With the rise of OnlyFans as a social media platform in Australia, employers may need to consider reviewing and amending their social media policies, to include disclosures made on employment about social media content.

Commissioner Riordan stated recently in a case, "I have never heard of the OnlyFans website before this case. I took … advice and looked at Wikipedia."

OnlyFans is a subscription based social media platform that allows content creators to share exclusive content with their paying subscribers. Though the platform is not exclusively a pornography website, OnlyFans gained popularity for its adult-oriented content. Creators charge a monthly fee to access their content, and those in the top 0.01% of reportedly earn millions of dollars per year.

Where such content might be produced by staff, and accessed by other staff, contractors or clients, the risk of harassment and bullying may become a workplace issue, a question of professional conduct or a reputational matter. 

What do the laws say about having such content and what should employers do to manage situations where private content becomes a workplace matter?

Earlier this year, the Commission decided the case of Mr Adam Thompson v Ventia Australia Pty Ltd T/A Ventia [2023] FWC 904 (Thompson).

Despite not being a pornography website, the case of Thompson does confirm that the content on OnlyFans can be considered pornography. 

A brief synopsis of the matter is as follows:

• The Fair Work Commission dismissed a firefighter's claim of unfair dismissal for engaging in inappropriate behaviour on private Facebook groups.

• The employee argued his dismissal was unjust because he wasn't informed about the policy breaches and lacked proper training.

• The employer defended the dismissal, citing violations of the employment contract, bullying, harassment policy, code of conduct, and social media standards.

• The employee's conduct included being part of a Facebook group with current/former employees, posting inappropriate work-related content, and sharing explicit photos of women he obtained from OnlyFans, while on duty.

• The Commissioner ruled conduct outside work hours wasn't a valid reason for termination.

• However, distributing pornography during work hours was considered misconduct under Fair Work Regulations.

• The employer's online training approach was criticised for lacking educational rigor.

• The Commissioner stated employers can expect common decency from employees without specific training.

• The sending of pornography during work hours was deemed unacceptable without needing formal training to know better.

While the case is not directly relevant to the issue of whether staff can be disciplined for producing OnlyFans content, it does provide some guidance around how OnlyFans might be considered by the Courts and Commissions. Having an OnlyFans account may create specific risk in regulated professions and roles, such as being a doctor, lawyer, teacher, social worker, psychologist, accountant etc...Creating explicit content on OnlyFans, even if the content was created out of hours, in a private capacity and is unrelated to their work, may still amount to a breach of your employment contract and/or your industries' ethical guidelines.

In New South Wales, nurses and midwives have been warned against posting OnlyFans by the industry’s professional complaints body. This announcement was met with controversy, as some nurses believed that restricting their right to post on OnlyFans was "slut shaming". Other media outlets have referred to the announcement as placing an unnecessary financial burden on, already underpaid, nurses. 

One of the arguments raised in the media was that nurses should be able to do what they want in their spare time. However, the Commission considered the case of Rose v Telstra, in Thompson, where it was held that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited:

• the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or

• the conduct damages the employer's interests; or

• the conduct is incompatible with the employee's duty as an employee.

The question is then, would having an OnlyFans account reach the threshold of any of the above?

Further guidance may be provided by cases where social media posts have been found to support a valid reason for termination.

Information will have been made “publicly available” if it was made available to at least one member of the public who, in that capacity, was free, in law and equity, to make use of it. It is immaterial whether the invention has become known to many people or a few people. 

A paywall does not restrict information from being publicly available, as newspapers and articles may have a paywall despite their main purpose being informing the public about current affairs.

The case of O’Keefe v William Muirs held that the Applicant had made a post publicly when other employees were able to see what was written. 

Despite this, the High Court has found that anonymous publications can amount to a breach of the employer's Code of Conduct and justify termination.

It may be argued that posting on OnlyFans could constitute social media posts, because it is accessible to the public, even in circumstances where you are under a username which does not identify you and it is only available on subscription. 

If a fellow staff member, contractor or client  discovers an OnlyFans account and accesses it, it may amount to serious misconduct if it breaches their professional or ethical obligations, causes a safety risk or a risk to reputation and viability. 

Serious misconduct involves an employee deliberately behaving in a way that is inconsistent with continuing their employment. Examples include: causing serious and imminent risk to the health and safety of another person or to the reputation or profits of their employer’s business or refusing to carry out a lawful and reasonable instruction that is part of the job.

For regulated professions, such as those mentioned above, having an OnlyFans and posting explicit content may be inconsistent with professional obligations and ongoing employment if the conduct demonstrates:

• failure to exercise good judgement (as they should understand the risks, as well as their contractual and ethical obligations);

• in certain circumstances, failing to disclose information relevant to the policies or contract obligations;

• failing to ensure professional boundaries designed to ensure the safety (both physical and online); and 

• showing a disregard for the employer's reputation.  

As briefly mentioned above, regulated professions will likely have professional obligations. For example, lawyers are to act in accordance with the Australian Solicitors Conduct Rules and accountants are to act in accordance with APES Standards.

Many of these professions will also have ethical obligations where the professional is to maintain a high standard of ethical behaviour at all times. 

The use of an OnlyFans account outside of work hours might amount to a conflict of duties, with the professional failing to adhere to ethical and professional standards.

A fiduciary relationship exists whenever there is a relationship of confidence such that equity imposes duties or disabilities upon the person in whom the confidence is reposed in order to prevent the possible abuse of confidence.

An employee  must act in the best interest of their employer, which becomes active upon the execution of an employment contract. However, for contractual relationships, the imposition of fiduciary duties can be problematic. The mere existence of an employee/employer relationship does not give rise to a fiduciary duty. 

Despite this rule, one constraint placed on all employees is the "double employment rule". There is a breach of this rule and an employee's obligations when their duty to one employer may conflict with their duty to another. 

The exception to this rule is providing some form of consent. It does not need to be "fully informed". Mere disclosure of the secondary employment may be enough to avoid a breach of the double employment rule.

Where employees are often discrete about the existence of their OnlyFans account, it may be that they are breaching their fiduciary duties to their employer by failing to disclose its existence, or being dishonest when queried about it.

A similar stance was adopted in Jacob v West Australian Newspapers, where Mr Jacob was terminated for failing to disclose that he had secondary employment as an Uber driver. Mr Jacob was also dishonest in the investigation process. Therefore, the Fair Work Commission held that the dismissal was not unfair. 

There are a number of risks associated with dismissing a teacher because of OnlyFans content including:

• An unfair dismissal application being made by an employee. Because the law around this area is relatively untouched, there is a risk that a court may take a different stance and find in favour of the Applicant. However, to ensure you have the best chance of successfully defending any claim, you must ensure that allegations are put to the employee and they are afforded an opportunity to respond. Ensuring procedural fairness would assist in making the dismissal not harsh, unjust or unreasonable in all the circumstances.

• The potential risk of an employee bringing a WorkCover claim. If a fellow staff member, contractor or client discovers an OnlyFans account and accesses it, there is a potential psychosocial risk. 

• The potential sexual harassment risk that could stem from a breach of WHS and anti-discrimination provisions. If staff members, contractors or clients  have located the OnlyFans account, the employer will need to act swiftly to ensure that no staff member, contractor or client acts inappropriately to the employee who owns the account.

• Potential media risk. As mentioned previously, where the law around this is highly controversial and relatively untouched, there is a risk of media coverage or publication.

The law around regulated professionals having an OnlyFans account is untested in Australia. The overseas experience indicates that producing and sharing such content may be inconsistent with the professional obligations pertaining to some regulated professions. 

To address this emerging issue, employers might consider an amendment to their social media policies, to include disclosures made on employment about social media content and ask that staff confirm that if such content exists that it is removed or protected from general access.