Can you be fired for having an OnlyFans?

Last week, the Sydney Morning Herald reported that the NSW industry complaints body for nurses and midwives has warned workers against uploading explicit content to the platform OnlyFans.

OnlyFans is a subscription based online content provider, where performers upload images and video that users can access for a fee. Whilst not inherently a pornography website, the most popular content creators on the platform are known to upload sexually explicit content.

What does the law say about having a sexually adventurous side gig in NSW?

Laws regarding sex work in NSW

Sex work has been largely decriminalised in NSW since 1995, but a number of important limitations still remain.

Sex work is defined under s3 of the Summary Offences Act 1988 (NSW) as “acts of prostitution between persons of different sexes or the same sex and includes (a) sexual intercourse … and (b) masturbation committed by one person on another, for payment”.

Anyone over 18 may legally provide sexual services to a person over the age of consent in exchange for money, goods or favours.

Brothels are regulated by local councils, and as long as someone works within an approved premises there are no laws stopping them from doing so.

However, it’s important to note that a sex worker offering services “in call” in their own home will be considered a “brothel” and must ensure compliance with local planning laws.

Street-based sex work is also allowed, although a sex worker cannot solicit work near a dwelling, school, church or hospital. 

The legality of porn in Australia

 Generally, there is no law against the creation of sexually explicit media depicting consenting adults in NSW. However, Federal and State laws regulate where such media can be sold, exhibited and uploaded.

Sexually explicit films that would receive an X18+ rating under the National Classification Scheme can only be physically sold and exhibited in the ACT and the Northern Territory.

Selling or publicly exhibiting a sexually explicit film in NSW carries the risk of a maximum fine of 100 penalty units ($27,500) or 12-months imprisonment for an individual, or 250 penalty units ($68,750) for a corporation.

Whether it is legal to upload sexually explicit content online depends on the nature of the content and how accessible it is to minors.

The Online Safety Act 2021 (Cth) regulates online content in Australia. The Act empowers a regulator called the eSafety Commissioner to take down online content deemed harmful or unsafe for Australians.

Sexually explicit media that would be classified as X18+ is legally able to be uploaded to the internet under the Act as long as the website uses a “restricted access system” which prevents access by minors.

What constitutes a valid “restricted access system” is still being worked out as part of a negotiation between the government and large tech companies. At this stage it appears OnlyFans is currently compliant and legal to use in Australia.

Some forms of sexually explicit content depicting consenting adults are prohibited even if they are behind a restricted access system. This includes content which would be “Refused Classification” under the National Classification Scheme, including:

• Depictions of practices such as bestiality.
• Gratuitous, exploitative or offensive depictions of fetishes.
• Incest fantasies or other fantasies which are offensive or abhorrent.

Such material is not able to be uploaded online and could be subject to a take down notice by the eSafety Commissioner even if on websites such as OnlyFans.

Can you be fired for having an OnlyFans?

An employer can set professional standards and policies for conduct outside of work, including limits on taking a second job and social media use. However, there must be a strong connection to employment to justify this restriction.

In the case of nurses and midwives in NSW, the industry complaints body argued that having an OnlyFans could impact the ability for nurses and midwives to interact with patients should they be recognised on the job.

In the ACT and Victoria, such restrictions would be much harder to justify as anti-discrimination laws specifically protect sex workers if they experience discrimination on the basis of “profession, trade or calling”.

In 2020, the NSW Greens introduced a bill which would have extended anti-discrimination protections to sex workers, but this was ultimately rejected by both major parties.

Unfortunately, despite being perfectly legal, there doesn’t seem to be much stopping employers from firing workers who upload to OnlyFans off the clock.

Image credit: Diego Thomazini

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