OnlyFans and beyond. Is decriminalization of digital adult content necessary?
When a "scheme to protect ’porn offices’ in three regions" was exposed in May, with even the driver of a deputy interior minister involved, virtually everyone was saying that this was only part of a larger system. Concurrently, news repeatedly surfaced about the police serving notices of suspicion to various individuals for selling, or simply sending to a partner, their own nudes, meaning photos showing varying degrees of nudity.
At the same time, the Chairman of the Verkhovna Rada Committee on Finance, Tax and Customs Policy, Danylo Hetmantsev, even held a meeting with prominent OnlyFans models, urging others in this sector to legalize their income and pay taxes. However, look at the previous paragraph. For such legalization, the police can open criminal proceedings under Article 301 of the Criminal Code of Ukraine (importation, production, storage, and distribution of materials officially classified as pornographic, as well as coercion to participate in their creation). On the other end is the State Tax Service, which imposes fines for tax evasion on earnings generated on digital adult content networks.
The necessity to resolve this issue was obvious. For a year and a half, draft law No. 12191 awaited consideration, referred to as "on the legalization of porn" by its opponents, or "on the legalization and decriminalization of digital adult content" by its supporters. In May, MPs failed the vote, not providing enough votes even for the first reading.
A few weeks ago, an updated draft law (No. 15294) was registered in the parliament, which has a chance of being considered in the near future. It focuses on strengthening liability for child pornography and sexual exploitation. This is even reflected in the title: "On Amendments to the Criminal Code of Ukraine Regarding the Strengthening of Liability for the Production and Distribution of Child Pornography."
The main innovation is the abolition of criminal liability under Article 301 of the Criminal Code in cases where it concerns adults and is done by mutual consent.
"THEY KICKED IN THE DOORS, HE PAID A $10,000 BRIBE"
Over the last 10 years, more than 15,000 criminal proceedings have been opened under this article in Ukraine, with over 3,000 new proceedings in the past two years alone. Concurrently, we have acquired a shadow market, regular bribes, and restrictions on an individual's freedom to voluntarily control their own body. Needless to mention the economic impact on the state, the exact figure of uncollected taxes is still debated.
"This is not about taxes; it is more about fighting corruption. Paying taxes is rather a pleasant bonus," insists the author of both draft laws, MP Yaroslav Zhelezniak.
However, legalization and tax payment currently serve as one of the grounds for criminal prosecution.
Attorney Iryna Shramko notes that by paying taxes, creators on OnlyFans and other similar platforms generally acknowledge the fact of conducting such activities.
"If a person is located on the territory of Ukraine at that moment, law enforcement agencies can interpret this as conducting the respective activity specifically within Ukraine. Consequently, a risk arises that such activity will be regarded as a violation of the current Article 301 of the Criminal Code of Ukraine. There have been cases where a person paid taxes, and after some time, criminal proceedings were opened against them. That is, the payment of taxes in itself, unfortunately, does not eliminate criminal legal risks.
Therefore, it is no surprise that I have experience in the cancellation of tax penalties. Individuals who file such appeals generally justify them not by a reluctance to pay taxes, but by a reluctance to officially admit the very fact of operating in this industry.
"That is, their motive is not to avoid paying altogether, but rather to avoid creating additional risks of potential criminal proceedings for themselves. A segment of these individuals could operate as individual entrepreneurs or as salaried employees, but due to the existing criminal regulations, they are effectively forced to conceal the true nature of their activities in reports and documents," she explains.
Discovering "victims" through tax payments represents scandalous, yet not the most common, cases. The police open the majority of cases in situations where there is not even an official admission in the form of tax payments.
"The majority of such criminal proceedings, according to my observations, are opened not through tax data, but through so-called controlled purchases," Shramko adds. "Law enforcement officers register accounts on OnlyFans, state funds are spent to pay for subscriptions, after which the content is documented and subsequently used as grounds for criminal proceedings."
To understand what this looks like from within the industry, we spoke with OnlyFans model Yuliia, who operates from abroad, although she pays taxes in Ukraine as well. Evidently, there are cyber police officers who dedicate their entire working hours or a portion thereof to monitoring specific platforms.
"Based on my analysis, they absolutely must determine whether the model lives in Ukraine," says Yuliia. "Because, for instance, I believe they conducted controlled purchases on me as well, but to no avail. Because they will not come to my house with a search warrant.
In other words, they determine whether the model lives in Ukraine. They most likely communicate with her and gain her trust. And she reveals that she currently lives in Ukraine. Then they conduct these controlled purchases. There are also models who run OnlyFans and webcam from Ukraine, and they do not hide it; they are, so to speak, the first to be raided. For example, my friend shot porn abroad and returned to live in Ukraine. It was a long time ago, filmed abroad, but the account itself was kept active. And when he arrived in Ukraine, they came to him with raids, kicked in the doors, and he paid a $10,000 bribe."
Criminal liability under the current version of the article can arise not only in the case of commercial activity, when a person systematically creates adult content. In practice, there are also private situations, for example, when adults exchange intimate photos in a relationship, and after a conflict, one of them contacts the police or threatens to do so. Or when a phone containing these messages becomes the object of a law enforcement investigation on some other grounds. Such situations can also fall within the scope of Article 301 of the Criminal Code of Ukraine, demonstrating how broadly it can be applied.
CORRUPT CONSTRUCT AND "LEVERAGE": HOW DO CASES THAT NEVER REACH COURT END?
Have there been cases where spouses or couples exchanged nudes, resulting in the opening or the threat of opening criminal proceedings under Article 301 of the Criminal Code? Yes, there have been.
"I usually see this already at the level of news or court verdicts. Theoretically, I could take on such a case, provided it involves adults who acted voluntarily. However, in practice, many people in such cases agree to a plea bargain with the investigators to avoid spending energy and resources on a prolonged struggle, receive a suspended sentence, and do not appeal the verdict. Legally, this means they admit guilt, although they often do so not because they genuinely consider themselves criminals, but because it is an easier and faster way to close the case.
Similarly, those who work in the digital adult content industry later admit guilt: they receive a suspended sentence, do not file an appeal, and the case is closed for them in the least painful way."
How widespread is it really that either private individuals or those who post nude photos on a commercial basis effectively buy their way out of trouble with the police? In other words, are the police actually taking bribes?
"Given that only a fraction of registered proceedings reach the court, it can be assumed that a significant number of such cases disappear at the pre-trial stage. But this is merely an assumption, because we do not see the full picture.
We understand that there are situations where a criminal proceeding is not even registered, and the risk of an informal resolution of the issue arises. And this is exactly what creates a highly corrupt construct," the attorney adds.
So-called controlled purchases are conducted at the state's expense. Conducting a forensic art examination is another expenditure item. It is necessary to determine which materials are pornographic in nature and which are not. It is conducted by experts who also work within the Ministry of Internal Affairs system.
Ukrainian legislation lacks a clear definition of pornography and erotica, so the generally accepted criteria, where pornography is considered to be nudity and the display of genitals, sometimes do not work.
"Such an examination is applied, the state spends considerable money on it, and consequently, the compensation of its cost is placed on the accused. Formally, a person can order alternative examinations, but in practice, the majority has neither the resources nor the desire to fight for a long time in such cases," Iryna Shramko explains.
Cases of extortion and exploitation of porn industry workers by the police are generating an increasingly significant outcry.
Yaroslav Zhelezniak attributes the counteraction against police abuse in this sector to the political influence of concerned Members of Parliament. However, without changing the system itself, that is, without decriminalization, any person using their body even for private erotic purposes finds themselves at risk of extortion and criminal prosecution:
"Right now, all these individuals in uniform know that if, God forbid, we, concerned politicians, find out they are engaging in this, they will, for a start, face political responsibility. Following the intervention of the Ministry of Internal Affairs leadership, they have scaled back their operations in this regard, but obviously, this could continue. As long as we are here, we are politically applying the brakes to this process. But this is just a handbrake; it must simply be decriminalized. Because as soon as they get the opportunity to use this again, they will."
UNCOLLECTED TAXES: HUNDREDS OF MILLIONS
Still, speaking purely about the economic impact on the state, how much weight can taxes from this sector add to the state budget?
According to the Chairman of the relevant committee, Danylo Hetmantsev, in 2024, out of nearly 5,000 OnlyFans users, only 150 individuals paid taxes. How many of them subsequently received a notice of suspicion remains an unanswered question.
Currently, many adult content creators pay taxes in countries where their activities are decriminalized. Hetmantsev speaks of "hundreds of millions or billions" that could be in the Ukrainian budget. The BRDO think tank mentions a sum of up to 500 million per year.
"I do not question the order of magnitude itself. The only point is that such calculations are often made rather simplistically: the total volume of payouts reported by the platform is taken, and personal income tax is calculated from it," Shramko says. "But if these individuals are able to operate legally as business entities, some of them may choose the simplified taxation system and pay a 5% single tax. If they operate under the general taxation system, then it is not the entire turnover that will be taxed, but the difference between income and expenses. And there are expenses in this sector as well: for production, marketing, equipment, and promotion.
That is, if we bring this activity into the legal framework, platform users become legal business entities. Yes, in this case, the amounts might be smaller than in rough calculations based on the total turnover. However, they will be regular, clear, and predictable. And even 5% of the volumes reported by the platforms is still a substantial revenue."
ABOUT THE DANGERS: PROTECTING "CREATORS" AND STRENGTHENING LIABILITY FOR CHILD PORNOGRAPHY, PERVERSIONS, AND BLACKMAIL
Zhelezniak notes that the law cannot influence the moral aspect, but it clearly establishes the principle of freedom of action when it concerns an adult who, of their own free will, manages their own body or its image:
"Pornography usually involves two sexes, so this is not just about protecting women. There is a feminist organization that insists that porn is bad. I'm not arguing. Porn is bad. Unfortunately, we do not change this in any way, neither for the worse nor for the better, through the law. I am simply saying that if adults do this among themselves and by mutual consent, they shouldn't be sent to prison.
You are still free to publicly condemn it and call it immoral. Everything else is about upbringing and relationships. I submitted this draft law while in the maternity hospital where my little one was being born. I hope I am a good family man and a good father. But if there are children who have grown up and decided to join this industry, the last thing I would want is for some scum in uniform to take a bribe from them, or do something worse, or send them to prison. I see nothing feminist and nothing divine here."
"The updated draft law, in my opinion, is quite reasonable. It strengthens liability where it comes to truly dangerous things: the use of minors, the sale or distribution of materials to minors, and the dissemination of intimate materials without a person's consent," Shramko also believes.
"All aspects that fall beyond good and evil are specifically singled out, and the liability for them is strengthened. Only the mention of adults is removed from this article. That is, when grown, of-age individuals voluntarily prepare content for display with the aim of receiving money for it, or without such an aim, it will not be a criminally punishable act."
One issue that is difficult to set out in regulations is the psychological impact of such content. The romanticization of pornography, its impact on adolescents who have no real sexual experience, depressive and other psychological disorders caused by the sometimes atypical explicitness of the content, and creators becoming dependent on platforms or other market actors are dry phrases behind which stand people’s health and well-being. Ultimately, women quite often start working through OnlyFans not because their lives are going well, and there is a risk that they will become trapped in this field.
"This serves as proof of the necessity to legalize this sector, and consequently, to protect workers' rights and safeguard teenagers from such content," Iryna Shramko believes.
"I understand what is at stake here. Indeed, sometimes, especially when it comes to agencies or studios, there is a risk that human rights may be violated, and that dependency, pressure, or exploitation may arise. But that is exactly why we need to combat those who abuse such things: those who blackmail, coerce, and violate the rights of workers or contractors. This is analogous to other sectors: workers' rights violations can occur in factories and large corporations, but that does not mean we should criminalize the work itself in those fields.
But at the same time, if it so happens that an adult has voluntarily chosen this path and is not asking to be saved from it, but wants to earn a living and pay taxes this way, then it should be legalized. If I know she is doing it voluntarily and consciously, then why is she being punished when we say someone is violating her rights? Let's punish those who violate her rights.
Why are we punishing the woman? Why does she become the subject of criminal liability, rather than the person who put her in these conditions, if we claim she is in an abusive situation? And what if she is in decent conditions and wants to pay taxes, and moreover, the state insists on the payment of these taxes? Let me remind you that the law on the taxation of electronic platforms has already been passed. After all, this is an electronic platform just like OLX, eBay, or Rozetka. Yet in the case of OnlyFans, they say, You are receiving income from an electronic platform, so please pay taxes. But at the same time, they prohibit her from doing what she does."
There is another indirect problem caused by the criminalization of digital adult content: the outflow of people. Models and individuals involved in this industry, to varying degrees, are choosing to leave Ukraine and are willing to take risks crossing the border to avoid persecution here.
"It seems to me that most of the Ukrainian models I communicate with either live abroad or are planning to leave Ukraine," explains Yuliia. "Everyone I ask tells me: we are abroad; I’m in America, I’m in Canada, I’m in Poland, I’m in Spain, I’m in Germany. Girls also write to me wanting to buy a consultation because they are moving abroad soon. Many are saving up money for an illegal border crossing if they are a couple.
"They talk about protecting public morality. If they really care so much about public morality, then they should completely ban the existence of OnlyFans, PornHub... As it stands, these platforms are already paying taxes, yet the police are harassing the models who actually work there, and under this pretext, they can harass anyone."
It might seem that this is not the greatest tragedy for a nation fighting a war for its survival. But if, during such times, someone in the rear has the inspiration, time, and resources to blackmail or criminally prosecute the voluntary intimate decisions of adults, then priorities need to change. Ultimately, since the war forces many couples to live apart and maintain long-distance relationships (exchanging intimate photos, for example), literally anyone can become a target for blackmail, including military personnel.
Olha Skorokhod, Censor.NET
