What is Section 230 and Why Should I Care? 

• 04 Oct, 2022
• Adult Site Broker

Adult Site Broker is an international company. We deal with buyers and sellers from all over the world with differing views and cultural experiences. We take pride in that fact. But one of the most important factors that hang over all of this is how and why adult industry professionals enter this type of industry. 

Though not the only defining factor, the ability to do adult work in a particular location is dependent on the rights to free expression on the internet and how these rights are upheld by these governments.

We at Adult Site Broker know that this could be the issue of our time.

Section 230: Decency Act of 1996

Only Western Values? 

Freedom of speech and expression is synonymous with the United States and countries like Canada and the United Kingdom. This protection is also held as a basic human right under the purview of the United Nations and other groups.

Being that some cultures and countries don’t hold these sentiments, it is important to understand why so many companies and site operators in the porn space rely on U.S. legal standards for free speech, model compliance and recordkeeping, age verification, and more. This includes why so many in the adult industry work to defend laws like Section 230, viewed as “the First Amendment of the internet.”

International Views on Sex & Porn in Culture

The adult entertainment industry is controversial no matter how accepting our society will be of sexual freedom in our private lives. Most countries in the Western hemisphere are accepting, to some extent, over consensual adult content being produced and made available on the internet for other adults to view. Countries like the United States, Canada, Argentina, Colombia, the United Kingdom, and Spain are just a few. Barring a rash of anti-digital rights initiatives backed by the UK government and the European Union, this standard of acceptance is commonplace leaving pornographic content as a cultural element.

However, this isn’t the case in other countries. China, Russia, Indonesia, Malaysia, India, and many other countries (one’s who even claim to be bastions of human rights and free expression) regulate or outright ban pornography. The Chinese Communist Party, to note, regulates and prohibits “pornographic” and “obscene” content that is viewed as counter-revolutionary and a distraction to the ethics of the nation.

There are  a plethora of cases in Islamic Asia, especially in Malaysia, Thailand and Indonesia, where citizens and tourists are arrested for simply posting content to their OnlyFans and/or their social media accounts.

Another recent case includes an Egyptian fashion model facing criminal charges for posing in a historical cosplay of an ancient Egyptian princess. The controversy rests with the revealing nature of the costume and the location of the photo shoot which was at a significant site of historical and cultural importance.

Section 230 Basics

Section 230 of the Communications Decency Act of 1996 is a benchmark law in the United States that serves as the legal protection for all companies who utilize the internet for the dissemination of speech. 

We know that this is a very broad definition, but the law is itself broad. Let’s discuss the history a bit.

Mainstream Controversies Surrounding Section 230

Many of you probably know of Section 230 in one way or another. It isn’t just a political buzzword used to complain about the control of large social media and technology companies over political discussions. 

Section 230 was a favorite of former US President Donald Trump to complain about due to his belief that the world’s largest technology companies, like Google and Twitter, systemically censored politically conservative point-of-view on platforms that are owned and operated by companies that have differing views. Research by academics and media ethicists have shown absolutely no proof of these systemic biases with many in the technology space, including adult entertainment, rendering the claims false. 

Even Joseph Biden, the current US president, has criticized Section 230 but on an opposite viewpoint. Biden and progressives in the United States claim that Section 230 allows for hate speech and bigotry. While both sides complain about different things, they are looking for the same result: repeal or reform Section 230 to eliminate a provision that is known as the safe harbor provision that protects platforms.

Safe Harbor and the Era of “Communications Decency”

The Communications Decency Act of 1996 was passed by US Congress during an era when the internet was progressing at a rapid pace. Ever since the dawning of a web browser and file sharing, the digital adult industry has flourished and defined many of the industry-wide business practices still in use today. 

Groups like anti-porn organizations, child protection organizations, and religious-affiliated ministries supported the Communications Decency Act because it levied criminal and civil penalties for those who allowed the transmission of “obscene” material to minors. Given the elementary understanding of the web at the time, lawmakers essentially developed a law that would restrict the transmission of any obscene information and visual material, including sexual health information or violent news stories, that would be considered harmful to children. This law passed and quickly iced freedom of speech. 

Supreme Court Intervention

The US Supreme Court, however, ruled with civil liberties groups to render the vast majority of the Communications Decency Act as a violation of the country’s constitution and the First Amendment, which protects freedom of speech, press, religion, sexual expression, and more in the United States.

Section 230 was retained by the Supreme Court due to how this provision in the law was worded. The high court defined that this provision constitutes a statutory protection for most forms of free speech that is protected by the First Amendment. This also includes the safe harbor provision we mentioned. 

The safe harbor provision in Section 230 allows online platforms to self-regulate and moderate the content that is posted to their platform by third-party users or publishers. Such a legal right grants the companies who own the online platforms the right to ban and censor third-party content that would be viewed as harmful, illegal, or a violation of the company’s corporate culture or its terms of service. 

A Two-Sided Relationship: Social Media & Adult Content

Section 230 is often called the “First Amendment of the internet,” given its history in US case law for being tied to the First Amendment and the right to free speech online. But the adult entertainment industry has a two-sided experience with the law. While Section 230 encourages platforms like Pornhub or xHamster to regulate their own tube sites for illegal and non consensual content and report it to the proper law enforcement authorities, the law also allows a social network like Twitter to shadow ban adult content creators based on ambiguous interpretations of the law by the company and its use terms.

Mainstream social media networks like Twitter, including Instagram, Snapchat, and TikTok, are the four most popular for adult entertainment companies and adult content creators. Twitter is the only one to allow for full nudity and sex scenes, with the added age restriction protocols that the company recently implemented based on a series of rash legal challenges in countries like the United Kingdom and India. TikTok, the Chinese app, strictly prohibits nudity but is known to permit revealing outfits and “link in bio” functionality through services like Linktree, My.Bio, and AllMyLinks. The same is true for Instagram so long as frontal nudity is censored or not shown period. Snapchat is liberal with these policies given that the app is built for bit-sized, self-deleting image and text messaging between users (therefore a lot of cam models, OnlyFans creators, and indie performers “sell” access to their private Snapchat accounts).  

But we digress. Section 230 by its legal design and judicial significance protects the right of these firms and their platforms to self-regulate and moderate content to improve user experience and digital safety.

The problem though is defining what constitutes a justifiable moderation action against an adult model or porn studio. This is legal limbo and is a consistent issue in the industry. So, as you’d guess it, we as members of the adult industry depend on the protections of Section 230 for our own platforms but we must adapt quickly to the challenges to our content distribution and social media censorship through platforms we don’t own but simply use a third parties trying to generate traffic and leads for new fans.

Section 230 as a Civil Liberty

Section 230 in many contexts is a civil liberty that is protected by federal statute in the United States. At least, that is how civil liberties and digital freedom groups define Section 230. For example, civil liberty and digital freedom groups like the Electronic Freedom Foundation, the American Civil Liberties Union, and the Wikimedia Foundation hold that anything that would challenge the current form of Section 230 would infringe on freedom of expression for virtually every website that is used by American citizens. In effect, that would be the entire internet if we consider the borderless nature of the digital environment.

Notably, the Woodhull Freedom Foundation has teamed up with other civil liberties and human rights groups to challenge the controversial law FOSTA-SESTA. FOSTA-SESTA is a law that was signed during the Trump administration with the spoken goal to counter human trafficking and sexual exploitation on the internet. While the goal is genuine, the law intends to counter this sort of crime by posing Section 230 as a law that enables these practices at epidemic rates. This isn’t the case, though. FOSTA-SESTA, according to the Woodhull Freedom Foundation’s lawsuit, violates the First Amendment and Section 230 through a means that restricts constitutionally protected and consensually produced adult content on the web.

We at Adult Site Broker hope you’ve enjoyed this post. Please reach out to us if you have any questions.