film & video
Adult Content industry
This page considers information flows as an introduction
to some questions about censorship, free speech and secrecy.
It covers -
information flows and barriers
is an entity with access bounded by legislation, practice
and physical constraints that encompass -
(restrictions on offensive and dangerous content)
property (copyright, patent, trademark, designs and plant
variety rights law), discussed in a separate
Guide on this site
and expectations about privacy,
free speech, about
defamation and about
racial or other vilification
trade secrets and confidentiality regimes, including employment
and contract legislation
secrecy regimes and complementary
information access regimes (notably freedom
of information and archives
constraints such as infrastructure (eg the unavailability
of broadband and other
digital divides) and
the visual, motor or other constraints considered in our
of those boundaries are fluid, reflecting personal experience,
cultural histories and social priorities.
Attitudes to privacy, for example, vary depending whether
celebrity (celebrities relinquish privacy as the price
viewing that celebrity's personal activity (what are the
bounds of personal and public life?)
who expects the state to surveil potential terrorists
who realises that their consumption patterns and other
demographics have become a data profile as part of what
Gandy characterised as the panoptic sort (you are what
you wear or just the barcode on what you wear?) or
who is comfortable commoditising that data in return for
promises of improved service or a cash incentive.
Restrictions on broadcast content similarly vary from Eire,
the UK (eg bans on interviews with some terrorist groups),
Sweden, Russia, China and Canada. Within Australia sale
of particular video recordings is legal in the ACT but forbidden
in Queensland other jurisdictions: geography matters.
Others boundaries are fixed.
Blindness, for example, restricts access to information
irrespective of legislation or cost. As one contact told
us, in commenting on the often claustrophobic nature of
debate about the Australian regime,
can use an online screen reader to study Australia's film
rating regulation but I'll never be able to view the films.
Casablanca, Salo or A Night At The Opera
don't come in braille. They are always going to be censored
for me, irrespective of the OFLC, the FOL or the EFA.
As the following pages suggest, censorship has had different
meanings in different eras and different jurisdictions.
A working definition is that it is a mechanism for restricting
access to content that is deemed offensive or dangerous
(whether to the state or the individual).
That restriction may take the form of an outright prohibition,
for example the specific ban in most nations on child pornography
(although definitions vary). It may instead involve graduated
access, eg content classification schemes aimed at allowing
access by adults but restricting access by minors. It may
also differentiate between access to content online and
its availability offline.
Much debate about content regulation has centred on questions
of personal autonomy and morality, with changing expectations
about authority, about activities that are innately bad
and about what can be regulated (eg bans from the 1850s
to 1950s regarding birth control information). One point
of entry for considering such questions is Alan Hunt's Governing
Morals: A Social History of Moral Regulation (Cambridge:
Cambridge Uni Press 1999).
Censorship has never been divorced from technologies, markets
and social structures. Over the past decade it has been
fashionable to claim that online censorship is antithetical
to the spirit of the net,
on which there are - or merely should be - no restrictions
to information flows. Others have more credibly questioned
whether the shape of the global information infrastructure
permits meaningful enforcement of rules applying to particular
jurisdictions, issues explored in the governance
guide on this site.
Proponents of internet exceptionalism are now grappling
with both the emergence of new content regulation technologies
such as geolocation tools
that seek to establish borders in a borderless cyberspace
and with the effectiveness of cruder mechanisms (including
surveillance of cybercafes and
large-scale blocking of addresses) in nations such as China,
Iran and Cuba.
In considering online censorship and continuities with past
regimes (legislation, administration, advocacy, expectations)
it may be useful to look at areas of restriction.
blasphemy and lese-majeste
For much of history blasphemy (and more broadly offences
against religious dogma) was the primary focus of censorship
regimes, with exemplary punishment of blasphemers and measures
for the identification, destruction or deterrence of heterodox
The secularisation of industrial societies over the past
two hundred years - highlighted in works such as McLeod's
Secularisation in Western Europe 1848-1914 (Basingstoke:
Macmillan 2000) and Owen Chadwick's Secularisation of
the European Mind in the 19th Century (London: Cambridge
Uni Press 1975) - has been reflected in declining numbers
of number of blasphemy prosecutions. Legal restrictions
on blasphemy in Australia during the past two decades have
essentially attracted attention as a curiosity or as a question
about human rights
in a multicultural society. Numerous jurisdictions, however,
retain blasphemy statutes.
Mary Whitehouse for example used UK legislation against
blasphemous libel to prosecute Gay News in 1977
over James Kirkup's The Love That Dares to Speak Its
Name, with Justice Alan King-Hamilton disallowing defence
of that poem on any literary or theological grounds. The
defendents were convicted. In 1968 a Dutch novelist was
acquitted by the Netherlands supreme court after prosecution
under 'scornful blasphemy' legislation for portraying the
deity as a donky. The 1979 Williams Committee Report
on Obscenity & Film Censorship noted that the statute
was solely concerned with Christianity and recommended its
abolition, a suggestion supported by the Law Commission
in its 1985 report Criminal Law: Offenses against Religion
& Public Worship.
Germany's somewhat more nuanced 1969 federal legislation
deals with "the
ridicule of faiths, religious societies, and ideological
groups", with provisions that
Whoever publicly or by means of spreading written material
ridicules the content of a religious or ideological society
in a manner deemed able to disturb the public peace, is
to be punished by up to three years in prison or a fine.
2) Whoever publicly or by means of spreading written material
ridicules a domestic church, religious society or ideological
group, its facilities or customs in a manner deemed able
to disturb the public peace, is to be punished similarly.
Fines under the legislation have been imposed as recently
Joss Marsh's Word Crimes: Blasphemy, Culture & Literature
in 19th Century England (Chicago: Uni of Chicago Press
1998) is an academic study of UK blasphemy censorship, complemented
by Geoffrey Robertson's The Justice Game (London:
Chatto & Windus 1998) for the 'Gay News' case. A US
perspective is provided by Leonard Levy's Blasphemy:
Verbal Offence against the Sacred, from Moses to Salman
Rushdie (New York: Knopf 1993). The 1994 New South
Wales Law Reform Commission Blasphemy report
covers local developments.
This site features a more detailed profile on blasphemy
in Australia and overseas.
Offences against God's representative on earth were also
traditionally deemed worthy of censorship. In the UK the
Treason Felony Act 1848,
passed amid concern over the spread of republican sentiment
and the revolutions of that year, made it a serious offence
- initially punishable by transportation, now with life
imprisonment as the maximum penalty - to call for the establishment
of a republic in print or writing, by peaceful means or
otherwise. The Act remains in force, although last used
in 1883. Most jurisdictions have retained a more situational
censorship, with restrictions under various riot and public
Half a century after Margaret Mead (and two hundred years
after the equally romantic Jean-Jacques Rousseau) it is
clear that all societies have some notion of the 'obscene'
and that many, if not all, have sought to restrict the transmission
of representations or knowledge that's considered subversive
of sexual mores and power relationships.
Famously cranky UK jurist Lord Devlin argued in The
Enforcement of Morals (London: Oxford Uni Press 1959)
that the disgust of "average members of society"
provides a compelling reason to make an act illegal, even
if it causes no harm to others, because every society has
the right to preserve itself ... apparently from moral contagion.
The US Supreme Court in Miller v California more
liberally held in 1973 that
work may be subject to state regulation where that work,
taken as a whole, appeals to the prurient interest in
sex; portrays, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and,
taken as a whole, does not have serious literary, artistic,
political or scientific value.
relating to obscenity in most nations has reflected a trajectory
from perceptions that some acts were innately bad and should
be criminalised to a recognition of the varieties of erotic
experience (often an uneven recognition, given recent convictions
in Texas for consensual adult same-sex activity and belated
decriminalisation of homosexuality in Tasmania within the
past decade) and consensus about individual autonomy (eg
access to birth control information and judicial dicta about
the inappropriateness of state intervention in the affairs
of "consenting adults in the privacy of their bedroom").
As the following page of this guide suggests, there is continuing
disagreement about the nature of obscenity, its impact and
That should deter glib characterisations about the enlightened
versus reactionary or left versus right, with some of the
more avant-garde US feminist groups for example allying
themselves with Christian fundamentalists. Robin Morgan
for example issued a call to arms with the 1980 statement
that "pornography is the theory; and rape the practice"
(pornography being anything that objectifies women).
As Edward de Grazia's Girls Lean Back Everywhere: The
Law of Obscenity & the Assault on Genius (New York:
Random 1992) and David Allyn's Make Love, Not War -
The Sexual Revolution: An Unfettered History (Boston:
Little Brown 2000) note, community expectations have changed.
In 1888 a UK judge condemned Zola's
La Terre as
such a leprous character that it would be impossible for
any young man who had not learned the Divine secret of
self-control to have read it without committing some form
of outward sin within twenty-four hours after.
such as Singapore and Fiji apparently have not read - or
instead respected insights in studies such as the 1950s
Kinsey reports, with oral genital contact in the 'cleanest
state in Asia' currently illegal under legislation providing
for punishment of "whoever voluntarily has carnal intercourse
against the order of nature with any man, woman or animals"
with a fine and imprisonment of up to 10 years. Fiji and
Tonga have imprisoned visiting Australians who have privately
engaged in consensual same sex activity.
Contemporary anxieties about appropriate outlets reflect
a new focus on child pornography and a more traditional
concern about new technologies, with much polemic about
online obscenity being strongly reminiscent of past jeremiads
(something for the masses, unlike erotic texts in a learned
Four points of entry into the literature about consumption
and consequences are Berl Kutchinsky's Australian Institute
of Criminology paper Pornography, Sex Crime & Public
the 2004 NZ Department of the Interior report on Internet
Traders of Child Pornography and other Censorship Offenders
in New Zealand (PDF),
Harm & Offence in Media Content: A review of the
evidence (Bristol: Intellect 2006) by Andrea Hargrave
& Sonia Livingstone and The Porn Report (Carlton:
Melbourne University Press 2008) by Alan McKee, Kath Albury
& Catharine Lumby.
Community perceptions of individual and collective violence
have also shifted, nicely illustrated in works such as Anthony
Rotundo's American Manhood: Transformations in Masculinity
from the Revolution to the Modern Era (New York: Basic
Books 1993). The impact of the media on violent behaviour
and the efficacy of censorship is contested.
Some critics argue that 'privatisation' of moral regulation
has seen a shift from control of the erotic sphere to constraints
against the depiction and thus encouragement of violence,
with other advocates 'closing the loop' by claiming that
all pornography is a representation of violence. Others
- such as the people at Caslon - have adopted an agnostic
attitude regarding the more extreme claims and the proliferation
of academic studies indicating the violent representations
do/do not breed violence.
Much of the anxiety about violence has centred on the particular
epoch's new media: film
(associated with a succession of moral
panics in Australia, New Zealand, UK and US), television
and now the internet. Claims about television in particular
have been marked by assertions that it is peculiarly powerful
and dangerous, perhaps at odds with suggestions that viewers
can indeed turn off the idiot box if it is that disturbing
and that parental worries about viewing are rarely matched
by supervision of those in their care.
Longitudinal Relations Between Children's Exposure to TV
Violence and Their Aggressive and Violent Behavior in Young
Adulthood: 1977-1992 (PDF),
one of the more recent studies, claims that
exposure to TV violence (along with a tendency to identify
with aggressive TV characters and a belief that the violence
seen on TV accurately represents real life) better predicts
adult aggressiveness than does a child's initial aggressiveness,
intellectual ability, or parents' educational background.
But whereas exposure to violence on TV correlates with
adult physical aggression in men and women alike, it correlates
more strongly with "indirect aggression" in
women. Thus girls exposed to considerable TV violence
are more likely not only to grow up to shove, punch, beat,
or choke other people but also to try to talk their friends
into disliking someone who has angered them.
Censors have grappled indifferently with regulating information
that might be used for violent crime, financial misdeeds
or other inappropriate behaviour - in effect seeking to
anticipate intentions. That is problematical given the desirability
of information sharing about technological principles and
processes (for example basic chemical interactions), administrative
protocols and descriptions of infrastructure. A consequence
is that much online censorship regarding violence is based
on gesture politics.
The US federal Violent & Repeat Juvenile Offender
Accountability Act of 1999, for example, criminalises
the teaching or distribution of information on "how
to make a bomb or other weapon
of mass destruction" if the distributor intends use
of the information to commit a federal violent crime or
knows that the recipient intends to use it to commit such
a crime. The penalty is a fine of US$250,000 and/or a maximum
of 20 years imprisonment.
Critics have responded that use of the law to expunge pyrotechnics
information from the web is inconsistent with the Federal
Government's print publication (in for example the Forestry
Service's Blaster's Handbook) of details about
explosive manufacture and deployment and the 1997 report
on The Availability of Bombmaking Information by
the Department of Justice's cybercrime unit.
symbols, sedition and science
In discussing censorship of the visual
arts later in this guide we've noted the power of symbols
and the attractiveness - if not imperative - to destroy
or restrict representations. That's evident in Byzantine
or early Reformation iconoclasm, in the 'rectification of
history' via airbrush of losers in Stalinist and Maoist
political struggles, and the more recent destruction by
the Khmer Rouge and Taliban of Buddhist sculptures.
In the West much censorship traditionally centred on sedition:
incitements to overthrow established order or merely to
disrespect those at the top end of the social/economic pyramid.
Ithiel de Sola Pool spoke of 'technologies of freedom';
for those on one side of the regulatory divide all media
were instead technologies of subversion - inciting discontent,
asking and answering questions, offering access to tools
such as bombs (or, as explosively, birth control) and to
examples of how those tools might be used.
In discussing the history
of censorship in Australia and New Zealand we've accordingly
noted the suppression of writings by radical groups and
individuals, bans on films and broadcasts thought to threaten
the nation's moral fibre, and censorship of symbols of dissent
such as a Renoir nude from a Melbourne shopfront in 1944.
That is consistent with experience overseas, where for example
Nelson Rockelefeller immortalised Diego Rivera through removal
of a portrait of Lenin from the Rockefeller Centre mural.
In any market economy much sedition is self-regulated: subversives
are free to mount the soapbox but will not disturb the advertisers
by being given airtime on the idiotbox, leaving dissent
safely quarantined in academia, low-rating public broadcasts
or street corners.
Self-censorship is also apparent in some commercial publishing,
most insidiously in curriculum development and publishing.
We were struck by a recent account of US experience -
you going to tell kids that Thomas Jefferson didn't believe
in Jesus?" a textbook editor asked a history teacher.
"Not me! If there's something that's controversial,
it's better to take it out."
one critic to speak of the bland leading the blind.
In practice that intolerance is not confined to the agents
of capital. Censorship by shouting-down is a feature of
many digital policy online fora
and exponents of cyberliberties in Australia have often
been strongly dismissive of alternative views in groups
such as the auDA DNS list and LINK list.
One of the shibboleths of enlightened public discourse over
the past hundred years is that restrictions on a free flow
of information are antithetical to scientific development
and consequential social goods. That is reflected in finite
rather than perpetual intellectual property duration,
protection for expression rather
than idea, and fair dealing/use provisions.
Legislation, such as the US Digital Millennium Copyright
Act, that forbids exchange of information about anti-circumvention,
encryption and other technologies thus engenders considerable
passion. For some people figures such as Edward Felten have
been seen as counterparts of Clarence Darrow in the Scopes
Monkey Trial in US or other emblematic instances of an ongoing
battle between barbarism and virtue.
In the aftermath of 11 September - something that's akin
to the Haymarket bombing of the 1880s rather than a fundamental
clash of civilisations - there has been renewed attention
to government publication of information, particularly the
withdrawal of online and offline content and proposals to
strengthen regimes concerning the duties of civil servants
and official secrets. Censorship is one aspect of the 'war
against terror', as it has been of most preceding wars.
One aspect of that censorship is action by government agencies.
Another is self-regulation by media groups and journalists,
for whom truth - to adapt Philip Knightley's words - is
necessarily the first casualty.
Given the significance of information in many cultures since
the 1650s the notion of a radically new 'information
economy' may be misplaced. However, there is an acceptance
among many businesses - and more analysts (sadly, often
the most complicit victims of the latest zeitgeist) - that
information is a critical asset, if not an enterprise's
That is reflected in the range of restrictions on information
flows identified above, in particular those relating to
ownership of knowledge, notably trade secrets, employment
and intellectual property law
within the 'attention economy', encompassing mechanisms
for the protection of corporate brands and personal reputations
through for example trademark law and defamation law
considering information flows there is an inevitable tension
between proprietary rights in information versus notions
of transparency, free speech and achievement of public goods
the shape of regulation
In the governance
guide we highlight the debate about whether the net should
be regulated. From our perspective much of that debate is
misplaced. Regulation of both the infrastructure and the
applications on that infrastructure is a fact. It will become
more so, at the national and global levels.
The following pages highlight several aspects of regulation
is contested and some of the more vociferous advocacy
groups have been distinguished by zeal rather than a sizeable
policymaking regarding the regulation of content on 'new
media' has been reactive and ad hoc, with a shallow understanding
of technologies and problematical grounding in research
mechanisms acquire a life of their own, and 'temporary'
solutions (eg those established after what some commentators
characterise as a moral panic) often become embedded in
public policy that fails to evolve with community expectations
mechanisms, particularly those that co-opt major commercial
interests, are often more effective than might appear
from triumphalist accounts of a long march to liberty
In considering Australian regulation of online content a
fundamental question is whether the regulatory schemes (at
the international, national and regional level) are effective?
Does the enforcement machinery work? Are the rules - legislation,
industry codes, community norms - coherent? Are intermediaries
such as schools, public libraries and schools bearing an
undue regulatory burden because they're more susceptible
to state sanctions than an online porn vendor?
The answers to those questions will remain in dispute for
Amendment of Australia's rather clumsy online legislation
is desirable. It is also likely that the technological quick
fixes strongly promoted by particular governments and advocacy
bodies, notably online filtering software, are ineffective.
They may well be superseded as community perceptions change.
we've suggested in discussing privacy, community attitudes
and community behaviour regarding censorship, censorship
and free speech varies considerably depending on particular
circumstances and who is asking questions.
That is one reason for caution in assessing claims by advocacy
groups and governments that individuals -
stronger/weaker government regulation of content, whether
offline or online
committed to free speech in both principle and practice
the operation of existing regulatory regimes and the consequences
of particular policy decisions
Australians, for example, appear to believe that the Commonwealth
US constitutional and judicial protection for free speech,
although in fact it provides implied and limited protection
for communication of a political nature.
Polling in the EU, North America and Australia suggests
that consumers want greater regulation of broadcast content,
want less or are comfortable with existing regimes. The
vehemence with which some people have demanded ISP or other
filtering of online content to protect minors seems at odds
with the apparent casualness with which many guardians supervise
online access by children. Consumption of adult video and
online erotica is not
restricted to a few isolated demographics.
In essence, one conclusion that can be drawn from watching
how people behave away from the pollster or voting booth
is that they conceptualise censorship as something that
does (and indeed should) happen to someone else.
(erotica, online and offline)