Sharanya Chowdhury is a student of Dr. Ram Manohar Lohiya National Law University

As platforms like OnlyFans emerge as a significant avenue for generating passive income, highlighted by the fact that BusinessInsider now offers guidance on content promotion strategies for the platform, it’s imperative to examine the intricacies surrounding the sale of online adult content in India. This entails exploring the loopholes present within existing regulations, particularly in terms of advertising practices, and shedding light on the nuanced understanding of consent within the regulatory framework.

Is Being an OnlyFans Creator Equivalent to Being an Adult Content Creator?

To begin, OnlyFans is legally accessible in India. Platforms that may be used to monetise adult content for small creators aren’t new to the market. A good example of this is Patreon which caters to creators across dimensions of content creation and provides a space to create patrons of one’s skill. . What made OnlyFans different was its standards of data safety and identity protection that platforms like Patreon provide, coupled with its marketing that presented it as the perfect platform for adult content monetisation.. However, unlike in some other countries where users can freely sell explicit images and videos on the platform, such activities are illegal in India. While the platform itself may be lawful, the sale or distribution of explicit content, including pornography, through OnlyFans violates Indian laws related to “obscenity” and the dissemination of explicit material. Individuals engaging in such activities on the platform risk facing legal repercussions under Indian law. Hence, adult content creation remains illegal in India.

OnlyFans or Feetfinder: A Commentary on Consent

The only difference here lies in how they are viewed in terms of “obscenity”. The term “obscenity” is inherently subjective and has been a subject of legal scrutiny for centuries. The Hicklin test, established by the English case R. v Hicklin, provides a legal test for making obscenity as objective as it can be. The interpretation of obscenity is not static and evolves alongside societal norms and moral values. A recent ruling by the Bombay High Court, dated October 12, 2023, highlighted this evolution by stating that provocative dance performances and suggestive gestures by women do not necessarily constitute “obscene” or “immoral” acts. This illustrates how the understanding of obscenity can vary over time and within different cultural contexts. Similarly, on platforms like OnlyFans, determining what content qualifies as explicit can be ambiguous and subject to interpretation.

Interestingly, while uploading an image that may be considered explicit on such platforms may be illegal, uploading pictures of alluring ankles on Feetfinder or any other e-commerce website is innocent. Platforms like Feetfinder, designed for the sexual gratification of users, operate within this framework. However, the enforcement of obscenity laws often hinges on the presence of “explicit imagery”. This dichotomy raises questions about the underlying principles of obscenity laws and their impact on individual autonomy and consent. The author contends that such regulations overlook the agency of content creators, placing undue emphasis on the potential for viewer perversion. This is further emphasised by the language of S. 67 of the IT (Amendment) Act 2008. This perspective implies a disproportionate burden on content creators, as opposed to targeting the misuse of such content and targets individuals who may face legal consequences for content that merely caters to evolving societal preferences.

WouldAdvertising to Garner an Audience Outside India Still be Illegal?

Selling adult content to individuals in other countries raises different legal considerations compared to selling within India. While advertising such content to an audience outside of India may not directly violate Indian laws or ASCI guidelines, it is essential to comply with the laws and regulations of the countries where the content is being advertised. If the country from which you’re advertising such content is India, you will come under Indian intermediary laws.

The Ministry of Information & Broadcasting’s recent advisory on endorsement  of  products and  services that contravene the ASCI code made it clear that it includes promotional content or advertisements by manner of  surrogate advertisements which happens to be the main form in which adult content is usually advertised.

The Advertising Standards Council of India (ASCI) has stringent guidelines in place to prevent the advertisement of adult content in India. However, a unique challenge arises when individuals promote accounts on platforms like social media, particularly those hosting adult content, without explicitly mentioning the nature of the content. In such cases, it becomes challenging to ascertain whether the promotion violates ASCI rules, as the mere existence of the account is not unlawful. While ASCI guidelines aim to uphold ethical standards in advertising and protect consumers from explicit or misleading content, the ambiguity surrounding promotions of accounts without explicit content disclosures presents a grey area. This ambiguity underscores the complexities involved in regulating online content promotion, especially in contexts where the nature of the content may not be immediately apparent. As a result, ensuring compliance with ASCI guidelines in such scenarios requires a nuanced understanding of the intent and implications of the promotional content.

Banning Instead of Regulating Content Presents a Threat to Data Privacy

While the approach of ‘no content, no need for data privacy regulation’ is clear in the present circumstances. Regulations that impose bans on adult content, while sidestepping discussions on creator consent and autonomy, inadvertently stifle discourse on the data privacy of both content creators and sex workers in India who have turned to these platforms as a safer alternative. OnlyFans simply adopted an approach that prioritised the safety of its creators in an industry with sparse regulation, empowering creators to have autonomy over their subscription prices and retain a significant portion of their earnings which has not been possible in most forms of adult entertainment. This raises the question if India is finally ready for the ethical regulation of adult content.  With the increasing trade of deepfake pornography and consistent evolvement in the format of production of adult entertainment content, it is crucial that there be regulation on it.  

The absence of discussions on this matter further perpetuates the cycle of inadequate data protection for creators. This void in conversation paves the way for the emergence of new platforms with newer business models towards adult content regulation, but similar lax attitudes towards safeguarding creator privacy. It is imperative to address these issues comprehensively to ensure the rights and well-being of content creators. Banning consensual adult content doesn’t put an end to its advertisement or trade; rather, it merely drives it underground. In this shadowy realm, the line between consensual trading and non-consensual use of such content becomes increasingly blurred. By pushing adult content into the shadows, authorities inadvertently make it more difficult to distinguish between content that is ethically produced and shared with consent and content that is distributed without the consent of the individuals involved.

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