The adult industry takes a strong and definite stance against the creation or publication of nonconsensual materials. Adult industry creators, producers, processors, banks and hosts all share a vested interest in ensuring that the recording and publication of sexually explicit content is supported by informed consent.
Industry standards therefore focus on obtaining and documenting voluntary consent from all participants in a production. Professional producers carefully screen performers for any signs of impairment or duress which may suggest a lack of consent to engage in sexual activity in adult content, or to authorize distribution of that content as agreed by the parties.
Images that were initially created with the signed consent of persons depicted can be manipulated or altered to depict them in ways to which they never agreed.
Those concerns are further incentivized by Mastercard’s 2021 guidelines for adult sites that host user-generated content. Under those guidelines, any payment processor that accepts Mastercard payment transactions must ensure that their adult merchants require documented consent for recording, publication and downloading — if allowed — of explicit materials. Online platforms therefore routinely mandate a collection of written consent forms signed by all performers depicted in any uploaded content.
Compliance with both industry standards and processor obligations in the production and distribution of adult content dramatically reduces the likelihood of nonconsensual intimate images (NCII) making their way onto adult platforms.
Muddying the Waters: AI, Deepfakes and Takedowns
In recent years, however, new developments in technology, including artificial intelligence (AI) models, have enabled the creation of realistic depictions of individuals engaging in sex acts that never occurred. These so-called “deepfakes” are created without the consent of the individuals depicted, even if the underlying materials were voluntarily recorded or published.
Other categories of NCII include voyeuristic material depicting body parts that were not intentionally displayed to the public, as well as imagery that was originally created consensually and shared with a friend or partner — but that was not intended for more widespread distribution.
All forms of NCII can cause reputational harm and emotional distress to those depicted. Combating these new forms is more complicated than simply checking contracts and release forms, and creates a number of issues for both the individuals depicted and the platforms on which the content might appear.
For instance, images that were initially created with the signed consent of persons depicted can be manipulated or altered to depict them in ways to which they never agreed. Or they may have consented only to limited or specified distribution of the content depicting them, not wholesale distribution into the indefinite future. Online platforms may have no knowledge of such limitations on consent that an individual may have imposed in connection with specific images or video.
Responsible online platforms promptly respond to abuse complaints asserting NCII concerns. Mastercard guidelines require that platforms publish a complaints policy guaranteeing such prompt resolutions as a condition of continued processing. A list of all abuse complaints, and their resolution, must be maintained by platforms and shared with processors.
By promptly addressing NCII complaints, adult platforms can reduce the potential harm of NCII distribution and maintain healthy relationships with their processors.
Unfortunately, the abuse reporting process itself can be subject to abuse. A competitor or harasser could seek to harm a creator, producer or platform by taking down lawful content. Or a paid performer who signed consent forms for the recording and release of adult content could later change their mind. Contract rights should be respected regardless of whether the contract involves adult materials — but the reality is that having content labeled as NCII, even inaccurately, can cause financial and reputational injury to legitimate content creators, producers and platforms.
What the Law Says: Civil Liability
In 2022, Congress passed 15 USC 6851, a statute that allows an individual to file a civil action for damages against any person or company that knowingly distributes any intimate visual depiction of a person without their consent.
This law includes manipulated images, so long as an individual is identifiable by face, likeness, or other distinguishing characteristics like a tattoo or birthmark.
The statute recognizes that commercial model releases should remain enforceable, and notes that its prohibitions do not apply to an intimate image that is “commercial pornographic content” — unless such content was produced by force, fraud, misrepresentation or coercion.
Given the broad protection afforded by Section 230, any claims asserted against online platforms in relation to user-generated content would likely be unsuccessful. However, individuals, producers or even paysites that produce or publish content alleged to be nonconsensual are potentially liable.
Many states also have, or are currently weighing, laws prohibiting the recording or dissemination of NCII.
On the Horizon: The TAKE IT DOWN Act
Congress is now considering the TAKE IT DOWN Act, which would also impose criminal prohibitions on disclosure of, or threats to disclose, NCII. Under its provisions, offenses involving adults would result in up to two years in prison, while offenses involving minors would carry a sentence of up to three years.
The bill has already passed the Senate and is awaiting action in the House of Representatives. Several key elements could severely impact the adult industry:
- If an NCII takedown notice contains the required information, such as identification of the location of the content, a physical or electronic signature, and a good faith statement that the content was published without the consent of the complainant, platforms must remove the content within 48 hours of receipt, along with all known copies of the depiction. This could pose an insurmountable burden for some platforms, especially those with limited staff.
- Since this would be a federal criminal law, Section 230 immunity would not apply, leaving platforms vulnerable to criminal liability.
- Unlike the DMCA, on which this bill is seemingly patterned, there is no requirement that the statements in the takedown notice be sworn under the penalty of perjury, and no provision allowing for claims against those who abuse the takedown procedure. This invites abuse by frivolous claimants or even competitors.
- Unlike the law allowing civil claims, the criminal bill makes no exception for commercial pornography, compounding the potential for abusive claims.
Numerous civil liberties groups have warned against the potential consequences of this bill, noting that compliance with its requirements would lead to censorship. Given the criminal penalties that could be imposed, online platforms would likely intensify content moderation severely in order to mitigate the risks.
We saw this with the passage of FOSTA/SESTA, which criminalized online materials deemed to promote or facilitate prostitution or contribute to sex trafficking. In response, all sexually oriented content was banned on many platforms, and some service providers shut down completely.
Similar outcomes can be expected if this bill passes into law.
The Way Forward
While combatting NCII is a laudable goal that enjoys widespread support within the adult entertainment industry, any new criminal legislation in this area requires a scalpel, not a sledgehammer.
Imposing criminal penalties on platforms that inadvertently host NCII, or fail to remove such content within a very short timeframe, creates a chilling effect on speech resulting in censorship of sexually-oriented materials. An appeal provision should be incorporated to counter unfounded takedown requests. Proposed laws like this must also recognize the practical limitations facing online intermediaries in identifying and removing such content. Finally, any such law should include a specific provision for punishing abusers to prevent misuse and the resulting harm to creators, publishers, and distributors.
By striking the appropriate balance in protecting free speech and restricting NCII, lawmakers can ensure that the rights of all parties are respected.
Lawrence Walters heads up Walters Law Group and represents clients involved in all aspects of the adult entertainment industry. Nothing in this article is intended as legal advice. You can reach Mr. Walters through his website, www.firstamendment.com, or on social media @walterslawgroup.
