FILM CLASSIFICATION: by Mary-Louise FowlerNews Weekly
Porn film case dismissed by Federal Court
, December 22, 2007
AdultShop.com's sexually-explicit film Viva Erotica has suffered a setback.A million-dollar appeal by AdultShop.com against a Classification Review Board decision to classify the film Viva Erotica as X18+, was dismissed by the Federal Court on November 29, 2007.
This classification prevents the film from being sold in any state of Australia.Viva Erotica
, a montage of sexually-explicit scenes from six X18+ films from the US and Europe, was made specifically as a test case to challenge Australian censorship laws.
Currently, all Australian states forbid the sale and public exhibition of X-rated films. However, this prohibition is completely undermined by a legal loophole whereby it is not forbidden to possess such films.X-rated films
This situation has permitted a vast and lucrative trade in X-rated films out of the ACT and the Northern Territory to the rest of Australia.
To bolster its appeal against the X18+ classification given to Viva Erotica
, AdultShop.com commissioned an AC Nielsen poll, which, according to AdultShop.com's CEO, Malcolm Day, indicated that "only 30 per cent of Australians would possibly be offended by the film, so 70 per cent of Australian adults wouldn't be offended by it" (West Australian
, November 30, 2007).
Had Viva Erotica
been granted the less restrictive R rating, as AdultShop.com was demanding, the film would have been allowed to be screened in mainstream theatres and sold in regular video stores. Moreover, such a relaxation in the classification of this test-case film would have rendered the classification system meaningless, and opened the flood-gates for the porn trade.
In dismissing AdultShop.com's appeal, Federal Court Justice Peter Jacobson made it clear that the boundaries of the X-rated censorship regime could not be moved on the basis of a public survey.
The Australian Family Association (AFA) played an important part in this case, appearing amicus curiae
(a friend of the court).
AFA national research officer Mrs Angela Conway mounted a strong case for the retention of the X-rated category. She argued that the X classification, properly understood, applied to explicit depictions of actual sex, and that this test stood quite apart from additional factors such as depictions of violence, degrees of offensiveness and community attitudes.
AdultShop.com's appeal rested on its claim, and that of other pro-pornography expert witnesses, that community attitudes should be the testing criteria for the classification regime. Clearly, Justice Jacobson disagreed.
In November 2006, the AFA had appeared before the Classification Review Board to support an earlier decision of the Office of Film and Literature Classification to give the Viva Erotica
an X rating. No government, either state or federal, intervened to support the long-standing community standard that such a film should be X-rated.
The AFA argued that it was the Commonwealth Parliament's intention to apply the X classification to the type of material shown in the film. It further submitted that the X classification applied to non-violent erotica of the type depicted, and that the guidelines were based on up-to-date standards, having been prepared after extensive community consultation.
The AFA argued that the Classification Review Board was obliged to apply the "general rule" in the guidelines unless the specific context, artistic merit or other features of a film justified a departure from the general rule, and that the board had taken this approach with other films.
In its decision, the board broadly agreed, and said that "if Viva Erotica and films that contain similar sexually-explicit material were to be classified R, then the X classification would have very little work to do".
It added that as an administrative - not policy-making body - the board "should not lightly make a decision that so radically alters a regime which is endorsed by elected representatives of state and territory governments and the Australian Government".
A lot has been riding on the result of the latest appeal. Not only the pro-family movement but also, it would seem, the porn industry too has been waiting nervously for the outcome.
At the annual general meeting of AdultShop.com shareholders, held in Perth in November, chairman Mr Kim Heitman, told the meeting that the ban on the sale of X-rated DVDs in Australia was holding back the full potential of the adult content provider's stores.
"We are seeking to have non-violent erotica taken out of the X-classification and put back into R," he said. "That would have a very positive impact on the company's sales." ("Adult-shop.com feels pinch of censorship", Sydney Morning Herald
, November 27, 2007).
There is little doubt that the porn industry is more about profits than art or freedom, and that it seeks to prey on human weakness to expand its sales.
The trail of human misery and the fact that pornography fuels sexual violence matters not to this industry. Nor does the fact that it hardens the hearts of men towards women and children, and leads men from being society's protectors to its anti-social predators.- Mary-Louise Fowler is NSW president of the Australian Family Association.