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Nocella's “Producing BDSM content on porn platforms: a day in the life of Countess Diamond” (2023)

“Producing BDSM content on porn platforms: a day in the life of Countess Diamond”

Because Diamond’s sex work brand is very popular, she feels the pressure of her labour and wants to make sure that she maintains the high quality of her products while preserving her assistants’ well-being. Yet Diamond fears that her need to invest more in the company is hindered by the power that porn platforms exercise on her own work, which increases her own expenses, physical and mental energy without supporting her from a labour law perspective.

While working around her home life balance, her biggest challenge is not really the fact that she has to put such a mental and physical workload in producing her content, but the platforms’ blockers:

“The content that you create that is desired by the consumer is not always permitted on some websites. So, for example, lots of people enjoy the forced coercion of, let’s say, a blackmail fantasy. Now I’m a professional. There is no way I’m going to do anything that puts my submissives or my fans at risk, and there is nothing I would do that would harm them in real terms.” (Diamond, personal communication, 19 January 2023)

Despite the fact that Diamond ensures no one is harmed in her content and she merely role plays and merely performs inflicting pain to her assistants, she was threatened twice by OnlyFans and AVN Stars that all her content would be taken down from the platform:

“AVN Stars literally just like said, you are going to be gone in one month and immediately saw my income drop that day. And I had a month left to create a whole new home essentially.” (Diamond, personal communication, 19 January 2023)

BDSM content creators’ freedom of production is impacted by the incompatibility to consent to harm under English law (Dymock 2012, 56). I have argued (Nocella and Chiaro 2023) that both the vague definition of extreme pornography, which includes realistic depictions of life-threatening acts and acts that might harm bodily parts (McGlynn and Bows 2019, 481), and the 2014 Audiovisual Media Services Regulations prohibition – even through role play – of on-demand porn consumption involving pain, leaves female-dominant pornography worse off (Willson 2018, 428, 436).

“So you create this world and you pay people to film you. You spend your time filming it. You then send that to your editor, who then edits it. You send it to your assistant and she then uploads it. And then you find that suddenly that word is banned. And you can’t put that content online because that one word is banned. And the content that you have been lovingly creating for an audience that are ready to buy it is suddenly just not allowed. Just gone. … So that’s a struggle.” (Diamond, personal communication, 19 January 2023)

The lack of specific guidelines on what can be exactly permissible on porn platforms leaves Diamond with the only certainty that (Beresford 2014, 380; Barnett 2016, 37; Dymock and Lodder 2016, 320; Petley 2019, 241; Bronstein 2021, 368):

“… change will happen. You know change is going to happen. You don’t know when you just need to be prepared for it.” (Diamond, personal communication, 19 January 2023)

Even if Diamond is satisfied with her self-employed status, she recognizes the employer-like power exercised by platforms over her work. They determine how she should perform her content but also the price at which she should sell it. These elements seem to support the fact that porn platforms act in one of the ways courts have traditionally described employers’ control over what and how employees should perform their work (Keane 2016, 84). Crucially, the fact that ACCs [Adult Content Creators] benefit from flexibility and independence is not incompatible with the idea that platforms have employer-like power; courts now say that employers might leave their workers with some autonomous control over their work, freeing them from a day-to-day type of control as long as employers can step in to give directions.

[P]orn platforms hide their control behind ACCs’ flexibility and independence, freeing themselves from labour law liability. Some of the indicators used to establish that drivers work for Uber are analogous to Diamond’s reality and are mainly related to the control that platforms exercise over ACCs.

Although it may seem that platforms adopt a similar policy to prohibit prostitution and sex trafficking, ACCs are not allowed ‘to arrange face-to-face meetings outside the Website or offline with any creator or other user’ in ‘any form of interaction’, not even ‘to share personal contract details’:

“I am not permitted to discuss meeting them. If I go to a Fetish event that is happening in, I think it’s July in Florida and then I message somebody and I say it was wonderful to meet you. You’re done. I could get in so much trouble.” (Diamond, personal communication, 19 January 2023)

Diamond feels that the prohibition of face-to-face encounters is made to block her own opportunity of being invoiced full price without the platforms retaining fees

In the same way that Uber drivers’ accounts can be blocked by the app, porn platforms reserve the right to suspend, block or terminate Diamond’s account at their discretion and for any violations of the terms of use just like employers.

The terms of use of porn platforms should equally be put aside because they arbitrarily establish their intermediary status leaving users with no bargaining power, meaning with no opportunity to contract in their best interest. ... ACCs’ limited control over their work suggests that porn platforms act more like employers rather than intermediary agents (Cohen 2017, 185).

Diamond struggles to take up business risks because the terms of use lack a clear definition of what she is allowed to produce being a dominatrix content producer. The power of platforms over what she can substantially produce and sell puts her in a very unstable position that does not allow her to take any investment risks to improve her sex work brand. In other words, the freedom of trade that should come with entrepreneurship is seriously undermined by the control of platforms

From a labour law perspective, retaining percentages from ACCs’ payments and blocking ACCs’ accounts if they attempt to get paid without the mediation of the platforms show that ACCs are a fundamental part of the platforms and likely workers for them (Cruz 2020). Labour law does not prevent ACCs from being self-employed and workers altogether merely because their work reality is complicated by clients’ payment (Bogg 2020).

Diamond is an eager entrepreneur, but she is held back due to the instability caused by platforms which place her in a limbo of not knowing whether her content will pass their controls. As well as giving them percentages of her earnings, Diamond cannot meet her clients without their mediation or her account will arbitrarily be blocked. If, following UK courts, Diamond was to be recognized as both self-employed and a worker for the platforms, core labour law protections could empower her business (like that of many other ACCs) through the needed economic stability and mental security to successfully invest in her sex work brand.

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