Application of Film Guidelines to Written Text |
This document is provided as Appendix 1 of EFA's submission to State and Territory Attorneys-General regarding the draft Internet censorship legislation issued for public comment in September 1999. For background, refer in particular to Section 7: Recklessness regarding criminal offence provisions proposed in draft State/Territory Internet censorship legislation.
"Eat Me" a best selling book by Linda Jaivin
Written text, including books and extracts thereof, on Australian Web pages are to be subject to censorship using guideline designed and developed for movies from 1 January 2000. Material classified R is to be subject to an adult verification system, else illegal online. Material classified X is to be the equivalent of Refused Classification, that is, illegal online.
Off-line in Australia, the book "Eat Me" by Australian author Linda Jaivin is sold in bookshops. It is not classified restricted and can be legally sold to anyone who wishes to purchase it. Readers are not required to provide a PIN number or any form of identification to prove they are adults in order to purchase the book or to borrow it from a library.
"Eat Me" was on the Australian best seller list for seven months and has sold over 100,000 copies world-wide with editions published in North America, UK and Commonwealth, Germany, France, Israel (Hebrew), Italy, Spain, Portugal, Brazil and China.
"Eat Me" is also being made into a movie. If the movie and the book are made available online, both the movie and the text of the book will be subject to censorship using the same classification criteria, that is, film guidelines. Off-line movies based on books are classified under different criteria to the book - the book may not be subject to classification at all.
Reviews of "Eat Me" include the following:
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'The opening chapters of Linda Jaivin's novel Eat Me make the famous fridge sequence of 9 1/2 Weeks look about as explicit as a public information
film.' British Vogue
'Linda Jaivin's novel will probably do for Lebanese cucumbers what Delia Smith's books did for cranberries. But Jaivin's recipes, revealing the erotic versatility of every piece of fruit and veg on the supermarket shelf, are more suitable for the bedroom than the dining room...The prose is as raw as it comes.' Observer 'Erotic escapism at its best. With a touch of humour, and a touch of class; a blend of fetishism, fun and kiwifruit.' New Woman 'Yum...even the steamiest sex scenes...soar into satire. Jaivin never loses sight of her self-declared goal, which is to wrench the writing of erotica from its male practitioners, dress it up with style and sly humor, and restore it to women.' LA Times |
Chapter 1 of "Eat Me" is also Internet Content, online at:
http://www.pobox.com/~rene/liberty/odocs/eatme_ch1.html
Sample Classification Assessment
Sex: Sexual activity may be implied.The above states that depictions may infer sexual activity/matters pertaining to sexual arousal but such matters must not be seen.
Sexual activity: Matters pertaining to sexual arousal but not limited only to portrayals of sexual intercourse.
Implied: Depictions of a subject in which the thing is inferred or indicated without actually being seen.
Depiction: Representation, portrayal on screen.
Verbal references may be more detailed than depictions, if this does not increase the impact.
While the chapter contains explicit descriptions of sexual activity, that is "matters pertaining to sexual arousal", it contains no "depictions" of same. Depiction refers to pictures on a screen, the guidelines were developed for moving pictures and sound, not written words. The activity cannot be "seen" but is explicitly described. If the Classification Board members decide explicit descriptions are equivalent to something being "seen", it appears the chapter would be classified R, at least.
With regard to "verbal references", since there are no depictions with which to compare any verbal references (film narrative), this rule is no help. However, since the written words increase the impact compared to viewing no depictions (no pictures), it can perhaps be assumed that explicit written descriptions will not be permitted.
Sex is also an adult theme. Guidelines state:
Adult Themes: The treatment of themes with a high degree of intensity should be discreet.Viewer was intended to mean people who watch movies not people who read text from books on a screen. Viewing a screen of written text has no effect on the viewer, unless they also read it. Do the guidelines cover the "effect" on a reader as distinct from on a viewer? A literal reading of the guidelines indicates not. However, presumably it can be said the written words have a strong effect on the reader, or will on many readers. It cannot be said that the chapter's description of sexual activity is "with little or no detail and generally brief".
Intensity: The strength of the effect on the viewer.
Discreet: With little or no detail and generally brief.
It seems quite unlikely Chapter 1 of "Eat Me" would be classified suitable for minors, given it contains detailed descriptions of sexual activities.
"Questions were asked about the meaning of 'simulated' and concepts such as the detail of nudity and 'obvious genital contact'. The Panel judged that interpreting the classification levels for sex was highly subjective".In the case of Dangerous Beauty, 15 of the 21 panel members gave the film a higher classification than did the Classification Board, 1 gave it a lower classification. The potential for unnecessary self censorship is clear. (It should be noted however that overall, 51% of the panels' classification decisions were not the same as Board's, 29% were lower than the Board's and 22% higher.)
In the context of written words, the guidelines relative to sex are nonsensical, completely beyond interpretation. The words look like words. Is an explicit written description "real" or "simulated"? The activity cannot be "seen" but is explicitly described. If it is to be considered "real" by the Classification Board members, the chapter would not be granted an R classification. Will the Classification Board try to guess what other people would imagine, see in their mind?
Guidelines state:
Verbal references may be more detailed than depictions.Again, since we have no depictions with which to compare any verbal references (film narrative), this rule is no help. It is not possible to have any idea whether the members of the Classification Board would consider the detailed written descriptions "real" or "simulated".
Guidelines state:
Sex: Nudity in a sexual context should not include obvious genital contact.Does "should not" mean "must not"? In any case, this is intended to refer to pictures showing genital contact. The chapter includes written descriptions of "obvious genital contact". Would this prevent the chapter being given an R classification? It is impossible to know.
Guidelines state:
Violence: Sexual violence may only be implied and should not be detailed.The words depiction and implied are referring to pictures on a screen, the guidelines were developed for moving pictures and words, not written words. Again, see above regarding the inability to know whether sexual violence is "seen" in written text.
Sexual violence: The act of sexual assault or aggression, in which the victim does not consent.
Implied: Depictions of a subject in which the thing is inferred or indicated without actually being seen.
Depiction: Representation, portrayal on screen.
The chapter arguably contains "sexual violence" under the above broad definition. Is the use of a whip in this context considered a form of "assault"? Furthermore, it could arguably be said that the female character in the chapter was sexually aggressive and the male character did not consent. This depends on what is meant by "consent". Does the expression of the words "No No" signify non consent? Does failure to seriously fight against the activity signify consent? Given debate over these issues, it is not inconceivable that the answer depends on the sex of the characters.
Guidelines state:
Adult Themes: The treatment of any themes with a very high degree of intensity should not be exploitative.What does "maltreat, especially sexually" mean? Does this include verbal abuse?
Exploitative: Appearing to purposefully debase or abuse for the enjoyment of viewers, and lacking moral, artistic or other values".
Abuse means "Maltreat or assault, especially sexually.
Irrespective of the meaning of maltreat, it could arguably be said that the female character in the chapter "debases" the male character. What is "debasing" is a matter of opinion that varies widely among Australia's population. In addition, some people consider that some types of portrayals/activities debase women, but that similar portrayals/activities do not debase men, or if they do, little concern about same seems to be expressed. It is not known whether this is taken into consideration by the member of the Classification Board in deciding what is debasing.
It is also a matter of opinion whether, if it is considered that the male character is debased, that this done for the enjoyment of the female character in the chapter or the enjoyment of "viewers", that is, readers if they are to be considered the equivalent of viewers. It could arguably also be done for the enjoyment of the male character. Overall however, there seems little doubt that, if the male is debased, that this is done for the enjoyment of readers. If the male is debased, it appears the chapter would not be given a "R" classification.
However, if relevant parts of the story would be considered to purposefully debase, i.e. be exploitative, then this is permitted under the R classification if the "film" contains "moral, artistic or other values". Moral values vary widely in Australia. Some people consider sexual activity conducted outside of wedlock (as described in the chapter) to be immoral. Whose community standards apply in the opinion of the Classification Board members from time to time?
Artistic values are intended to mean artistic aspects of a cinematographic film. While the Board is required to consider literary merit (if any) under Section 11 of the Commonwealth Act, it is unknown whether this is to be applied to "films".
Insofar as "other values" are concerned, only the members of the Classification Board know what these may be. Does it include humour and satire? Some decisions of the Classification Board/s strongly suggest not. If the book has "other values" in the opinion of the Classification Board, it seems possible it could be given an "R" classification.
This [X] classification is a special and legally restricted category which only contains sexually explicit material. That is material which contains real depictions of actual sexual intercourse and other sexual activity between consenting adults, including mild fetishes.It has been reported in the news media that if the change from X to NVE takes place, some fetishes currently permitted in the X classification will be banned.
The Glossary to the Guidelines defines fetish as
An object, an action, or a non-sexual part of the body which gives sexual gratification. Fetishes range from mild to offensive. An example of a mild fetish is rubberwear.Under such a silly definition, a cucumber or a strawberry, etc, could be said to a "fetish". So could sexual activity in the "missionary position".
With regard to knowing what is a "mild fetish", it should be noted that the 1995 Annual Report of the Classification Review Board (page 115) contains the following statement:
The Review Board noted that the X category allows depictions of 'mild non-violent fetishes'. The Board undertook some investigations into the issue of what constitutes fetishistic behaviour and, in particular, the definition of 'mild' fetish...The Board concluded that an attempt to fully define what is fetishistic, and what constitutes a 'mild fetish', may well be futile."Given the Review Board cannot define what constitutes a "mild fetish", it is not possible for content providers to know what is or isn't a "mild fetish", nor is it possible for them to know what "would be" Refused Classification for being an offensive fetish (if contained in material that would otherwise be classified R).
Guidelines state:
No depiction of sexual violence, sexualised violence or coercion, offensive fetishes, or depictions which purposefully debase or abuse for the enjoyment of viewers is permitted in this classification.
Again, it is not possible to know what "real depictions of actual sexual intercourse and other sexual activity" means in the context of written text.
In any case, whether or not the chapter could be given an "X" classification depends on whether it complies with "No depiction of sexual violence, sexualised violence or coercion, offensive fetishes, or depictions which purposefully debase or abuse for the enjoyment of viewers is permitted in this classification." Arguably the chapter contains sexual coercion, which would prevent it from receiving an X classification.
See comments above re R classification.
Since X is to be the equivalent of Refused Classification on-line whether it would be classified X is irrelevant.
Films and videos will be refused classification:With regard to sexual violence, see comments above re R classification.
...if they contain gratuitous, exploitative or offensive depictions of:
(g) sexual violence;
(h) sexual activity accompanied by fetishes or practices which are offensive or abhorrent;
With regard to festishes, see comments above re X classification.
Under the proposed draft State/Territory Internet censorship legislation content providers are damned if they make a genuine attempt to comply with the law and damned if they do not.
Content providers who make an effort to interpret the guidelines and assess the classification, but who make the wrong guess will likely find themselves in court. The defence they are offered is that they did not know, and were not aware of a substantial risk, that the matter was/would be illegal. If they claim this defence, they will then be accused of being reckless as to risk. To prove they were not reckless they need to show, at least, that they tried to interpret and comply with the guidelines. In so doing, they admit they were aware of a substantial risk that they could be wrong because the guidelines are vague, broad, subjective and the "correct" classification depends on a decision of the Classification Board, a decision which is not, under the law, required to be unanimous.
Any legislator or other person who participates in enacting the proposed law is either ignorant or a tyrant. Ignorance, for content providers, is no defence. In addition, such legislators may justifiably be accused of recklessness as to the freedom of current and future generations of average everyday well-intentioned Australians.
For example, on Wednesday, 30 April 1997, the author was a witness at a public hearing of the Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies. A portion of the transcript is provided below:
CHAIR [Senator Tierney]—Ms Graham, before you go, I have one question I want to ask you. You mentioned the difficulty of providers knowing what was a particular classification, and you were talking about the OFLC classifications. Surely the key one is if the OFLC allows it or refuses classification which is illegal.Senator Tierney did not answer the author's question. Governments are now pretending the Internet is like television or a film and that the average everyday Australians who provide Internet content are television stations with their vast legal resources, funds and staff.Ms Graham—Sure.
CHAIR—It would be the responsibility of people in your position to inform themselves of what is illegal, would it not?
Ms Graham—I do not understand how I could possibly do that, and I am aware that the movie Hustler White has previously been referred to you. There is no way I could possibly know that the OFLC would consider cutting someone was unacceptable but that burning them with a cigarette butt is fine. If the OFLC is able to make those fine-grained judgments between what makes a movie R and what makes a movie RC, that is fine for the OFLC, but there is absolutely no way I could know that.
Senator HARRADINE—As with any other publisher, they are required to know the laws.
Ms Graham—I would have to suggest to you that you will have to implement a major educational program for the adults and it will need to be the same training program that the OFLC officers go through in order to classify material.
Senator HARRADINE—I understand what you are saying but I am saying that if persons publish, whether in the print media or in the electronic media, they have to know.
Ms Graham—If they have to know: that is the question. You can’t make them liable for something that they don’t know. You firstly have to make sure that they do know.
CHAIR—They should inform themselves. If you are in any industry, you have to know what the laws are and you have to stay within the laws of your industry.
Ms Graham—I am sorry. I have just sat here and explained to you that I have read the OFLC guidelines and I am quite sure—
CHAIR—So have I.
Ms Graham—Do you believe you could accurately rate material? You will probably tell me, yes, I am sure, but I couldn’t and I suggest to you that most people couldn’t.
CHAIR—It is interesting that you raise the point because we have exactly the same problem with television stations,...
[http://www.agps.gov.au/parl/committee/s6765958.pdf]
Since that Senate Committee hearing, the author has further attempted to do as Senator Tierney suggested, that is, content providers "should inform themselves". A vast amount of further research has resulted in the author being more convinced than three years ago, that it is impossible for content providers to know how the OFLC Classification Board would classify any particular material, even if they were provided with the same training as officers of the OFLC and members of the Classification Boards.
Irene Graham
29 September 1999