Mastercard imposes new rules on adult sites in order to crush them under the weight of administration.
This is something that we’ve touched on several times before, but it bears constant repetition: the revival of the Porn Wars has seen the opponents of adult entertainment taking a new and worrying direction in their battle to have the sex industry in all forms closed. The fight against porn on a strictly moral sense has long been lost; the feminist claims about porn’s exploitative nature is also on the ropes, the final blows delivered by the RadFems themselves thanks to their new redefinition as hate speech proponents in the eyes of many who might have previously been sympathetic to anti-sex Feminists. Clearly, a new front needed to be opened, and it might be argued that Britain showed the way.
Forced by court decisions and shifting public opinion, the UK government had to accept the legalisation of porn back in 2000, but ever since has been pushing through legislation that makes it as difficult as possible to run a porn business in Britain. Be it the restrictions on sex shops, sex venues and strip clubs that have been imposed over the years, the ban on selling R18 movies through the post, continual new rules over online porn or assorted other minor legal requirements, the British sex industry has been very effectively legislated back into obscurity, while still remaining ‘legal’. No one looks at porn in Britain as a licence to print money any more.
We’re now seeing similar attacks on the industry globally – new licencing requirements, zoning policies, increasing legal restraints on the more outré content, redefinition of sex workers as victims to justify interfering with their businesses and other constraints on the industry designed to make a career in the sex business seem more trouble than it is worth, without falling back on the whole ‘wages of sin’ arguments in favour of simply closing it down entirely. Each minor piece of legislation can be passed off as simply a necessary bit of licencing here, sorting out the bad apples there – but as they build on each other, they become prohibition by stealth.
This week, Mastercard – soon to followed by Visa, just wait and see – have announced new rules for adult content providers. The payment provider now demands “clear, unambiguous and documented consent” for all performers, and who can argue with that? More specifically, Mastercard now requires that “the banks that connect merchants to our network will need to certify that the seller of adult content has effective controls in place to monitor, block and, where necessary, take down all illegal content.”
Unambiguous consent, illegal content… it all seems fair enough, right? At least Mastercard has not severed all links to the sex industry, which seemed possible after their hysterical reaction to fraudulent New York Times claims about PornHub a few months back. But this applies to all suppliers – tube sites, fan sites like OnlyFans and adult dating sites, none of are required by law to hold ID documents at this point, given that they are – like YouTube – third-party host sites that are not legally responsible for the content that they host. This is significant, because while it certainly doesn’t give them a get out of jail free car by any means – if they are hosting criminal content, they’ll still be held responsible for not removing it – it does mean that the law accepts that the platform is the host, not the publisher. It’s the reason why social media sites are not responsible for the behaviour of their users.
But the Mastercard decision changes all that. It means that PornHub, XHamster, Onlyfans and everyone else is now seen as the publisher and must have full double ID, legally binding section 2257 age verification documents and model releases for everything – including live broadcasts – and be responsible for verifying that any content uploaded is ‘legal’ – though what form that legality will take still seems vague. After all, legal sexual acts and material sometimes considered obscene are often different things, especially if you take into account the variable interpretations of obscenity in different US states.
This might be possible for content uploaded to the giant and wealthy tube sites – though it’ll certainly be an administrative nightmare and require huge numbers of people checking every upload – even if these uploads are now only from verified members. It certainly makes the addition of vintage and classic porn to sites a legal minefield, however, unless there is a 2257-style cut-off point for verification requirements. And holding sites responsible for what happens on a live webcast or chat seems even more problematic – will monitors have to watch everything live, ready to shut it down if someone says or does something unacceptable? This seems near-impossible, and the chances are that sites will simply err on the side of caution, over-censoring in the way that many social media sites do.
The definition of consent in these situations will also need to be worked out – at what point does it become binding – after the forms are signed or the scene is completed? If the latter, then what use are the forms unless we also have a witness to say that they were only filled in post-shoot? If someone films and is paid for a consensual porn clip and then changes their mind a month or a year or a decade later, can they have it pulled? Will there, in essence, be the right to be forgotten extended to porn?
More to the point, when does all this start? As we just mentioned, the 2257 legislation had a clause that allowed content shot before the law required age verification to remain exempt, which was only fair – how could producers provide documentation that no one had required them to have? Will Mastercard be as lenient? If not, then even more chunks of content will be about to vanish from tube sites – perhaps so much that it would render the sites redundant, as it is hard to imagine that the sites have all the necessary paperwork for very much of the content currently hosted.
No doubt some indie porn producers are quite happy about the sites that have stolen their content over the years finally being held responsible for hosting it – and with good reason. But they should remember that the people behind this are not their friends, and once they have brought down the big players, they are unlikely to sit back and allow everyone else to get back to making money. As far as the campaigners go, you are all gutter trash and they will be coming for you next.
Mastercard is doing this because extremist religious organisations like Exodus Cry – organisations that have successfully disguised their anti-sex, anti-porn moralising as social justice and anti-exploitation movements – have successfully campaigned for it. In the past, these Christian organisations would have simply been campaigning for porn to be outlawed – now, they know that it is easier to take little, focused stabs that cause pain, even while sometimes pretending that they are doing this to help the porn business clean its own house.
The new Mastercard rules won’t kill the porn industry – it’ll just make life more difficult, perhaps put some people off because it is too much work or one bit of admin cost too much (or because they just don’t want PornHub holding their personal details) and single out anyone who doesn’t play along – say, sites that turn to cryptocurrency as a payment method – as suspect, the ones to single out for legal attention first and a handy example of the next loophole that needs closing (‘look, these sites are avoiding the sensible and protective rules of the credit card companies – clearly more action is needed’). It will, in essence, just add to the hassle and problems involved in working in an industry that has more than its fair share of difficulties already. Like the Feds bringing down Al Capone for tax evasion, so it seems that the legal sex industry is being slowly crushed by admin and red tape. And there will be more to come because this is how the anti-porn lobby now works – and works depressingly successfully. Despite what people think, adult entertainment is not indestructible – we need to protest each of these moves before they finally crush the industry without us even noticing.
DAVID FLINT
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