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It seems like all big social media sites and dating apps prohibit users from uploading photos containing nudity. Is there a legal motivation for that?

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As I understand them, most social media companies' policies do not actually prohibt nudity.

Twitter, for example, does not prohibit nudity, but it does prohibit "media that is pornographic or intended to cause sexual arousal." Facebook, for example, allows nudity where the user clearly intends to share it "as a form of protest, to raise awareness about a cause, or for educational or medical reasons."

Facebook explicitly says that its policy is designed to "prevent the sharing of non-consensual or underage content." Under 18 USC 2252A, it is a felony to knowingly receive or distribute child pornography. It would probably be hard to prove that Facebook knew about most pornography, but I can imagine a prosecutor arguing that it should be liable for any distribution between the time someone first flagged the content and the time Facebook deleted it.

So providing adults with pictures of nude children is a problem, but there's also a liability concern going in the other direction, as 18 USC 1470 also makes it a felony to transmit obscene material to anyone under 16 years old, which would probably include something like 5 percent of Facebook's users.

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    To clarify one thing you brought up about FB, does the ability to flag illegal content create the liability? In other words, if there's no reporting system, is it reasonable to say that FB has no knowledge of any specific content? Marking as Answered btw, thanks for the insights and links!
    – thejeremyjohn
    Sep 20, 2019 at 12:38
  • I don't think there's a clear answer to that yet. It's pretty easy to argue that flagging should create notice -- what is flagging for otherwise? If there weren't a flagging system, it would be harder to put them on notice if illegal content, but I don't think it could was their hands of liability. Given the sophisticated photo-recognition technology they use, the flags might be irrelevant.
    – bdb484
    Sep 20, 2019 at 12:48
  • @thejeremyjohn You can't construct things such that you don't have knowledge of things you would and should know and then mount the legal defense that you didn't know. Willful blindness is not a defense.
    – David Schwartz
    Sep 20, 2019 at 15:45
  • Does the law have any regard for the practical consideration that monitoring content depicting child-abuse would require significant overhead (e.g. dedicated staff) not related to the core functionality of a platform? Foxconn has a budget for suicide nets, Facebook can afford most anything, but what about a startup/non-profit? Assuming answering that question is a matter of opinion, then is there a precedent for a platform facing prosecution around something like this? Thanks.
    – thejeremyjohn
    Sep 21, 2019 at 18:26
  • In terms of civil liability, those considerations are very prominent. No such considerations need to be made in criminal law. For a somewhat related situation, you could read up on Backpage: reuters.com/article/us-usa-backpage-justice/…
    – bdb484
    Sep 23, 2019 at 1:25
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Reason #1: They are private companies and they set their own terms of service for their users, for general user comfort, ethical or business model reasons. The terms of service users agree to when using such services are legally binding contracts, and that contractual relationship can give each service the power to remove nudity (and user accounts) if their TOS forbids it. Private companies are not generally bound by the First Amendment; see Freedom of speech in the United States (Wikipedia).

Reason #2: They wish to protect themselves (and their users') from legal liabilities due to users distributing materials that fall under the legal standard of child pornography (Wikipedia) or depict other illegal activities. Most platforms are protected by Section 230 of the CDA; see Section 230 Protections | Electronic Frontier Foundation, but there are exceptions: Backpage - (Wikipedia).

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  • So the platform could be considered liable for possession/distribution of child pornography if a user uploads something like that? Thanks for your response.
    – thejeremyjohn
    Sep 20, 2019 at 2:54
  • It's possible, but generally, there would have to be evidence that the platform owners were clearly involved and knowledgeable about the existence of the materials.
    – BlueDogRanch
    Sep 20, 2019 at 3:11

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