Community, Space and Online Censorship: Regulating Pornotopia

285 Pages·2009·5.533 MB·English

by  Scott Beattie

Community, SpaCe and online CenSorShip
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Community, Space
and online Censorship
regulating pornotopia
SCott Beattie
Victoria University, Australia
First published 2009 by Ashgate Publishing
Published 2016 by Routledge
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Routledge is an imprint of the Taylor & Francis Group, an informa business
Copyright © 2009 Scott Beattie
Scott Beattie has asserted his right under the Copyright, designs and patents act, 1988, to
be identified as the author of this work.
All rights reserved. No part of this book may be reprinted or reproduced or utilised in any
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without permission in writing from the publishers.
Notice:
Product or corporate names may be trademarks or registered trademarks, and are used only
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British Library Cataloguing in Publication Data
Beattie, Scott.
Community, space and online censorship : regulating
pornotopia.
1. internet--Censorship--australia.
2. internet--Censorship--Great Britain.
3. internet--Censorship--united States. 4. internet--law
and legislation--australia. 5. internet--law and
legislation--Great Britain. 6. internet--law and
legislation--united States.
i. title
343'.09944-dc22
Library of Congress Cataloging-in-Publication Data
Beattie, Scott.
Community, space and online censorship : regulating pornotopia / by Scott Beattie.
p. cm.
includes bibliographical references and index.
ISBN 978-0-7546-7308-8 1. Obscenity (Law)--Australia. 2. Pornography--Law and
legislation--Australia. 3. internet--law and legislation--australia. 4. australia.
Broadcasting Services Amendment (Online Services) Act 1999. I. Title.
Ku4220.B43 2009
345.94'0274--dc22
2009000627
iSBn 978 0 7546 7308 8 (hbk)
ISBN 978 1 3155 7300 7 (ebk)
Contents
1 Introduction: Classification Refused 1
2 ‘protect me from what i want’: Censorship and internet
Classification
7
3 Co-regulation and Symbolic policy: the Broadcasting Services
Amendment (Online Services) Act 1999 47
4 ‘Taking the Red Pill’: Cyberspace, Jurispace and the architecture
of regulation 89
5 Sexx laws: the Spatial Strategies of Censorship 137
6 Censorship, power and regulatory Communities 191
Bibliography 241
Index 275
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Chapter 1
Introduction: Classification Refused
in 2005, the australian government introduced what it described as a ‘new
classification system’ for films, video games and the Internet but which really
amounted to little more than a new set of label graphics for the existing censorship
categories which had been in use for many years.1 these changes were hyped by
extensive television and cinema advertising with the new slogan ‘informing your
choices’. A soundbite to which some critics cynically added ‘by making them for
you’.2 According to the director of the Office of Film and Literature Classification
(the OFLC), Australia’s censorship body, these changes dramatically broke new
ground and created a unique system of classification for Australia which ought to
be emulated around the globe.3
internationally, censorship of the internet and other new media has created
quandaries, public controversy and legal entanglements – so what is it about the
Australian censorship system that makes it unique, a candidate for being held
up as an exemplar? it is a system that has been variously described as the most
effective in the world, the most draconian in the world and as entirely ineffectual.
This book uses the Australian legal framework as a case study to illustrate some
of the complexities of new media censorship faced around the world and the roles
that theories of space and community have to play in this field.
Theoretical Framework
the Broadcasting Services Amendment (Online Services) Act 1999 may not have
significantly changed the Internet or the way in which Australians use Internet media
and access adult content. the impact of the act has been felt, rather, by regulators
themselves in that it has opened for examination some of the foundations of media
regulation. This book seeks to interrogate the Act and the legal and regulatory
culture from which it arose via three interconnected conceptual sites: through
1 The classification categories had been in existence since 1982 and warnings, such
as ‘sexual themes’, were originally derived from a government report, Report of the Joint
Select Committee on Video Material, 1988, aGpS.
2 australian games magazine Hyper has made this rejoinder several times, for
example.
3 Clark D (2003) ‘Film Classification and Harmonisation in Australia’, speech
delivered at ShowCanada, 30 april at 7.
2 Community, Space and Online Censorship
space, through power and through the concept of community. the implications
extend far beyond the australian jurisdiction.
Spatial theory challenges the abstraction of liberal legal concepts, especially
rule of law and jurisdictional maps. The work of Henri Lefebvre will be used
extensively to examine the way in which law produces space and deploys
strategies of spatial regulation. This theoretical position frames networks of power
and engages with the governance of specific sites and spaces such as media spaces
or sexual spaces. Lefebvre’s work opens the way to examine spaces as discursive
texts and to investigate the inscription of law on spaces and on bodies that occupy
those spaces.
Spatial theory allows the examination of specific concepts such as law’s
textual ‘jurispace’ and the practices of regulatory fortressing. Jurispace is a type
of regulatory space produced and occupied by law which connects with other
regulatory networks and communities, in a complex variety of intersecting planes.
Like cyberspace, jurispace provides a metaphorical parallel to physical space,
connected to physical space at nodes and interconnected by networks of power.
‘Regulatory fortressing’ refers to practices of reification of jurispace, where
the creation of more regulation becomes a regulatory object in itself. it can be
argued that many laws engage in fortressing practices, particularly expressions
of ‘symbolic legislation’ which are concerned with the integrity of their own
regulatory frameworks and the colonization of unregulated space, rather than any
empirically verifiable result.
the second conceptual site of investigation is power. power is explored in order
to challenge the simple mechanistic models of authority on which much legislative
and law reform action is premised. Foucault rejects these ‘top down’ concepts of
power and argues for a concept of power which is pervasive, circulatory and is
based on a metaphor of fluid dynamics rather than mechanics. Simple models of
positivist law based on social cause and effect cannot be sustained in the face of
developments in critical theory of power. Space is an important concern for power
when power is conceptualized as a flow and is deployed in networks.
using Foucault’s concept of power also allows the displacement of the state
and law from the centre of an imagination of regulatory power. nevertheless,
the state retains an important role as a gatekeeper and holds strong ideological
influence in many sites of power. The relationship between the state and power
becomes important when the third concept is explored.
Community is the third site of analysis. plato describes the idea of a community
of citizens as a ‘noble lie’; a deception or mere model necessary for the foundation
of social solidarity.4 Censorship legislation produces and imagines a particular
kind of community; it reifies as truth what is really an abstract social construct.
4 Plato (1974) The Republic, trans lee d, penguin: london. See also harden i and
Lewis N (1986) The Noble Lie, Hutchinson: London and McDonald A (1998) ‘The Noble
Lie: Constitutionalism, Criticised’, in Hirvonen A (ed.) Polycentricity: The Multiple Scenes
of Law, pluto press: london.
Introduction: Classification Refused 3
The abstract community is persuasive in that it seems to prefigure the regulatory
strategies which actually work to produce it. The legislative response to a
diversity of communities and community spaces is the construction of a uniform
and universal community, said to embrace all communities through practices of
pluralism. Not all communities ‘win’ in the field of pluralism, some are validated,
some are marginalized. the Broadcasting Services Amendment (Online Services)
Act 1999 and the censorship scheme it is connected to both treat community as
an essentialist concept. Taking this approach, the only apparent difficulty seems
to be determining what these community values actually are. Instead, this book
calls for the concept of community itself to be problematized and reconsidered
by the parallel explorations of concepts of space, power and multiple regulatory
communities.
regulatory practices shape content. Censorship’s concept of the community
is premised on ‘the community member as complainant’ which ignores the role
of regulatory communities and community individuals in constituting, producing
and reading media. the community imagined by censorship law is inexorably
linked to the concept of ‘complainant’ (who is part of the community) and the
interrogated media which is the subject of the complaint (constructed as outside
of the community). The practices of censorship involve the classification of the
object which is either rated and made compliant (brought within the community
space) or ‘refused classification’ and exiled to the margins.
Chapter Breakdown
This book explores the concept of Internet censorship as a site of crisis for legal
and regulatory theory, suggesting that spatial developments in theories of power
and governance may assist in making sense of the issues raised by law. Chapter 2
establishes the environment in which australian law reform occurred and
compares the Australian censorship system (online and offline) to the comparable
jurisdictions of the united Kingdom and the united States which have both had
marked influence on the development of local law. This chapter also illustrates
the major debates, moral panics and political issues which have developed around
internet content regulation.
Chapter 3 explores the australian Broadcasting Services Amendment (Online
Services) Act 1999 in detail, describing its regulatory practices as well as the
critique of the act which has arisen in the media and through policy review. the
contradictory critiques that the act is both excessively draconian and completely
ineffectual are further explored in order to sketch out the regulatory conditions
under which the act has been created and then analyzed. this case study illustrates
the problems all regulators face when attempting to control internet content in
developed industrial nations.
Chapter 4 considers some of the arguments of critical legal geography as well
the work of philosopher of space, Henri Lefebvre in order to lay the foundations