FSC Issues Advisory on New MasterCard Regulations

CHATSWORTH, Calif.—The Free Speech Coalition (FSC) Wednesday morning released the following advisory for industry members on MasterCard's new policies pertaining to adult content that go into effect Friday, October 15: New MasterCard regulations announced in April go into effect this week. We’ve heard from many FSC members and industry stakeholders who are confused about their responsibilities under the sometimes broadly worded regulations. Over the past several weeks, FSC has obtained clarification of the MasterCard guidelines that are to go into effect October 15. Through conversations with those familiar with the new guidance, we can hopefully clarify the aspects of the regulations causing the most confusion.  We have summarized the clarifications of the guidelines, as we understand them. However, because banks have latitude in interpreting these guidelines, ‘Merchants’ (platforms), ‘Content Providers’ (creators or account holders), and other parties should contact their banking institution for more specific requirements. Age and Consent Verification Rests with the Content ProviderThe platform must validate the age and identity of the Content Provider, and must have the Content Provider confirm that they have the consent from all individuals included in the content. However, many had assumed that a ‘Content Provider’ would also need to share documentation with the ‘Merchant’ for every person in every piece of content uploaded to the platform. That does not appear to be the case. The responsibility for verifying, maintaining, and holding that documentation rests with the Content Provider, not the platform.  The Merchant does need to have a process to “monitor and validate” that this documentation is being secured and held by the Content Provider. In other words, the platform needs to ensure creators are keeping these records, but it is not necessarily required to see this documentation by default. Consent DocumentationConsent documentation must show that the person consents to be in the content, that they consent to have it distributed online, and, if downloadable, that there is consent to download.  Content Providers should review previous model releases and documentation to ensure that all three requirements are met. Most current model releases should provide authority to meet all three requirements. Streaming Content In the case of a live broadcast, like a cam show or live fan show, a platform must be able to view the stream and stop it or block any content in real time. However, when monitoring these broadcasts, automated tools and solutions are not only permissible but recommended.  Pre-Publication ModerationAll content must be reviewed prior to publication. However, use of automated tools and solutions to moderate is encouraged.   Moderation ReportsMerchants must provide moderation reports to the bank on a monthly basis, but the specific requirements for those reports will be established by the banks. Those reports are to be made available to MasterCard upon request.  Flagging/Content FormsMasterCard has not specified what types of information is required in a notice to remove or takedown content. Merchants should talk with their banks and legal counsel about what type of information is most useful.  Content DisputesIn the case of a content dispute, a Content Provider needs to be able to provide verifiable documentation of age and consent to the platform. If they can not provide these forms, or a person appearing in the content can demonstrate that the consent is legally void, the content must be taken down immediately. If the platform disagrees that the consent is not valid, it can go to a neutral arbitrator. FSC will continue to do our best to provide guidance on these and other new regulations. As always, please consult with your legal counsel and banking partners as to your particular situation before making any decisions about your business. If you or your team have additional questions, please reach out to [email protected].