industry also faces the scrutiny of card brands and banks with their own unique set of rules. Even social media platforms, which help drive traffic and market our programs along with other technology partners, have policies prohibiting adult content, making it difficult for companies to operate and be successful. So, what are ways to stay out of out of trouble and still be successful?
WALK LIGHTLY AND WATCH YOUR BACK
Trying to do the right thing can feel like you’re walking through a minefield. To survive, you need to walk gingerly to make sure you don’t set off a bomb or get noticed. One of the best things you can do is self-police. Be proactive with an 18+ warning page. These are symbolic of your efforts to protect minors from adult content. Many banks already require these. Some merchants tend to not like to use these warning pages as it can impact SEO, but in the end, it’s worth it.
Also, do not market with the terms "teen," "pre-teen" or anything that implies someone underage. Develop and enforce strong content review policies and have tools in place to validate your producers and models if your program is focused on user-uploaded content or live streaming. Also, don’t be afraid to report those that are abusing the system. Ultimately, we all pay the price when there is a rogue player or vertical. Lastly, have a fair billing practice so you don’t trigger alerts with the Federal Trade Commission or card brands.
BACK THE FREE SPEECH COALITION
The Free Speech Coalition (FSC) is the only industry trade organization focused on protecting the rights of our industry. Managed by CEO Michelle LeBlanc, her small team, and an all-volunteer board on which I serve, work together to protect our industry. The operation runs on membership and over the last several years, with the consolidation of the industry, the memberships have taken a hit. It’s important that we all carve out some portion of our budget to help maintain the FSC’s dedication to supporting and protecting our industry. As a board member for close to four years now, I’ve seen the organization jump to action to fend off several laws with industrywide impact, including:
• FSC successfully blocked California anti-adult film bills AB 332, AB 630 and AB 1576.
• The FSC and the Adult Performer Advocacy Committee (APAC) successfully argued for Cal/OSHA to vote against a proposed regulation that would endanger the lives and livelihoods of workers. The Cal/OSHA board voted three to two to dismiss the regulations and restart the process with direct involvement by industry stakeholders.
• FSC worked directly with California lawmakers to stop a bill that would have required adult performers to be licensed by the state.
• FSC provided essential guidance for adult businesses struggling with California’s independent contractor law, AB5.
• FSC was successful in defeating Proposition 60, which would have allowed any resident of California to sue and profit off adult film workers. Even though the #NoProp60 campaign was outspent 10 to 1, the FSC was able to defeat the proposition by over a million votes and won in 54 of California’s 58 counties.
• A Federal Court of Appeals sided with the FSC, declaring key portions of title 18 U.S. § 2257 unconstitutional. The record-keeping compliance law requires producers of pornography, or someone showing depictions of any sexual activity using actual people, to verify age by maintaining records, and previously allowed for warrantless searches of adult businesses. That last provision is completely eliminated, thanks to FSC.
• Our ability to work safely during the pandemic was entirely dependent upon the FSC leadership assembling a team of stakeholders and medical experts to guide us through a safe reopening. Without the FSC leadership and the shield it created against government regulatory intervention, the industry would have never been able to resume production as quickly and safely as it did.
The fight to protect our rights is far from over. This spring, the FSC added a D.C. lobbying firm to its umbrella to help influence every aspect of adult industry commerce. Having an advocate for us in Washington will not just prevent bad government regulations, but help us create industry-sensitive regulations too. This year, two top legislative priorities are preserving Section 230 of the Communications Decency Act — U.S. legislation that provides immunity for website platforms from liability for third-party content — and fighting financial discrimination against the industry.
The bottom line is: to make sure freedom can still ring, we must make our voices heard.
Cathy Beardsley is president and CEO of Segpay, a global leader in merchant services offering a wide range of custom financial solutions including payment facilitator, direct merchant accounts and secure gateway services. Under her direction, Segpay has become one of four companies approved by Visa to operate as a high-risk internet payment services provider. Segpay offers secure turnkey solutions to accept online payments, with a guarantee that funds are always safe and protected with its proprietary Fraud Mitigation System and customer service and support. For any questions or help, contact sales@segpay.com or compliance@segpay.com.
