The Criminalisation of OnlyFans | Josh McCauley

The rise of OnlyFans has reignited the pornography debate in the digital age over the last two years. It has moved ‘sex work’ from an in-person problem to a digital one. Over the last few years, we have seen OnlyFans content creators live a ‘glamorous’ life with some content creators making millions. This brings forward the argument that OnlyFans creates a positive image of sex work. This would no doubt convince uncorrupted minors to potentially take up ‘Sex Work’. My aim in writing this article is to provide a case for criminalising services such as OnlyFans. I will be providing the theory behind criminalising OnlyFans, and the current law as it stands. 

The Enforcement of Morals

There is no concrete argument behind the theory of criminalisation. Instead, there are three main theories behind the criminalisation of conduct in society. The United Kingdom has traditionally, mixed all the theories when tackling different issues in society. The two competing theories are the morality theory (Lord Devlin) and the harm theory (John Stuart Mills). When conduct is criminalised, there is always a rationale behind it which fits the theories that I have mentioned. Murder for example fits both under the morality theory and the harm theory. Others, fit in one but not the other. However, when discussing OnlyFans the morality theory is the appropriate theory to use as a rationale for criminalisation.

The brain behind the morality theory of criminalisation is Lord Devlin. In his book ‘The Enforcement of Morals’ he laid the groundwork for making the case for criminalising conduct based on morals. Firstly, Lord Devlin argues that ‘morals and religion are inextricably joined, with the moral standards of the west linked with Christianity’. Our country has a state religion (Christianity) and despite Christianity unfortunately declining over the last fifty years whether you like it or not our sense of morality is based on Christian values. For example, committing adultery, stealing, and murder are all immoral not because society has suddenly deemed them to be immoral but rather because Christian teachings have deemed them immoral. If you are an atheist your standard of morality personally may not be based on religion but the reason why you think adultery is wrong for example is that historically society has deemed it morally wrong through Christianity. Things such as ‘sex work’ has been deemed immoral by Christian teachings which have led to the view amongst society that sex work is wrong. Therefore, if morality in the UK is based on religion how does this link to the law? You may validly provide the argument that morality has no place in law. However, as Lord Devlin suggests, for that argument to succeed you would have to undo the basis of our criminal system. Lord Devlin states that if that view was taken then the criteria for criminalisation would make illogical sense in some areas. For example, consent is no defence to murder. If I asked you to shoot me and you, did you would be liable for murder. This is because the morality theory is used behind the justification for criminalisation of that conduct. Therefore, without using morality as a justification for that example the law would have no valid rationale behind it. The harm principle would not fit in as the action of shooting me is not causing me harm as I requested it.  This is important because for something to be criminalised it must have a valid justification. Therefore, I submit that the morality theory behind criminalisation cannot be thrown out of the equation simply because liberals think morality should not be used as a justification for criminalisation. Lord Devlin acknowledged this himself by stating if criminal law was to reform to eliminate morality everything that was designed to protect morality or to protect society from corruption would be eliminated. This would present a huge challenge as the foundation of many of our laws are based on morality. Therefore, when talking about OnlyFans the morality theory is a sound argument for criminalisation. You may disagree with that view however, to simply state that morals have no place in criminal law you would be incorrect.

The Morality theory behind the criminalisation of certain conduct as argued is a valid view that is consistently used as a rationale to criminalise certain conduct. Therefore, how could it be used as a rationale to criminalise services such as OnlyFans? Liberals put forward the view that the state has no business to regulate conduct performed through services such as OnlyFans, as it is ‘none of the state’s business. This rationale has been used against the criminalisation of prostitution. In the UK prostitution is technically not illegal rather the solicitation is. Lord Devlin acknowledged this by stating, morality should not be used in itself as a rationale for criminalisation rather that it needs to be combined with a set factor such as indecency, corruption or exploitation. This presents a two-step requirement on whether something meets the morality rationale behind criminalisation. First, you must ask if the conduct in question is immoral? If yes if it leads to indecency, corruption, or exploitation then the conduct would meet the morality rationale for criminalisation. Therefore, this is the reason why solicitation is illegal rather than prostitution itself. 

Then why should we criminalise OnlyFans? Liberals would argue that OnlyFans should be a free choice for an individual to make, yet we have OnlyFans content creators advertising their life of luxury through social media. For example, rapper Danielle Bregoli made record-breaking earnings from OnlyFans on her 18th birthday. This was highly reported all over social media. Therefore, I ask what sort of message does this send to teenage girls? If society is showcasing OnlyFans as a legitimate high earning job, then surely the immoral activity of sex work is leading to the corruption of the minds of our teenagers. Furthermore, corruption of the mind cannot be limited to teenagers. Imagine a single mother working a minimum wage job and she sees the potential to sell herself on OnlyFans to earn thousands. The showcasing of this immoral behaviour is leading to corruption in our society. Relating to the two-step requirement of the morality theory most in society would agree to an extent that sex work is immoral. Secondly, the glamorisation of sex work through OnlyFans is corrupting society thus meeting the requirement of the morality theory and as such provides a valid rationale for the criminalisation of services like OnlyFans. Furthermore, the pornography sold on OnlyFans provides yet another argument and discussion on why it should be criminalised. However, that argument is best left for a further debate on pornography itself.   

Could OnlyFans Content Creators Already Be Breaching the Law? 

An interesting observation is that OnlyFans content creators could already be breaking the law. The Obscene Publications Act 1959 deals with obscene publications. The act states that the publication of an obscene article is a criminal offence. Therefore, what does obscene mean? The legal definition is confusing it states that ‘an article is obscene if it has the effect of a tendency to deprave and corrupt any persons who are likely, having regard to all the circumstances, to read see or hear the matter contained or embodied in it’. An article does not have to be a photo it can be written. The key issue of this law is the vagueness of it. Deprave and corrupt was never defined in the act and it is up to a jury to decide the meaning of it based on the offending article. However, judicial guidance has suggested that corrupt is to mean to destroy the moral purity of the reader or viewer(R v Penguin Books). Therefore, an argument can be made that OnlyFans content creators who advertise their work on social media may be in breach of the law. As I have mentioned an article can be in written form so any advertisements from content creators on social media could be in breach of the law. There is a legal precedent for cases such as this. In R v Skirving a publisher was found liable for publishing an obscene article as his pamphlet glamourised the life of a cocaine addict. Does this sound familiar in the context of OnlyFans? Furthermore, when determining whether something is obscene the likely audience should be taken into consideration. The idea behind this is a younger person would more likely be depraved and corrupted than a sixty-five-year-old man. Therefore, in the context of OnlyFans when a content creator advertises on social media it would highly be likely that any age group could see it including minors. Thus, a valid legal argument could be presented that OnlyFans content creators are already in breach of the law. However, this is only in name. The Crown Prosecution does not prosecute under this act unless there is an aggravating factor such as deception of sexual violence. Therefore, although legally OnlyFans content creators could be breaking the law in reality there is never a chance they would be prosecuted. 

Overall, the sexual revolution which started in the 1960s has gone too far with the emergence of services such as OnlyFans. I have argued throughout this article that the morality rationale should be used as a justification to criminalise OnlyFans. If we do not act against services such as OnlyFans we will find ourselves in a world where our future children would deem sex work as a viable career. 

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