Australia’s ‘child-abuse material’ legislation, internet regulation and the juridification of the imagination

Abstract

This article investigates the implications of Australia's prohibition of 'child-abuse material' (including cartoons, animation, drawings and text) for Australian fan communities of animation, comics and gaming (ACG) and slash fiction. It is argued that current legislation is out of synch with the new communicative environment brought about by the internet since a large portion of the fans producing and trading in these images are themselves minors and young people. Habermas's analysis of the conflict between instrumental and communicative rationality is deployed to demonstrate that legislators have misrecognized the nature of the communicative practices that take place within the 'lifeworlds' of fan communities, resulting in an unjust 'juridification' of their creative works. Drawing on Japanese research into the female fandom surrounding 'boys' love' (BL) manga, it is argued that current Australian legislation not only forecloses the fantasy lives of young Australian fans but also harms them by aligning them with paedophile networks. Finally, drawing upon Jean Cohen's paradigm of 'reflexive law' the article considers a possible way forward that opens up channels of communication between regulators, fans, domain host administrators and media studies professionals that would encourage a more nuanced approach to legislation as well as a greater awareness of the need for self-regulation among fan communities.

Young people, online fandom and the perils of child pornography legislation in Australia

“…These manipulated images can be put to various uses including the trolling and harassment of other internet users by tricking them into viewing pictures with offensive violent, racist or sexist content (Jones 2010: 128-29). However, consonant with my previous work on fandoms (McLelland 2012;2017a;2017b) in this paper I am concerned with their circulation among fans, particularly largely female "slash" fandoms that involve content taken from both Japanese and western pop cultures. Many manips are playful and imaginative re-creations that superimpose images of the manipulator her-or him-self into a scene from a TV series, anime or movie, or with celebrities.…”

“…Although widespread, the practice has so far largely been overlooked by legal and cultural studies commentary on child pornography law. Yet, due to changes in the scope of this legislation across Australia, North America and Europe, so that it now captures manipulated photographs of real persons as well as images of fictitious, non-existent persons, young people’s fan activities have been rendered vulnerable to prosecution by these laws, which also make the investigation of these fandoms by academics problematic and at times impossible (Galbraith, 2017; Madill, 2015; McLelland, 2012, 2017a, 2017b).…”

Boys’ Love Manga for Girls: Paedophilic, Satirical, Queer Readings and English Law

“…However, legislating against imaginary, non-realistic media such as manga must be of concern since it places overly paternalistic restriction on the expression and sharing of pure fantasy (McLelland, 2012) without evidence that such products are, in themselves, harmful and, seemingly, without adequate understanding of genre conventions (narrative and visual) which are understood by the intended audience. With specific reference to PIC, Professor Suzanne Orr has gone as far as stating that we now have 'an offence with expansive, ill-defined descriptors which may well violate human rights and that could lead to the inclusion of a wide range of material in the ambit of criminalisation ' (2010, p. 254).…”

‘Not in front of the parents!’ Young people, sexual literacies and intimate citizenship in the internet age

“…They note how ‘ludic sex-based relationships … are free of commitment, reproduction, and other closely connected projects of the self.’ Ludic sex is often ‘ludic(rous)’ and unlike offline sexual relations which emphasize ‘civilization, order and stability’, the emphasis in virtual sex is on ‘incivility, disorder and transgression’ – such as the often violent and ‘non-con’ (non-consensual) scenarios imagined by the fans. What the law frames as ‘child-abuse publications’ are, in the context of the communities in which they are generated and exchanged, understood to be a ‘ludic’ form of self-expression and play and hence the capture of this material can be seen as an unwarranted ‘juridification of the imagination’ (McLelland, 2011: 467–483).…”