Will New Law Block Many Slash, Anime, Manga Sites in Australia?
/The following guest blog post came about as a result of some e-mail correspondence with Australian researcher Mark McLelland, who described to me some significant shifts in media policy in his home country, Australia, which we both felt should be better understood not only by fans there but around the world. Certainly, the issues around this new internet filter policy have cropped up in many other parts of the world and serve as a helpful reminder that fans need to understand how local, national, and international laws may impact their fan writing practices -- especially those writing and circulating controversial or risky stories. The issues raised here are important ones, especially in the context of an increasingly globalized fan culture. Australia Set to Introduce Internet Filter that Could Block Access to Thousands of Anime, Comics, Gaming (ACG) and Slash Fan Sites
Mark McLelland, University of Wollongong
In December 2009 the Australian government announced that it would be proceeding with legislation to introduce an ISP-level internet filter aimed at blocking access to material that would be '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'.1
A report by three leading Australian media studies scholars also released in December 2009 pointed out a large number of gray areas which might lead to censorship creep and vastly increase the number of sites that could end up on the government's blacklist. These include sites debating the merits of euthanasia, sites set up by community organizations promoting safe drug use, sites for LGBT youth where some participants detail their sexual experiences and sites discussing the geo-political causes of terrorism that cite actual material published by terrorist groups.2
However, so far in the debate, no-one has taken into consideration how Australia's anti- 'child abuse publications' legislation might massively increase the scale of sites requiring blacklisting. How so? Because in both federal and state legislation in Australia 'child abuse publications' refer not just to pictures (whether real or digitally altered) of actual children, but to any 'representation of a person', fictional or otherwise, 'in a sexual context' or 'as the victim of torture, cruelty or physical abuse'. The definition of 'person' is very broad and covers depictions in a computer game, animation, comics, art work and even text.3
Different State legislatures have exhaustively detailed the nature of prohibited representations. In New South Wales (Australia's most populous state and home to Sydney), the Crimes Act 1900 SECT 91FA, states that '"material" includes any film, printed matter, electronic data or any other thing of any kind (including any computer image or other depiction)' (italics mine). The reference to 'any other thing of any clearly leaves no scope whatsoever for imagination and fantasy outside the law.
This legislation has been tested in the courts. In 2008 an appeal against a conviction on the charge of possession of child pornography (in this case digitally manipulated images of The Simpsons children, Bart and Lisa) was launched on the basis that cartoon characters could not reasonably be described as 'persons'. In his interpretation of the legislation, Justice Adams disagreed, and 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'.4
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 and slash 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.5
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. This material is already illegal to create, posses, access or share in Australia, but once the filtering legislation is enacted it will become difficult if not impossible to access these fan sites from Australia.
But surely this is the price we must pay as a society to fully protect our children? Is it not the case that allowing even fantasy representations of child sex creates a 'climate of acceptance' that encourages the acting out of the real thing? This is certainly the government line and those who have spoken out against the censorship creep endemic in the filter proposal have been criticized for failing to 'think of the children'. However, if we look at some scenarios of content that may be blacklisted this naïve media effects argument makes little sense.
Take for example, the massively popular 'Boys Love' (BL) fandom, a genre of anime, manga and illustrated novels originating in Japan in the early 1970s which imagines sexual interactions between 'beautiful boys' (in this context adolescents). In Japan, Boys Love novels are sold in high-street stores, circulated at fan conventions and shelved in public libraries. This fandom went global in the late 1990s and now has a massive fan base in China, Korea and North America - the US even hosts a Boys Love convention - Yaoi-con 'A Celebration of Male Beauty and Passion in Anime and Manga'.
There are over 52,000 Google hits for "Boys Love manga" in English alone. These stories are overwhelmingly authored by women for an audience of young women and schoolgirls - but don't imagine these to be manga versions of Harlequin romances, for as fan scholar Kazumi Nagaike points out, 'BL narratives include all kinds of sexual acts, such as hand jobs, fellatio, digital penetration of the anus and S/M'.6 If Japanese schoolgirls can handle fantasy depictions of boy-on-boy sex without turning into raging pedophiles, you'd think that Australian adults would be able to look at these depictions without going off the rails? Apparently not.
Let's take as another example, 'Wincest', that is, imagined sexual scenarios between the two Winchester brothers in the hit TV show Supernatural. 'Wincest slash' turns up 109,000 Google hits - a lot to filter out. But surely Wincest is OK because the brothers are adults? Not so, because under the existing classification system 'incest fantasies' are refused classification. Hence, although it is not currently illegal to read Wincest in Australia, since incest merits an RC category, Wincest is eligible to be placed on the blacklist to be filtered out. Again, I would be interested to see research into the Wincest fandom that could establish links between these fantasy narratives and the increase of actual incestual relations among the fandom.
But maybe these concerns are just a storm in a tea cup? After all, the proposed filter blacklist is to be compiled on a complaints-based system. The government is not proposing to recruit an army of censors to track this stuff down (and given the scale it would require an army) but has instead entrusted the Australian Media and Communication Authority (ACMA) to investigate and make referrals to the list on the basis of complaints. Surely no-one in their right mind would waste ACMA's time referring BL stories of boys bonking or Sam and Dean Winchester getting it on to ACMA?
Sadly, this is not so, as we saw just a few years ago in the 'Great LiveJournal StrikeThrough of 2007'. This saw the mass deletion of fanfic blogs containing, among other things, Harry Potter slash (because of its underage content) and Supernatural slash (because of the incest). The take down was prompted by threat of legal action against the site's administrators launched by a right-wing Christian group, Warriors for Innocence, who accused the site of harbouring material that promoted 'rape, incest and pedophilia'. The administrators suspended a large number of journals based only on key words listed in their profiles and without checking for the context. The majority were fan sites but others included support sites for sexual abuse survivors.7
Although an instantaneous and massive backlash by fans saw the administration reverse their policy and reinstate most of the deleted material, such a balanced approach could not eventuate in Australia. As outlined, the law in Australia is clear, the material discussed above would be refused classification because of its content and as such would be eligible for the blacklist. Australia has no First Amendment rights to freedom of expression. End of story. This makes Australian fans and the academics who study fandom extraordinarily vulnerable to right-wing pressure groups.
If the filter proposal becomes law, it could shut down Australian fans' engagement with broad and well-established international fandoms. The filter will also make it impossible for Australian academics to study ACG and slash fandoms, at least while they are resident in Australia. This would result in the absurd situation that academic inquiry carried out routinely in the US would become impossible in Australia. Critics of the proposal have highlighted how introducing this level of internet filtering will place Australia in a similar category to states such as Iran and Saudi Arabia. Where fan activities and fan studies are concerned, this is no hyperbole.
To take action against the Australian government's proposed filter, go to nocleanfeed.com.
1. Consultation Paper, 2009, 'Mandatory Internet Service Provider (ISP) Filtering: Measures to Increase Accountability and Transparency for Refused Classification Material', December, available online, (accessed 16 January 2010).
2. Catherine Lumby, L. Green and J. Hartley, 2009, 'Untangling the Net: The Scope of Content Caught by Mandatory Internet Filtering', online, (accessed 19 January 2010).
3. Criminal Code Act 1995 (Commonwealth) s.473.1, available online, (accessed 6 December 2009).
4. McEWEN v SIMMONS & ANOR [2008] NSWSC 1292, 2008, online, (accessed 7 December 2009), para 41.
5. Commonwealth Criminal Code Act 1995, 474.19, online: (accessed 6 December 2009).
6. Kazumi Nagaike, 2003, 'Perverse Sexualities, Perverse Desires: Representations of Female Fantasies and Yaoi Manga as Pornography Directed at Women', U.S.-Japan Women's Journal, 25, 76-103. For a description of the globalisation of the fandom see the essays in Mark McLelland, ed., 2009, Japanese Transnational Fandoms and Female Consumers, Intersections, issue 20, (accessed 7 December 2009).
7. John Casteele, 'LiveJournal StrikeThrough '07', online:
Mark McLelland is an Associate Professor in the Sociology program at the University of Wollongong, Australia. He has published extensively about Japanese popular culture and was the 2007/08 Toyota Visiting Professor of Japanese at the University of Michigan. His paper 'Australia's Proposed Internet Filtering System and its Implications for Animation, Comics and Gaming (ACG) and Slash Fan Communities' is forthcoming in issue 134 of Media International Australia, in February 2010.
