Forbes Contributor on Potential Reason for PayPal Erotica Ban: Credit Card Companies

by Betsy Gomez

CBLDF has joined a coalition of free speech advocates in protest of PayPal’s new policy regarding the sale of erotica, banning the sale of material that depicts incest, pseudo-incest, rape fantasies, and bestiality (including non-human fantasy characters). Over the weekend, Suw Charman-Anderson with wrote a pair of articles about what many consider the real culprit behind PayPal’s move to ban the sale of certain types of erotica: credit card companies. The connection to the credit card companies was rumored early on, and further analysis as the story has developed has reinforced the conclusion among many observers. However, at least one credit card company has already denied involvement.

Charman-Anderson’s first post — which references CBLDF’s support of manga collector Christopher Handley and quotes CBLDF board member Neil Gaiman’s “Why Defend Freedom of Icky Speech?” — reviews analysis written by Zachary Knight at TechDirt. Knight examined the response from Smashwords, one of the publishers most heavily affected by PayPal’s policy. He writes:

This is an unfortunate set back for Smashwords as well as for indie authors. While the government in the US is not able to censor speech in this manner, there is little preventing a private company like Paypal or its credit card partners from taking these actions. Yet, Smashwords is not giving up hope. In its latest update, Smashwords notes that it had managed to get the deadline extended as well as the definitions of prohibited content relaxed. It also wants to clarify that neither it nor PayPal are the real villains in this issue.

A lot of people have been attacking Smashwords for my decision to comply with PayPal’s requirements. They’re pointing their arrows at the wrong target, and they’re not helping their cause. We’re working to effect positive long term change for the entire Smashwords community, and that includes all our erotica authors and readers.

Over the weekend, many Smashwords authors and publishers demanded we abandon PayPal and find a new payment processor. It’s not so simple, and it doesn’t solve the greater problem hanging over everyone’s head. PayPal is trying to implement the requirements of credit card companies, banks and credit unions. This is where it’s all originating. These same requirements will eventually rain down upon every other payment processor. PayPal is trying to maintain their relationships with the credit card companies and banks, just as we want to maintain our relationship with PayPal. People who argue PayPal is the evil villain and we should drop them are missing the bigger picture. Should we give up on accepting credit cards forever? The answer is no. This goes beyond PayPal. Imagine the implications if credit card companies start going after the major ebook retailers who sell erotica?

In her post, Charman-Anderson writes the following, advocating against the corporate moral arbitration she perceives is taking place:

The law already struggles to define obscenity. It’s bad enough that people can be put in jail simply for owning stuff that wavers round a fuzzy and undefinable line of icky. Obscenity is one of those things where society is pretty bad at reaching consensus on a definition because there is far too broad a swathe of reactions to that ickiness. Too many people believe that it’s OK to say “Oh, we can’t define it but we’ll know it when we see it.” It’s not, because what you see might not be what other people see.

It is even less acceptable for large financial institutions such as credit card companies to start making arbitrary decisions about what is and isn’t obscene. It’s not their job to act as moral arbiters, defining taste and effectively banning certain types of content from sale. If content is not clearly illegal, people should be able to both publish and purchase it. If content is straying into a grey area of legality then it is for the law, however flawed that law is, to challenge it.

In her second post, Charman-Anderson discusses the response from PayPal, using much of the same language as the National Coalition Against Censorship did in their rebuttal of PayPal’s statement. Charman-Anderson further discusses and quotes Visa’s response to Madeleine Morris from, in which Visa denies any role in PayPal’s erotica policy:

However blogger Madeleine Morris, writing on Banned Writers, published a response from Visa to her enquiries about the issues which disputes this view:

Dear Ms. Morris,

Thank you for your email regarding PayPal’s recent decision to limit the sale of certain erotica content. First and foremost, we want to clarify that Visa had no involvement with PayPal’s conclusion on this issue. Nor have we seen the material in question. This fact is made clear by PayPal’s recent blog post where it states that its own policies drove the decision.

Visa is referencing the [response from PayPal]. But the credit card company goes further and takes a stance that I think is not only sensible, but the one that PayPal should be taking:

In general, Visa takes no position with respect to lawful goods and services bought and sold by the people and the companies who use our payment service.

Visa respects local law, it says, which is what you would expect of any company, and goes into more detail about what that means in this situation:

[T]he sale of a limited category of extreme imagery depicting rape, bestiality and child pornography is or is very likely to be unlawful in many places and would be prohibited on the Visa system whether or not the images have formally been held to be illegal in any particular country. Visa would take no action regarding lawful material that seeks to explore erotica in a fictional or educational manner.

[…] Visa is not in the business of censoring cultural product. We recognize, as courts in the U.S. and elsewhere have long recognized, that this is a challenging topic. Bright lines are difficult to establish. We welcome the input of all stakeholders regarding our policies as we work to sustain a network that supports global commerce, while respecting the laws of the countries where we operate.

In closing, Charman-Anderson holds PayPal primarily responsible for the policy and praises Visa’s response, indicating that PayPal should have taken a similar stance about content:

It is a shame that PayPal hasn’t dealt with the issue the same way Visa has, by not taking a stance on content other than on the point of legality. Writing about bestiality or incest is not, in itself, illegal. Some works may cross a line into illegality, but whether they do is something that the judicial process, in full public sight, should discuss. It is not something to be dealt with by fuzzy terms of service that result in the chilling of free speech.

You can read the full text of Charman-Anderson’s posts for Forbes here and here. The TechDirt article she quotes in her first post can be found here; and Visa’s response, which was quoted in the second post, can be found here. For CBLDF’s coverage on PayPal’s policy and our subsequent protest, visit our posts here, here, here, and here.

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Betsy Gomez is the Web Editor for CBLDF.