Discrimination against adult workers has become a common theme among mainstream social media platforms. We find ourselves removed as users at an alarming rate, and while many ponder the reasoning or intent behind the account removals, others such as industry critics have questioned if it truly qualifies as discrimination.
In May 2019, the battle against Instagram became a notable fight as thousands of adult performers came forward to share their stories of removal, many without recourse or warning. A year and a half later, the battle continues. During that time, communication with Instagram remained open, but recent developments have pushed the movement of performers forward, legally challenging the removal of their accounts.
Facing the potential of creating more than 2,000 arbitration cases with Instagram, performers have organized in hopes of showing the clear inconsistency with how Instagram enforces their terms.
As over two thousand performers reported their deletions, common issues stood out among the cases. Many were removed by error, with images flagged that did not violate Instagram’s stated terms. Photos of rainbows in the sky, performer’s pets and more personal images were being flagged as abusive in an effort to weaponize Instagram’s report system. As Instagram provided a link for users to dispute their deletions, many were met with errors, resulting in the inability to complete Instagram’s report form. This further cemented performers having no effective recourse for their deleted accounts.
With the focus on deletions being based on accusations of adult content, a community of artists and free speech supporters found themselves being mocked, while mainstream celebrities were posting nudity from their verified and unfairly protected accounts. A report for pornographic material, as labeled by Instagram, on a verified account usually results in an instant notification that the post doesn’t violate their terms or community standards, regardless of what is contained in the image or video.
A recent video from Now This News included numerous celebrities such as Chris Rock, Tiffany Haddish and Amy Schumer, filming themselves claiming to be naked in an effort to bring awareness to naked ballots in this year’s election. In one segment, Sarah Silverman is covering her breasts with what is known as a hand bra, something performers know is a violation of Instagram terms. As this video currently sits on Now This News’ verified Instagram page, thousands of people shared the video to their online stories. We were disappointed, but not surprised, to have a performer report she was threatened with deletion over sharing the video to her story. A quick report of the video itself on Now This News’ own page led to a reply from Instagram stating the video did not likely violate their terms. The video was only a violation when it came from an adult performer’s page.
With numerous examples of disparity being shared daily, the most obvious came to light when mainstream celebrities began advertising their OnlyFans pages. While Bella Thorne made a record two million dollars in a matter of days on the widely used premium platform, adult performers are usually deleted from Instagram over this type of advertisement. As Bella used her Instagram page to advertise her OnlyFans venture, it underscored the potential monetary losses performers incur when they are blocked from sharing their links to fan pages; when performers are deleted while celebrities are praised and given free reign, the discrimination factors become clear.
The board of APAG, formerly known as the Adult Performers Actors Guild, and now known as the Adult Performance Artist’s Guild, recently announced it would be leading the charge, helping thousands of performers file individual arbitration claims with the social media giant in an effort to prove the widespread deletion of adult workers. As part of the terms of service agreement users sign when establishing their accounts on Instagram, users must agree to arbitration.
In most terms of service agreements, the details regarding disputes and how to bring them forward are hidden in the last few paragraphs of the terms sheet. Soon after APAG announced it was moving forward with helping performers open arbitration cases, it was noted that the following statement had been listed in the third paragraph of Instagram’s terms:
“ARBITRATION NOTICE: YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. WE EXPLAIN SOME EXCEPTIONS AND HOW YOU CAN OPT OUT OF ARBITRATION BELOW.”
Given that Facebook owns Instagram and this disclaimer is so prevalently listed, one might imagine it's a business-wide standard also enforced on Facebook. However, a quick check of the Facebook terms showed a staggeringly different approach to dispute resolution. Listed under “Additional Provisions” as the fourth section, Facebook takes a friendlier approach, stating their “intention to provide clear rules so they can limit or hopefully avoid disputes.”
Instead of forced arbitration, Facebook requires disputes be resolved exclusively in the U.S. District Court for the Northern District of California, or a state court located in San Mateo County. As their terms allow for cases to be brought in court, this isn’t mentioned in their terms until paragraph 58, as opposed to the beginning like Instagram's terms. As you read through the heavily detailed arbitration specifications, it is seemingly clear Instagram wishes to retain control over their dispute process.
Moving forward with arbitration cases will be one of the few occasions in the adult industry where performers attempt to defend their rights against a massive mainstream platform. APAG’s lawyer, James Felton of GB LAW LLP, has already filed the first of many arbitration cases with adult performer Courtney Taylor as the claimant. After having numerous pages removed from the service, Courtney helped APAG establish their arbitration claim by serving as the first performer to engage in legal correspondence regarding her account removal.
After several meetings with Instagram lawyers, and the inability to come to an agreement, the decision to move forward legally became the chosen path. After establishing the first arbitration case, APAG is working to file cases for each performer that has been removed from the service. Facing the potential of creating more than 2,000 arbitration cases with Instagram, performers have organized in hopes of showing the clear inconsistency with how Instagram enforces their terms. APAG is continuing to accept claimants for those who believe they were wrongfully removed from Instagram. For more information, visit APAGUnion.com.
