By: Kathryn Barber
Professional adult entertainers have recently sued Meta Inc., the parent company of Facebook, and the owner of OnlyFans in a class-action suit alleging these companies illegally blacklisted them from advertising on Instagram and Facebook to favor OnlyFans performers. The complaint alleges these companies blacklisted the performers in an effort to destroy their businesses and their providers or force them to work exclusively through OnlyFans.
OnlyFans is a subscription-based social media platform where users can sell and pay to view content. The platform gained popularity with sex workers who have been able to expand their services and supplement their income. Many of these workers also use other social media sites, like Instagram, Twitter, and Facebook, to promote their OnlyFans accounts and their adult websites. All social media platforms have the ability to manage the content on their applications, which may include banning accounts or removing posts because they violate the community guidelines the platforms have implemented. This practice is not new for sex workers, as many workers have complained that their content has been flagged for violating the guidelines even when they did not break the rules.
While social media platforms have the discretion to remove users or content that violates their community guidelines, there are certain standards these platforms must adhere to. The Unfair Competition Law of California is one. The Unfair Competition Law of California prohibits intentional and illegal business practices and describes “unfair competition” as “any unlawful, unfair, or fraudulent business act or practice, or false, deceptive, or misleading advertising.” The plaintiffs claim that The Unfair Competition Law of California was violated because adult performers who were promoting rival websites to OnlyFans were placed on a database of extremist material that is run by the Global Internet Forum to Counter Terrorism (“GIFCT”). The GIFCT is run by several tech companies and aims to flag extremist and terror content to social media platforms so they can then moderate that content on their own. The entertainers claim that performers’ content was placed on the GIFCT database, despite it not being terrorist or extremist. This led to reduced visibility of the performers’ Instagrams and an overall decline in the usage of OnlyFans’ competitors’ websites. Meta Inc. and GIFCT have both denied these claims and say there is no evidence to support these theories.
In general, Instagram has broad discretion when choosing when to take down a post or remove an account. As a private business, Instagram is not subject to the First Amendment and therefore does not have to provide its users with the rights associated with the First Amendment, including freedom of speech. Because of this, Instagram is able to regulate what its users are posting without being subject to government action. Under Instagram’s Community Guidelines, the company specifically lists content that they prohibit on the platform. This includes inappropriate imagery, like nudity, and illegal content, which includes the offering of sexual services.
Based on Instagram’s Community Guidelines, it could be argued that Instagram is using its discretion to flag content that adult entertainers are posting because this content could be seen as nudity or the offering of sexual services. Performers claim that some of their content of them wearing bikinis or underwear gets taken down and perhaps these images are seen as “nudity.” Further, many performers put links to their adult entertainment websites in their bios. This could be construed as offering sexual services to other users. Overall, Instagram has wide discretion in deciding who gets to use its service and what gets posted on the platform. Based on its Community Guidelines that clearly indicate what content is not permitted on its site, Instagram has a good case to show that what is being posted by these performers is violating the guidelines.
However, this does not absolve the companies of potentially conspiring to blacklist performers who use other sites besides OnlyFans. While OnlyFans and Meta Inc. have denied there is any evidence that supports these claims, both companies have been subpoenaed to obtain crucial evidence for the case. Meta Inc. has been requested to provide copies of records showing OnlyFans’ rival websites that are included on lists by the GIFCT. Further, the subpoena is also requesting any documents of any payments OnlyFans representatives may have made to Meta Inc., its executives, and employees.
As evidence begins to come out, it will be interesting to see if the plaintiffs’ claims have any merit. But, if evidence shows these are just theories being presented on behalf of the adult entertainers, Instagram should still begin making an effort to treat users in a consistent manner all around. Adult entertainers should not be shadowbanned based on what adult website they place their content on and many performers feel as if this is how Instagram decides on what performers will get visibility.
Student Bio: Kathryn Barber is a second-year law student at Suffolk University Law School. She is a staffer on the Journal of High Technology Law. Kathryn received a Bachelor of Arts Degree in Political Science from Clark University.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
