A Tech-Counsel's View of why OnlyFans Creator Titus Low was Charged with Distribution of Obscene Materials
The Titus Low debacle regarding his explicit content on OnlyFans has caused much buzz amongst Singaporean netizens. Specifically, many have questioned why it is an offence to send nudes even if there is consent between parties. Moreover, why is it an offence when only paid subscribers have access to such obscene photos? Our Executive Director, Mark Teng (profile), shares his insights on the matter.
Introduction
Should it be an offence if the distribution of explicit photographs is consensual?
The recent debacle involving content creator Titus Low (“Titus”) and the Singapore authorities has raised many eyebrows regarding what some might argue to be an archaic or peculiar law in Singapore.
Briefly, Titus was charged on 30th December 2021, presumably under Section 292(1)(a) of the Penal code for transmitting obscene materials of his private parts on a subscription platform known as “OnlyFans”. Whilst not a pornographic site per se, the platform is proverbially known to provide content creators such as Titus the space to show explicit content to his “fans” for a monthly subscription fee. Though not the only Singaporean content creator on OnlyFans providing such content, he is the first to be charged by the Singapore Courts for doing so.
Netizens were quick to point out that there was no fault as the transmission of the images were in fact consensual, vis-à-vis, payment was made to Titus in return for explicit images of himself. From what has been described by local news, a police report was made on 4th September 2021 against Titus. Accordingly, the police seized the OnlyFans account on 11th October 2021.
To that end, we asked ourselves, is a consensus the be all end all for the matter?
What Is The Law?
It is pertinent to note that laws are, in theory, a reflection of a society’s customs and morals. If citizens feel that a law is no longer relevant to modern society, through our democratic process, they can ask their Members of Parliament to propose a change in the laws.
Section 292(1)(a) of the Penal Code makes it a punishable offence to, inter alia, transmit obscene “objects” by electronic means. These “objects” include, but are not limited to, digital images. In simpler terms, whether the images were uploaded on OnlyFans, Facebook, Instagram, or Tik Tok, the law makes no distinction. More importantly, it doesn’t matter whether the transmission was consensual, the transmission would still be illegal. Technically speaking, a boyfriend sending pictures of his private parts (the obscene image) to his girlfriend would be caught by Section 292.
The Definition of “Obscene”
It is readily apparent that Titus has fallen foul of Section 292. However, it may be possible for him to raise in his defence that the images of his private parts are not “obscene”. The definition of “obscene” as per Section 42 of the Penal Code is grey, “when taken as a whole… tends to deprave and corrupt a person… having regard to all the relevant circumstances”.
Nude photography may not be considered “obscene” as per Section 42 as it is arguably not meant to “deprave and corrupt a person” but instead, be considered as something artistic that is appreciated by the eye. A similar argument may perhaps be run by Titus, but we make no view on its chances of success.
Why Titus and What Does This Mean For Other Similar Content Creators?
While an offence is clear, whether the matter goes to trial is largely dependent on two things:
whether the police have the relevant knowledge that an offence has been committed, i.e., whether a complaint has been made; and
whether the prosecution, The Attorney General’s Chambers (“AGC”) decides to exercise their prosecutorial discretion to institute, conduct or discontinue any proceedings for any offence.
At times, the amount of public resources spent on investigating and prosecuting a crime may well be over and above the amount in fines that a convicted person is made to pay. If the offence is not one that hurts society at large, the AGC may decide to exercise its prosecutorial discretion to let the accused off with a warning or decline to pursue the matter.
That being said, it is myopic to assume that the police or AGC will only react to complaints or serious crimes. The police do perform their own ex officio investigations and public interest is ultimately the main guiding principle on whether an accused person is prosecuted or not.
So why Titus? Apparently, a complaint was made specifically against him for what we believe is a clear breach of an underutilized law. The AGC certainly deemed it serious enough to exercise their prosecutorial discretion to charge him. This does not mean that other OnlyFans personalities will not be charged. What matters then is if they appear on the police’s radar and their acts are such that it would possibly taint the fabric of Singapore’s social society will the AGC pursue the matter.
Why is it a crime?
One potential explanation that we can proffer is that the law seeks to protect the person whose image is uploaded on the Internet from any future ramifications. This is because whatever is uploaded on the internet, stays on the Internet. Consent is not a silver bullet. One may consent to sending nude images at a pubescent age, not knowing full well the consequences of such consent. If intimate images, inadvertently or otherwise, find their way onto pornographic websites, there may be little even the police can do to stop such dissemination and such circulation may have an adverse impact on personal privacy or future career opportunities. That being said, such laws may be perceived by some as a curtailment of an individual’s autonomy.
Alternatively, If we can agree that websites that disseminate pornographic material of Singaporean actors is not what society wants, then it could be argued that Section 292 needs to be sufficiently broad (i.e. by not requiring the Prosecution to prove payment of fees) to be effective. This is because many pornographic websites online do not charge fees per se in exchange for the dissemination of their explicit content.
In 2018, Singaporean influencer Christabel Chua (a.k.a. @bellywellyjelly) opened up about what she calls “The Incident”. In summary, Christabel and her then-boyfriend had made some intimate private videos during the course of their committed four-year relationship. For reasons undisclosed, these private videos found their way onto pornographic websites, and for a time were widely circulated over the Internet. Christabel felt “harassed, violated or assaulted”. She hopes that The Incident would not happen to anyone else, and offers some advice to others out there through an article that was published on Harpers Bazaar. Our Executive Director had then, in the jointly written article, highlighted some legal remedies that are still relevant today for victims of such outrage of modesty.
Another possible explanation is that punishing such acts of sending obscene images regardless of consent serves to deter or militate such actions from even occurring.
From what we have gathered, many netizens seem disgruntled that in actuality, there was in fact no real “harm” to the fabric of society because the transmission of the images and videos were consensual. What netizens are essentially saying is that there should be no law against the consensual sending of nudes. So why is Titus still in the wrong?
Deterrence and protection are not mutually exclusive legal theories. By deterring such acts, the law is similarly protecting such persons from future harm that may arise if their nude images were to circulate in the future. This is especially the case in the digital age where information is readily accessible at a click of a button. When viewed in this light, having such a stringent law may perhaps be in the interest of the public.
This post does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to a practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of That.Legal LLC accepts or assumes responsibility, or has any liability, to any person in respect of this post.
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Media Features:
BBC News - Why an OnlyFans creator could go to jail for posting nudes by Yvette Tan (Link to article here)