Sex Creators – A New Marginalized Profession that needs to be understood

Don’t be quick to judge the marginalized “Sex Creator” profession! A lecturer at Chula’s Faculty of Law urges all parties to understand the changing social context, and the government to regulate rather than suppress those in this profession while ensuring protection for all genders, and promoting sexual health and legal freedom of expression.

Anyone who has been following the news would know about the recent raid and prosecution of pornographic content creators, also known as sex creators, on the online platform OnlyFans.

The news sparked a widespread debate on the appropriateness of sexual content, sex creators, freedom of expression laws, and the work of police officers.  Dr. Pat Niyomsilp Lecturer, Faculty of Law, Chulalongkorn University invites us to question and consider this phenomenon in a comprehensive way, including the social, cultural, and legal aspects for proper understanding and coexistence.

What is a Sex Creator? Old profession, New Channels?

If you were to Google the term, you might get a rough meaning of Sex Creators as those who produce adult content that may be considered obscene to earn money from online streaming channels.

“Pornography or explicit sexual materials are not new and have been around since the birth of human civilization.  Prostitutes and concubines are probably the oldest-known professions ever recorded.  Modern technology provides easy access to online sexual expression, and services. Shutdown or suppression of these pornographic channels may no longer be the right answer to the current situation.”

Dr. Pat noted that in addition to adult content, there is a wide variety of other content on the OnlyFans platform.

Are Sex Creators illegal?

As to whether sex creators on OnlyFans are illegal? Dr. Pat explained, “this has to be looked at in context as to what laws could be applied. For example, under the law against prostitution, the sex creators on the said platform may not be considered prostitutes, are involved in the sex trade, or use the platform as a place to find customers and then go to different locations to trade sex.”

The Prevention and Suppression of Prostitution Act defines ‘prostitution’ as consensual sexual acts or any other acts to provide sexual satisfaction of others for hire or any other benefits, regardless of whether the person receiving the acts and the perpetrator is a person of the same or different gender. Section 7 of the said Act states that the principles regarding advertising of services that whoever advertises or receives advertisements, solicits or recommends the services through publications, or makes known widely in any way to the public that can be seen as a claim or contact for prostitution of themselves or others are punishable by imprisonment from six months to two years, or fines ranging from 10,000 baht to 40,000 baht, or both.

“The sex creators on the OnlyFans platform must be considered on a case-by-case basis whether they fit the criteria of prostitution offense; or if there has been an invitation or appointment to commit the sex trade, as well as to determine if the sexual intercourse is for hire or any other benefits. If only one sex partner is filming with the creator, it is unlikely to be called a licentious act in the legal sense.  In addition, OnlyFans is one of several platforms that block access to content for people under 18, and a fee is required to access the blocked contents.”

Sex Creators’ Scope of Freedom of Expression

Dr. Pat said that freedom of expression is protected by the International Covenant on Civil and Political Rights (ICCPR) in Article 19 Paragraph 2 which states that “each individual has the right of freedom to seek, receive and disseminate information and ideas of all kinds, regardless of frontiers, whether verbally, in writing or print, in the form of art, through any other medium of his or her choice.”

However, there is a restriction in the last Clause of the Act that the exercise of the rights provided in Clause 2 of this Section requires special duties and responsibilities, and may be limited.  The limitation to the rights should be enacted as law, and is indeed necessary.

Respect for the Rights and Reputation of Others

As far as sex creators are concerned, Dr. Pat believes, “most people would agree that it is one form of expression, but the question as to whether the sexual expression is protected under the freedom of expression law depends on how we interpret the term ‘morality of the people’; who would be the judge?, and, what criteria would it be based on? This is because each country has distinct criteria and levels of acceptance. For example, the guidelines for the portrayal of explicit content in the U.S. are different from those in the U.K. and Japan.”

The Fate of Sex Creators under Thai Law

According to Dr. Pat under Thai law, there are two places where pornography offenses are found: under the Criminal Code Section 287, and Computer Crime Act Section 14 (4).

However, neither Act provides a specific definition or explanation of the term “pornography”, so the Supreme Court has to adjudicate based on its previous ruling, which can be summarized in two ways:

Displays of sexual explicitness, nudity, genitalia, nipples leading to obscenity, sexual arousal such as sitting with legs wide apart, rubbing the genitalia area even if the genitals are not seen as in Supreme Court Petition 6301/2533 that exhibits an image of a topless woman wearing pants or a skirt, with one hand reaching in to touch her genital.  Although the genital is not seen, it is considered sexually provocative and ruled obscene.

However, if a nude picture has artistic value, and is not presented provocatively, it is not considered obscene. For example, in Supreme Court Petition 978/2492, an image of a topless woman with the vagina blurred out to portray a healthy benefit of sunbathing, or teach drawing and the aesthetics of body anatomy is not obscene, or seductive, so it is not deemed pornographic.

The aforementioned verdicts show that if nudity is sexually provocative, it loses all its artistic value by default, but this depends solely on the judge’s interpretation. 

“Therefore, the legality, limits, and protection of the expression by sex creators on OnlyFans and its interpretation under the law in Thailand rely solely on the judge’s discretion and subjectivity.  On the contrary, in countries where common law is practiced, the jury will adjudicate the matter.  Yet, naturally, the ruling on pornographic content mostly is the discretion of the judge.  However, if the Supreme Court petitions and opinions are always followed without considering the social context, it is like having the dead rule over the living, and freezing the public’s moral standards in the past.”

The Government’s Role on Sex Creators – to Regulate, not Suppress

Dr. Pat cites examples of highly liberal countries that consider sexual expression to be normal. Individuals can freely express their gender identity or choose their sexual orientation. Therefore, pornography is one form of information that should be accessible to people.  The only exception is when the state restricts this freedom to uphold the people’s morality. The scale of this restriction varies from society to society. For example, nude beaches are allowed in some cities, and countries while banned in others.

However, no matter how sexually liberal, the same is true of the restriction of nudity and pornography for harm prevention (harm rationale), such as youth protection.  Sexual offenses such as rape, molestation, sexual acts leading to psychological harm, violent or unhealthy sexual behavior, sodomy, sadism, and rape pose a threat to children, young people, and women.  

The approach to pornography lawsuits in many foreign countries includes exhibits of images of sexual activities at issue, and those excluded from prosecution expressly. For example, the UK allows showing vaginal and anal intercourse, oral sex, and sexual activity with various objects that do not show a physical violation, but realistic portrayal of rape, sadomasochism so violent it causes bodily injury, or perverse and humanly degrading activities are forbidden, etc.

“The Thai law hardly leaves room for pornographic media, except for those that cover up the nipples and genitalia while posing no apparent sexual provocations.  With the changing perception of pornography and obscenity, especially in the post-Internet world with Twitter and OnlyFans, Thailand also has the Computer Crime Act to keep the lid on the matter even further.”

“Is it time that Thailand had a list of permissible pornographic materials, and those that can be prosecuted by law like other countries as in the examples given here?” asks Dr. Pat.

“Why is it that prostitution that people well know is unlawful can be operated openly, whereas sex creators on OnlyFans are handpicked to be prosecuted? This is what the society is questioning.”

Dr. Pat also noted that the current law enforcement against pornography focuses only on suppression, and in many cases is simply making an example out of it.  We all know that to catch them all is impossible.  Yet, why are some sex creators being prosecuted?

Ultimately, what Dr. Pat wishes to see is that Thai people enjoy better sexual health, more rights, and the freedom to choose and express their sexual orientation without being restricted by law as long as the exercise of this freedom does not harm themselves or others. Thailand should make room for people to express their sexuality honestly and healthily while being equally protected by law, both the sex creators and their clients.

“Suppressing or prosecuting sex creators or even sex workers may not be a good approach under current social conditions as it pushes these marginalized groups into the shadow where they may be harmed or exploited without access to legal protection. The role of the government should be to regulate and define areas and activities where people can express themselves openly for the benefits of their sexual health, and the interests of the country,” Dr. Pat concluded.