criminal-law united-kingdom business online child-porn
Why are the owners of OnlyFans not arrested for profiting from child pornography?
<p>Over the last three months, the BBC has been reporting about children selling pornographic images and videos of themselves on British online platform OnlyFans. They also reported that it was easy to circumvent any age checks and set up an account as a minor.</p>
<p>(see e.g. <a href="https://www.bbc.com/news/uk-57255983" rel="nofollow noreferrer">The children selling explicit videos on OnlyFans</a> from May 27th)</p>
<p>After these reports, employees of OnlyFans, who were hired to moderate the content, have come forward and revealed that they were asked to be lenient when they found illegal content by popular content creators who were bringing in a lot of money. They also talked about other types of illegal content, such as incest, bestiality and pornographic images and videos containing people who had not given consent to be photographed or filmed; the presence of such material on the platform has been confirmed by the BBC reporters.</p>
<p>(see e.g. <a href="https://www.bbc.com/news/uk-58255865" rel="nofollow noreferrer">OnlyFans: How it handles illegal sex videos - BBC investigation</a> from August 20th)</p>
<p>The owners of OnlyFans, who receive a commission on all sales on the platform, have responded with the usual excuses that online platforms use: there is too much content being uploaded for them to be able to check everything, the illegal content is only a small fraction of the total content, all online platforms have this problem, etc.</p>
<p>However, if I lent my laptop to a friend or colleague, and they noticed that I had been using it to sell child pornography online, and they alerted the press or the police, I would expect to be arrested within 24 hours, and not receive any lenience when trying to use excuses such as &quot;I don't know what stuff is on my computer&quot; or &quot;it was only a small fraction of the files on my computer&quot; or &quot;everyone's doing it&quot;.</p>
<p>So my question is: <strong>why are the people who run OnlyFans not (yet) behind bars?</strong></p>

<p>Criminal liability is triggered by guilty knowledge. The people who run OnlyFans may know in general terms that it is probable that some illegal images exist on their servers, but so does everyone who allows the public to upload stuff. If that was illegal then the senior management of Google and Facebook would be liable to arrest on the same grounds and the Internet as we know it could not exist.</p>
<p>Once the company <a href="https://law.stackexchange.com/questions/29644/is-one-liable-if-illegal-material-is-found-on-ones-own-server?rq=1">becomes aware</a> of a specific file that contains such material they need to remove it. If they fail to do so then they become liable. OnlyFans has been doing this:</p>
<blockquote>
<p>[OnlyFans] provides templates for each successive warning - explaining why material <em>has been removed</em>, and that failure to comply with terms of service may result in the closure of the account. [emphasis added]</p>
</blockquote>
<p>The site operators also become liable if they have a general policy of <em>tolerating</em> illegal material. This is a grey area; a prosecution would have to prove that the toleration was an active policy rather than merely ineffective moderation. There doesn't seem to be any evidence to support such a claim. Permitting an account to continue after deleting an offending file is not toleration of the offending file.</p>
<p>The BBC report does not allege that the OnlyFans policy of multiple warnings has been applied to cases of underage content; rather it talks about cases of incest, bestiality and exploitation of vulnerable adults (such as homeless people), and only where the accounts were particularly popular.</p>
<p>The linked articles do report cases where accounts have been set up advertising content by minors, but they were shut down as soon as the company was notified of them. The second article also quotes its source as saying that lots of such accounts get closed down all the time; there doesn't seem to be any evidence of toleration of that material specifically.</p>
<p>So in conclusion it seems from the available evidence that OnlyFans have been complying with the law. It is telling that the BBC article specifically does <em>not</em> say that they have done anything illegal. If the BBC had found unambiguous evidence of illegal conduct by OnlyFans management then they would certainly have highlighted this.</p>

<p>Under U.S. Law, <a href="https://www.law.cornell.edu/uscode/text/47/230" rel="nofollow noreferrer">47 U.S.C. § 230</a> (<a href="https://www.eff.org/issues/cda230" rel="nofollow noreferrer">commonly known as &quot;Section 230&quot;</a>) provides immunity for Internet Service Providers from liability for content posted voluntarily by users of an Internet Service Provider. While it doesn't bar criminal prosecutions, those statutes generally require a knowing act and intent to commit it, which an ISP would generally lack in a Section 230 protected scenario.</p>
<p>The Communications Decency Act of 1996, of which Section 230 is a part, was amended <a href="https://en.wikipedia.org/wiki/Section_230" rel="nofollow noreferrer">on April 11, 2018</a> to create a narrow exception for continuing to operate a service known by the ISP to be used for human trafficking, but it isn't very widely known and doesn't cover all kinds of online sexual content.</p>
<p>More prosaically, this isn't a law enforcement priority. Law enforcement tends to be complaint driven. When people don't complain about illegal activity, it isn't brought to the attention of law enforcement and the squeaky wheels tend to be given higher priority in law enforcement enforcement.</p>
<p>This is particularly true here where the alleged offenders are outside of the territory of the vast majority of law enforcement bodies that might show an interest in beginning a prosecution, requiring transnational extradition requests and more out of the ordinary efforts to take action upon. Often law enforcement won't even know without considerable investigation, where the alleged criminals are located physically, even if there is a complaint lodged with them, but they need to know that to make an arrest.</p>

<p>There is really no way to know the answer to this. It might be because Law Enforcement is investigating and building a case. It might be because having investigated, there are flaws in the case so that conviction is not likely. It might be because for some reason law enforcement or the prosecutor's office has given a low priority to the case, but that sounds unlikely.</p>
<p>Also, in some cases the operators of  a site are criminally liable for unlawful content posted there by others. In other cases they are not. LE and/or prosecutors will need to determine if such criminal responsibility applies in a particular case. Trying to specify when such liability applies in a particular jurisdiction would be an answer to a different question, in my view.</p>
<p>Ther is no way for someone outside of the law enforcement/prosecution team to know the team's motives, or what it might be doing out of public view.</p>
