Australian Anime, Manga & Slash Fans May Run Afoul of Law
Academic, Boys' Love / Yaoi Comments (1)
As a boys’ love scholar, I’ve heard a lot of about this legislation, especially when I was down at the University of Wollongong in 2008 for a conference on Japanese fandoms with an emphasis on BL. A fellow scholar just sent me the link that follows.
I’m sympathetic to the desire to wipe out the creation and dissemination of child pornography, of course. And I understand the argument that allowing even fictionalized presentations of child porn may create a “climate of acceptance” within a culture, although as a writer I have deep reservations about extending censorship into fiction. However, the Australian law is very vaguely worded, and I fear it’s going to cause as much harm as it may cause good. For example, from an academic’s perspective, it’s clear that one of the problems of this legislation is that it will have a very strong chilling effect on Australian scholars interested in studying anime, manga, slash, and yaoi, or even other forms of sex/uality, because of the sheer possibility that clicking on a link, ordering a movie or manga, or even purchasing an academic book or reading a journal article on the subject might expose one to an image that could be interpreted as “child pornography” under Australian law. For example, the scholarly book I’m co-editing, Boys’ Love Manga: Essays on the Sexual Ambiguity and Cross-Cultural Fandom of the Genre, will contain illustrations that could potentially violate this broad and vaguely worded law … and yet it’s by no means a book about child pornography or intended in any way to support or defend child pornography.
So although I am sympathetic to the annoyance factor posed by this law to fans of these media and genres, I think that the real, indefensible threat posed by this legislation is its threat to academic inquiry.
If you’d like to present your argument against this law to the Australian government, click on the link at the end of the alert for instructions on how to proceed.
From http://docs.google.com/View?id=dfn5rwh3_156cm9tk9cv :
New law could block access to anime, manga and slash fan sites in Australia
Alert!
In 2010 the Australian Government proposes to go ahead with a mandatory ISP-level internet filtering scheme which, if passed into law, could have a massive impact on anime, manga and slash fans. Why manga and slash fans? Because the main target of the law is to prevent the circulation of ‘child abuse sexual imagery’ – BUT in Australia ‘child abuse sexual imagery’ covers even FICTIONAL representations and includes ‘under age’ characters in anime, manga and slash. If the law is passed, any fan site that contains or links to this material could be added to a government ‘blacklist’ and access denied in Australia.
The proposal
The Minister for Broadband, Communications and the Digital Economy has recently announced measures to require internet service provider (ISP) level filtering of overseas-hosted internet material classified Refused Classification (RC) under the National Classification Scheme. Such material includes child sexual abuse imagery, bestiality, sexual violence, detailed instruction in crime, violence or drug use and/or material that advocates the doing of a terrorist act (Consultation Paper, 2009).
The problem for ACG/slash fans
‘Child sexual abuse imagery’ is a primary target of the proposed filter – as it should be when dealing with pictures of actual children. Yet, in Australia ‘child sexual abuse imagery’ is an extremely broad category that extends even to purely fictional representations of ‘under-age’ characters in violent or sexual scenarios – including animation, comics, art work and text. Hence, existing legislation targets not only a small coterie of adult paedophiles dealing in representations of actual children, but extensive communities of ACG and slash fans whose activities involve the consumption, creation and dissemination of representations of young persons that would be classified in Australia as ‘virtual’ child pornography.
In Australia child pornography and abuse is legislated at both state and federal level. State legislation defines child pornography and abuse as
material that depicts or describes (or appears to depict or describe), in a manner that would in all the circumstances cause offence to reasonable persons, a person who is (or appears to be) a child:
(a) engaged in sexual activity, or (b) in a sexual context, or (c) as the victim of torture, cruelty or physical abuse (whether or not in a sexual context) (Criminal Code Act 1995 [Commonwealth] s.473.1).
The federal legislation refers not only to images or texts referring to actual ‘persons’ but also to ‘a representation of a person’ and ‘material that describes a person’ who ‘is, or is implied to be under age 18’; (however, most state legislation puts the age at 16 – leading to confusion as to what, exactly, is the legal minimum age for such representations). That cartoon representations fall within the definition of a ‘person’ in the Act was clarified by Justice Michael Adams in his ruling in the case McEWEN v SIMMONS & ANOR [2008] NSWSC 1292. The case was an appeal against an earlier conviction for possession of ‘virtual child pornography’ (in this case images of the cartoon children from The Simpsons TV show engaged in sexual interactions). In his interpretation of the legislation, Justice Adams upheld the judgement of the original magistrate, commenting:
In my view, the Magistrate was correct in determining that, in respect of both the Commonwealth and the New South Wales offences, the word ‘person’ included fictional or imaginary characters and the mere fact that the figure depicted departed from a realistic representation in some respects of a human being did not mean that such a figure was not a ‘person’ (McEWEN v SIMMONS & ANOR [2008] NSWSC 1292, para 41).
This ruling is of great importance for Australia-based ACG and slash fans, since it clarifies that in Australia child pornography legislation applies equally to ‘fictional or imaginary characters’, even in instances when such characters ‘depart[..] from a realistic representation’.
Given the ubiquity of such representations on both ACG (BL, Loli, etc.) and slash (Harry Potter, Narnia, etc.) fan sites, it is easy for fans to stumble across material that would put them at the risk of prosecution. As the Commonwealth Criminal Code Act 1995 makes clear, an individual is guilty of an offense if said individual, among other things, ‘uses a carriage service’ to access child-pornography material, cause the material to be transmitted, distribute, publish or otherwise make the material available (Commonwealth Criminal Code Act 1995, 474.19). Hence Australian fans of ACG and slash who routinely access sites that may contain or link to representations of under-age characters in sexual or violent scenarios run the risk of arrest, prosecution and entry into the sex-offenders’ list.
The effects
Accessing fan materials that transgress the above legislation is already illegal in Australia. However, if this ‘clean feed’ legislation is passed it would result in the issuing of take-down notices to affected fan sites located on Australian servers, and the establishment of an ISP-level filter that would block access to a blacklist of overseas fan sites. Given the concerns raised above, it is likely that a huge number of fan sites could be affected, seriously diminishing the ability of Australian fans to participate in these global fan communities.
What can I do?
If you are the owner of an Australian or overseas fan site that may be impacted by this legislation please consider making a submission to the Government consultation process outlining (1) how existing ‘child abuse publication’ legislation is overbroad and unfairly targets your community and (2) the deleterious effects that this filtering plan would have upon your community.
A Consultation paper outlining the proposed filtering scheme and detailing how to make a submission can be found here (note the deadline of 12 February 2010):
http://www.dbcde.gov.au/funding_and_programs/cybersafety_plan/transparency_measures/consultation_paper
drupagliassotti @ January 18, 2010
How many scholars study yaoi/slash who are not also consumers of it? =p This puts a heavy burden on the scholar as a possible “objective” moral entrepreneur. In Japan, non-consuming psychologists study yaoi/shotacon/lolicon…since the vastness of these texts in Japan garner national inquiry.
But in Australia, whether you’re a scholar or not, I don’t think it’s logistically possible to argue that yaoi/slash is a “special genre/community” to be protected. Yaoi/slash doesn’t have a national imaginary; instead, it must be read under the auspices of McEWEN v SIMMONS & ANOR. My feeling is that it is perhaps wiser and less painstaking to argue for the legality The Simpsons in the Australian context.
The tentative route Mark McLelland (Australian) takes in understanding the moral good of yaoi fandoms is as young people engaged in sexual self-expression, similar to “sexting” (minors who send pics of themselves to other minors over their cell phones). Sexting obviously troubles present child pornography laws in any number of countries. The problem is, that yaoi is also consumed by adults (and produced primarily by adults), so this argument quickly falls apart.
And what about shotacon/lolicon? Are any scholars willing to vouch that these genres are not “child pornography” simply because they’re fictional/simulated? Tamaki Saitō argues that “shota texts by female yaoi authors are structurally identical to yaoi texts, while shota by male otaku clearly position these little boys as young girls with penises.” In other words, in Japan there is a complex reading practice to these texts, different movements of exploitation for different audiences, and their societal effects are still under investigation. For legislators in the West, I’m sure it all looks like “child pornography,” in which the societal effects are invariably “bad.”
Oi, it’s a tough situation.