New law could block access to anime, manga and slash fan sites in Australia

[NB: What follows is an alert for all slash / yaoi / boy's love / anime / manga / gaming fans about new legislation that could potentially make large parts of fandom illegal in Australia. Please circulate this as widely as you can to any and all Australian fans. I did not write this: the author prefers to remain anonymous. However, I am happy to answer questions or provide more information where necessary.]


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