The Ethics and Legislation of Sex Work and Pornography in a Technologically Evolving World
By ESG McGill Analyst Johanna Lau
Long a controversial industry, sex work as a profession is an ethical question under the scrutiny of governments, religious groups, and legislation. Though a few countries have decriminalized prostitution, the development of new technologies further complicates legislation worldwide.
A Brief History of Sex Work and Prostitution
Sex work has been prevalent throughout human history and in many cultures. The earliest accounts of prostitution date back to 2400 BCE in the Sumerian Records; sacred prostitution was considered temple service work and was accepted and legitimate as a profession. The first recorded instance of regulations for women in sex work was the Code of Assura in 1075 BCE, which legally required all women except prostitutes to wear veils in public, thereby distinguishing sex workers.
Despite this, legal brothels still existed in China, Ancient Greece, and other parts of the world until the Roman Catholic Church placed regulations in Europe in 180 BCE. Prostitution was first criminalized in Spain in the late 500s, which was decreed by the Visigoth King of Spain on the basis that sex work was incongruent with Catholic values.
Sex work remained federally permissible in the US until the Committee of 15 was established to investigate and lobby against prostitution and gambling in New York. This eventually led to the passing of the federal Mann Act, which criminalized prostitution and other forms of sex work.
Countries in Asia like China and Japan did not ban prostitution until 1949 and 1956, respectively. In most Asian countries, prostitution is illegal, though services can still be found. Some countries like Singapore have government-regulated brothels.
What does legislation in favour of sex work look like today?
With the Prostitution Reform Act, New Zealand was the first country in the world to decriminalize prostitution and give new rights to sex workers. This act was passed in June 2003, attracting worldwide attention and mixed reactions. Belgium was the second country in the world to decriminalize prostitution on June 1st, 2022.
In Canada, Bill C-36: The Protection of Communities and Exploited Persons Act prohibits prostitution. While the prostitution transaction (i.e., purchase and sale of sexual services) is illegal, the sale of sexual services is not criminalized. This means that those who sell their own sexual services are protected from criminal liability. This bill received Royal Assent in November of 2014 and is still the predominant legislation in Canada that governs sex work.
The Original Ethical Question: Should sex work be criminalized?
Historically, the criminalization of sex work has been tied to religious values and influences which perpetuate sexual stigma. While this article seeks not to dissect the ethics of religion, we must acknowledge that the criminalization of prostitution leads to institutional issues.
In this paper published in the AMA Journal of Ethics, the authors argue that criminalizing sex work leads to increased human trafficking due to the marginalization of vulnerable communities created by legislation. Punitive laws not only stigmatize sex workers but also create barriers to reporting exploitation and abuse. Fear of law enforcement leads to unsafe health practices and the spread of STIs for those in sex work; the possession of condoms and other health measures are discouraged as they provide evidence for law enforcement to prosecute and arrest sex workers.
The decriminalization of prostitution must be accompanied by support policies such as reporting structures, legal requirements and criteria, and other mechanisms that ensure the safety and legal protection of those involved in the trade.
How is sex work evolving alongside technology?
Business Ethics in the Gig Economy: OnlyFans and PornHub
The Gig Economy is defined as “a segment of the service economy based on flexible, temporary, or freelance jobs, often involving connecting clients and customers through an online platform.” These services can range anywhere from car rides with Uber to pornographic content with OnlyFans. Now a household name, the OnlyFans platform exploded during the pandemic when strippers and other sex workers found themselves jobless.
Compared with other platforms like PornHub, OnlyFans offers more protection for those who sell their content. Creators, or “Performers,” can “lock” their content and charge viewers more for custom content, thereby removing intermediate steps and placing money directly into the hands of performers. OnlyFans also requires proof of legal age and a tax form, making earnings taxable.
On the other hand, PornHub only requires a government ID to receive payment. The person who uploads the video is also the only one who can take it down, making reporting for illegal content much more difficult. Users can also upload content to multiple domains simultaneously, leading to a faster spread of videos. Almost 19 000 videos are uploaded daily, many of which are alleged sexual assaults that were filmed and uploaded.
Though OnlyFans has its benefits, some creators, like Tilly Lawless, have criticisms. Given the percentage ranking system, building an audience on the platform is difficult without a previously established following. Established influencers and celebrities have the easiest time making money with the competitive and hierarchical structure.
As well, the platform favours individual content. In-person sex workers’ content (i.e., content created with another person) can be shut down, and their earnings can be seized regardless of the legality of where the performer operates. This is due to the company not wanting to be held responsible for people soliciting prostitution.
The cross-border nature of online platforms complicates legal protection, though OnlyFans remains a legal gray area in many countries.
Deep-Fake AI: DeepNude
Various apps use deep-fake AI to superimpose people’s images onto videos and pictures. While this may seem like harmless fun, the research company Sensity AI found that 90–95% of deep-fake videos are nonconsensual pornography.
Different apps for deep-fakes keep emerging and being banned in an endless cycle. One such app is DeepNude, which “undresses” images of clothes people to create an AI-generated naked image. This app, however, only works on women.
The creator, Alberto, claims in this interview that he experimented and created the app out of enthusiasm for technology, fun, and curiosity. However, he did also question himself about the ethics of the technology.
“I also said to myself: the technology is ready (within everyone’s reach). So if someone has bad intentions, having DeepNude doesn’t change much… If I don’t do it, someone else will do it in a year.”
In June 2019, the creator took the app down.
Undoubtedly, technology develops more quickly than the law. It took many years for laws addressing nonconsensual pornography, like revenge porn, to be implemented. While some places like California and Virginia have specific laws for deep-fake pornography, there are no federal laws in the US. One can potentially get legal recourse for some causes of action, however, such as copyright infringement, defamation, violation of privacy, appropriation of personality, and human rights complaints.
In Canada, laws against nonconsensual pornography were introduced in 2014 through the Protecting Canadians from Online Crime Act. Once again, however, there are currently no laws specifically regarding deep-fake pornography.
While technological advances offer opportunities to make extra money, the delayed nature of legislation following technology results in a lack of protection for users. Businesses not only have a legal responsibility to those who use their services but also an ethical responsibility to consider how their product will be used. Regardless of the industry, businesses and technology developers must consider the potential harm their technology can cause to people’s livelihoods, privacy, and well-being.