Adult Film Censorship: Viva Erotica (2006)


 

 

 

 

Viva Erotica

Produced by Vivid Compilation / 2006 / USA

By 2006, Australian Adult film distributors were growing increasing frustrated with the restrictions that were being placed on the X18+ rating. It remained legal only in the ACT and NT, although residents of all States could purchase X-rated material via- mail-order from either Territory.

In reality, unclassified hardcore films could be found in many Adult stores. So while legitimate Adult distributors paid thousands of dollars in classification fees, pirated and Refused Classification material was widespread, and usually not policed.

In January 2000, Catherine Breillat's ROMANCE (1999) was banned by the OFLC. An appeal by the distributor saw the RC-rating overturned, and an R18+ (High level sex scenes) awarded. The rule that actual sexual activity could not be depicted at R18+ was no longer true, although the OFLC still did not consider this to apply to Adult hardcore material.

This was followed in September of that year by a tightening of the X18+ guidelines which removed fetishes such as bondage, golden showers etc.

In January 2001, Adultshop.com attempted and failed to get an R18+ rating for the hardcore film DREAMQUEST (2000). This was in response to films such as ROMANCE (1999) now being able to be awarded that rating. The full DREAMQUEST (2000) case is covered in our Adult Film Censorship database.

In October 2006, Adultshop.com decided to challenge the rule that Adult hardcore films could not be rated R18+. Their Managing Director had already made intentions clear in his report to shareholders contained their 2006 Annual report

Whilst the divisions of the Company develop and grow throughout the coming year, the Company is committed to campaigning for change to the current draconian censorship laws in Australia. If successful, such change would have a significant positive financial impact upon the Company.

On October 4 2006, they received an X18+ (Explicit sex) rating for a compilation DVD called VIVA EROTICA.

Date: October 2006
Rating: X18+ (Explicit sex)
Time: 98m
Format: DVD
Applicant: Adultshop.com

No information can be found about the film VIVA EROTICA, apart from the fact that it was a Vivid compilation. It may have been a DVD that Adultshop.com put together with an appeal in mind, using footage from their Vivid Studios titles.

 

 

October 12, 2006: Survey released

Australians not prudish towards explicit erotic films*: Research affirms
Adultshop.com
Media Release: 12th October 2006

KEY FINDINGS:
70% AUSTRALIAN ADULTS DO NOT FIND EXPLICIT EROTIC FILMS OFFENSIVE
76% AUSTRALIAN ADULTS BELIEVE EXPLICIT EROTIC FILMS SHOULD BE MADE AVAILABLE ON A RESTRICTED BASIS

Sydney, Australia – 12 October 2006 –

The attitudes of adult Australians towards explicit erotic films are more relaxed than is often portrayed, according to new research by ACNielsen, commissioned by AdultShop.com Limited.

A national survey of Australian adults by ACNielsen revealed that most Australian adults are not offended by explicit erotic films. The survey showed 70% of Australian adults do not find explicit erotic films offensive and 76% of Australians believe explicit erotic films should be made available on a restricted basis to people over the age of 18 years, who wish to view or purchase them.

AdultShop.com commissioned the independent market research in September 2006**, to gauge the general public’s opinion on films or videos involving various forms of actual sex.

“The results of this independent research confirm the majority of Australian adults do not personally find explicit erotic films offensive,” said Amanda Musgrave, Head of Marketing for AdultShop.com Limited.

AdultShop.com does not see these results as new information but rather as confirmation of general community attitudes that have existed for some time.”

The research also found most Australian adults believe explicit erotic films should be legally available for purchase, throughout the states of Australia, on a restricted basis to adults over the age of 18 years.

AdultShop.com believes the current method of classification of explicit erotic films in Australia is not reflective of general community standards.” concluded Ms Musgrave.

* Explicit erotic film: film or video primarily involving various forms of actual sex, including close-ups, involving consenting adults, with no coercion or violence.

** This independent survey was conducted by ACNielsen over the weekend of 1-3 September 2006 with a sample size of 1499 Australians over the age of 18 years.

For further information contact:

Carla Liuzzo , Ogilvy Public Relations, 02 8281 3286/0422 924 077

Kathryn Powditch , Ogilvy Public Relations , 02 8281 3234/0415 442 905

About AdultShop.com Limited:
AdultShop.com Limited is a public company listed on the Australian Stock Exchange. The Company is Australia’s leading e-tailer of adult products from its web site adultshop.com. In addition to this well-known web site, the Company owns and operates 28 retail stores throughout Australia and New Zealand. The Company also owns and operates the largest wholesale business of adult products in both the Australian and New Zealand markets.

 

 

October 23, 2006: Adultshop.com make their intentions clear

AdultShop.com Limited Annual Report 2006
Investor.adultshop.com, Released: 23rd October 2006

Letter to Shareholders

Dear Shareholders

During the year, the Company has continued to campaign and lobby for the sale of non-violent erotic films, currently classified X18+ by the Office of Film and Literature Classification (OFLC), from licensed adult stores within each of the Australian States.

The prohibition on the sale of such films within the States is a serious impediment to the growth of the Company.

Over the last few years, I have written numerous letters to various politicians, the OFLC, Police Ministers as well as the various State Attorney Generals seeking their support in changing the law as it relates to the sale of X-rated films, all to no avail.

Meanwhile the illegal sale of unclassified and pirated adult films continues to flourish throughout the Country. Organised crime gangs continue to pirate adult films unabated. Most of these films are unclassified by the OFLC. If they were, most would be given a ‘Refused Classification’ (RC) classification because they contain abhorrent material, such as violence. Such films are sold in many adult stores, newsagents, petrol stations, from the boots of cars and in every day retail stores throughout the east coast of Australia.

Australia is in the grip of a DVD piracy epidemic. Through the efforts of the Adult Industry Copyright Organisation (AICO – See www.aico.org.au) piracy and the sale of pirated adult films has slowed down, however, urgent Government action is needed to arrest this serious problem.

In addition to increased piracy of adult films, over the last couple of years there has been a significant increase in the illegal importation of unclassified adult DVDs into Australia. Again, were many of these DVDs to be classified by the OFLC, they would be given an RC classification due to the nature of their content. I understand that these DVDs are imported illegally in large quantities and are sold wholesale to retailers who then on-sell them to the general public.

We desperately need the Australian Customs Service to tackle the illegal importation of such large quantities of unclassified adult DVDs into Australia. Returning to the issue of the classification of non-violent erotic films, recently the Company has given detailed consideration to the nature of the classification process as it applies in Australia.

It is the Company’s view that the OFLC, through its Classification Board and the Classification Review Board, is not keeping abreast of community attitudes and standards with respect to the classification of adult films.

Under the Classification Act a number of matters must be taken into account when classifying films, including the standards of morality, decency and propriety generally accepted by reasonable adults. These requirements are reflected in the National Classification Code, which prescribes, amongst other things, that classification decisions are to give effect, as far as possible, to a number of principles, including a key principle that adults should be able to read, hear and see what they want.

The criteria prescribed by the law for the classification of a film as X, contains a test that practically applies these principles in the classification process. At the heart of this test is the requirement that for a film to be classified X, it must “contain real depictions of actual sexual activity between consenting adults … in a way that is likely to cause offence to a reasonable adult.”

The Company believes it will be able to prove through evidence that community standards are such that the portrayal of actual sexual activity in standard explicit erotic films does not offend the reasonable adult. Consequently, such films should not fall within the X-rated classification. It would be the Company’s further contention that as a result of not falling within the X-rated classification, the standard explicit erotic film must fall within the R classification, which would have the effect that such films would be available for purchase within each of the States in Australia.

The Company is about to embark upon a legal challenge to the classification laws in Australia. It is my firm belief, supported by many parties within the adult retail industry that proper administration of the existing legal regime is required to create a regulated market. This would ensure that the problems associated with piracy and illegal importation of unclassified adult DVDs are kept to a minimum. The unregulated adult film environment that has been allowed to flourish unabated for so long must be changed urgently!

I would urge you as shareholders to visit our dedicated censorship web site, censorship.adultshop.com and have your say.

Yours Faithfully
Malcolm Day
Managing Director  AdultShop.com Limited

 

 

October 27, 2006: Appeal against VIVA EROTICA'S X18+ rating

Community standards not reflected in the classification of Viva Erotica
Adultshop.com
Media Release: 27 October 2006

Leading adult retailer AdultShop.com Limited today announced that it is appealing the decision of the Office of Film and Literature Classification (OFLC) to apply the X18+ classification to the explicit erotic film, Viva Erotica. This appeal is made on the basis that the OFLC is required to apply community standards when classifying films, and in the case of Viva Erotica, it has not.

The Classification (Publications, Films and Computer Games) Act 1995 requires that for a film to be classified ‘X18+’ it must “contain real depictions of actual sexual activity… in a way that is likely to cause offence to a reasonable adult.” Current State classification laws prohibit the sale of X18+ films within the States of Australia.

In September 2006 AdultShop.com commissioned ACNielsen to conduct the first community research of Australian attitudes towards explicit erotic films. The two key findings of that research were:

• 70% of Australian adults are not offended by explicit erotic films; and,

• 76% of Australian adults believe that explicit erotic films should be available on a restricted basis to adults who wish to view or purchase it.

The OFLC’s decision to classify Viva Erotica X18+ was based upon the film containing depictions of actual sexual activity between consenting adults and did not address whether or not the content within the film was likely to cause offence to the reasonable adult.

In the appeal AdultShop.com will argue that Viva Erotica should be classified R18+ because the content of the film does not offend the reasonable adult. Films classified R18+ may contain real depictions of actual sexual activity provided it is presented in a way that is not likely to cause offence to a reasonable adult. Current State classification laws allow for the sale of R18+ films within the States.

“The September 2006 ACNielsen research was the first of its kind to determine whether or not Australian adults are offended by explicit erotic films,” said AdultShop.com Managing Director, Malcolm Day.

The ACNielsen research demonstrates that the majority of Australian adults are not offended by explicit erotic films.

“Our appeal is based on the fact the OFLC has failed to ensure that its classification decisions reflect current community standards in relation to explicit erotic films. In fact, since its inception in 1988, the OFLC has repeatedly failed to reflect community standards when classifying all explicit erotic films,” said Mr Day.

AdultShop.com has developed a web site www.censorship.adultshop.com to raise public awareness of the current censorship situation in Australia and to provide the opportunity for all Australian adults to have their say on this issue.

“I encourage everyone to visit the web site and post their opinion. The site features forums, polls and news regarding censorship and your rights,” said Mr Day.

 

 

November 3, 2006: OFLC censorship test case

Classification Challenge Now a Test Case for Censorship
Adultshop.com
Media Release 3 November 2006

Recent developments suggest that AdultShop.com Limited’s appeal to the Office of Film and Literature Classification (OFLC) seeking a review of the X18+ classification given to the explicit erotic film, “Viva Erotica” will become a test case of censorship regulation in Australia.

The OFLC has recognised the case to be of substantial public interest and has notified Commonwealth and State Governments, as well as other interest groups such as Civil Liberties Australia and the Australian Family Association, about the appeal.

“This is an unusual move by the OFLC and confirms that the OFLC recognises that the issues raised in AdultShop.com’s challenge amount to a test case,” said Malcolm Day, Managing Director of AdultShop.com Limited.

AdultShop.com is seeking a review of the OFLC’s original decision to classify Viva Erotica X18+ on the grounds that the film should have been classified R18+ because the content of the film, whilst of an adult nature, does not offend the reasonable adult.

In September 2006 AdultShop.com commissioned research, conducted by ACNielsen, into Australian attitudes towards explicit erotic films. The two key findings of that research were:

· 70% of Australian adults are not offended by explicit erotic films; and

· 76% of Australian adults believe that explicit erotic films should be available on a restricted basis to adults who wish to view or purchase it.

The ACNielsen research demonstrates that the majority of Australian adults are not offended by films containing depictions of actual sex, including close-ups, between consenting adults.

“This is a case of classification decisions with respect to explicit erotic films being out of step with current community standards,” added Mr Day.

If this application is successful, explicit erotic films will become available for purchase in all Australian States, bringing the nation into line with most other Western countries. Currently in Australia explicit erotic films are only available for purchase in Australian Territories.

“The broader issue here is one of freedom of choice for Australian adults. It is now clear the OFLC recognises AdultShop.com’s action as a test case with respect to this issue.”

AdultShop.com has developed a website www.censorship.adultshop.com to raise public awareness of the current censorship situation and to provide Australians with a forum to discuss this case.

The OFLC will hear the appeal at a hearing in Sydney later this month.

 

 

November 15, 2006; Classification Review Board announce appeal date

Review announced for the film Viva Erotica
15 November 2006
Media Release
Australian Government
Classification Review Board

The Classification Review Board has received an application to review the classification for the film, Viva Erotica.

Viva Erotica was classified X 18+ with the consumer advice, “Explicit sex”, by the Classification Board on 3 October 2006.

The Classification Review Board will meet on Wednesday November 22 to consider the application. The review was delayed until November 22 at the request of the applicant.

The Classification Review Board’s decision and reasons for its decision will appear on the OFLC website once the review has been finalised.

The Classification Review Board is an independent merits review body. Meeting in camera, it makes a fresh classification decision upon receipt of an application for review. The Classification Review Board decision takes the place of the original decision made by the Classification Board.

 

 

November 20, 2006: Media coverage of the appeal

Push to permit real sex in R films
smh.com.au, November 20, 2006

AS SEX films go, Viva Erotica is tame: 28 minutes of sex and no violence. But because the sex is real, it is classified X18+, a rating that means it is banned from sale in all states.

Adultshop.com has research that it says demonstrates that most Australian adults are not offended by films showing real but straightforward sex.

It says the X rating is applied too liberally and that films such as Viva Erotica should join the small number of explicit but non-violent art house films that are rated R, such as the cult American hit now showing in cinemas, Shortbus.

Adultshop.com has a financial interest in getting its way: its annual report described its inability to sell such films as a "serious impediment" to its growth.

But its argument is backed by the NSW Council for Civil Liberties, which, with other interest groups, has been invited to make a submission on the classification challenge.

Its president, Cameron Murphy, said the appeal raised a critical issue that would "seriously affect" the ability of adults to see what they wanted.

"It's critical that the Classification Review Board takes into account community attitudes," he said. "It's all very well for them to bring their own view of community attitudes to the table … but if there's evidence presented, they have to act on that."

"I think the material should be available," he said

 

 

November 20, 2006: NSW Council for Civil Liberties submission to Review Board

20 November 2006
Classification Review Board
22 – 33 Mary Street
Surry Hills, Sydney NSW 2010

Submission: New South Wales Council for Civil Liberties
Re: Viva Erotica – Application for Review of Classification from Adultshop.com Limited

Introduction The New South Wales Council for Civil Liberties (NSWCCL) makes this submission in circumstances where we have not been provided with any of the material listed below under the heading “procedure”.

We note that Board has required that we make a submission in these circumstances.

We therefore make the obvious point that these submissions are inherently preliminary. We request an opportunity to make further submissions following receipt of additional material.

 

Significant issues raised by this application

The NSWCCL believes that this review application provides an opportunity for the Board to address three important matters, as follows:

(a) the procedures to be adopted by the Board in classification reviews;

(b) the apparent attitude of the Board to give reduced weight to submissions from persons or bodies that have not viewed the film which is the subject of review;

(c) the standards of morality, decency and propriety generally accepted by reasonable adults, and the means by which the Board forms views as to such standards.

This submission briefly addresses these matters.

 

2 Procedure

The process of the Board should allow parties before the Board to realistically participate in the proceedings before the Board.

The Board’s procedure should involve providing each party with the following:

(a) a copy of the application to the Board;

(b) a copy of the film, publication or computer game the subject of review;

(c) a copy of the report of the Classification Board;

(d) a copy of all evidence and written submissions received by the Board, and an opportunity to respond to such evidence and submissions

(e) a copy of all legal advice received by the Board in relation to the film, publication or computer game under review, and an opportunity to respond to such legal advice; and

(f) an indication of the particular matters which the Board is likely to rely upon in making its determination, and an opportunity to make submissions in relation to those particular matters.

Further, NSWCCL submits that the Board should reform the way in which it records its decisions, in the following ways:

(a) the Board should not treat statutory material, including the Code and the Guidelines as material taken “into account” (refer to paragraph 4 of most decisions, which purport to list the evidentiary and other material taken into account). The Board should be seen to apply the relevant statutory material, the Code and the Guidelines in accordance with their terms;

(b) the Board should distinguish between evidentiary material and material in the nature of submission. In this way, matters of fact and matters involving judgment can be clearly identified and analytically addressed;

(c) the Board should summarise the evidentiary material and submissions in its reasons for decision, particularly where the Board has not agreed with a particular piece of evidence or submission. Unless the Board does so, a reader of the decision is unable to perceive the competing views as to classification.

NSWCCL believes that such procedures will enhance the integrity of decisions of the Board and make them less vulnerable to public criticism and legal review.

The NSWCCL asks that the above procedures be followed in this matter.

 

Reduced Weight

NSWCCL notes the statement in the letter from Board dated 1 November 2006 inviting a submission from NSWCCL:

“In the past, the Review Board has given less weight to submissions made by organisations where representatives of that organisation have not viewed the film or product under review.”

NSWCCL submits that such statement demonstrates an erroneous approach to classification decision-making.

Obviously, the present submission is being made without any representative of NSWCCL having viewed the film. The matters raised in this submission do not in any way depend upon a viewing of the film. There is no justification for giving reduced weight to the matters raised in this submission merely because a representative of NSWCCL has not viewed the film, or chooses subsequently not to view the film.

Further, NSWCCL makes this submission as an organisation, and not as an individual. NSWCCL does not seek to make submissions based on an individual’s subjective opinion as to the appropriate classification of the film. It is inherently impossible for an organisation such as NSWCCL to view a film. That does not make NSWCCL’s views about classification of a particular film any less worthy of consideration.

The overriding principle underlying NSWCCL’s submission is that the system of classification established under the relevant legislation is one that is principle based, and that accordingly, subjective opinions of individuals in relation to works under review are of limited relevance.

In making this submission, NSWCCL recognises that the Board’s function involves reflecting community values in classification decisions. Classification decisions can and do involve exercising judgment within the scope provided for under the legislation. The Board’s structure reflects that such judgment is not to be made by judges, politicians or public servants, but by persons who are able to responsibly reflect the views of the community.

This attribute of the Board promotes community acceptance of classification decisions. To the extent that decisions of the Board are seen to be subjective reactions to a particular work, community acceptance of classification decisions will be undermined.

 

Standards of morality, decency and propriety generally accepted by reasonable adults

NSWCCL understands that the applicant for review wishes to rely on survey evidence as to the views of Australian adults in relation to the depiction of actual sex in films classified R18+.

NSWCCL submits that the Board should take appropriate survey evidence into account in making its decision.

NSWCCL submits that to the extent that the Board relies on standards of morality, decency and propriety generally accepted by reasonable adults in coming to its decision on this matter, it should proceed on the basis that they should seek to reflect such standards as are found objectively through evidence such as survey evidence, and should not rely on their personal, subjective, opinions.

NSWCCL notes that the Board discussed community standards in its decision concerning the classification of the film 9 Songs in January 2005. The decision is of particular interest because there was a separate majority and minority view on this aspect. NSWCCL notes that neither the majority nor minority expressed their views as to community standards by reference to any objective criteria. This aspect of the decision is unsatisfying.

Ultimately, if a significant majority of adults believe that the depictions of actual sex in the film Viva Erotica do not offend their standards of morality, decency and propriety then the Board should classify the film as R18+. Appropriate consumer advice can be provided with the film to ensure that potential consumers of the film are not misled.

 

Conclusion

The Board is required to take into account the matters set out in section 11 of the Classification (Films, Literature and Computer Games) Act 1995. NSWCCL submits it should do so in a way that ultimately promotes community confidence in its processes. This involves adopting an open and transparent procedure, having regard to evidentiary material where it is available, and properly explaining its decision.

As noted above, NSWCCL may wish to make further submissions after reviewing the material referred to above.

Yours Sincerely
Stephen Blanks
Secretary, NSW Council for Civil Liberties

 

 

November 22, 2006: Appeal day

Viva Erotica Classification Challenge Today
Adultshop.com
Media Release: 22 November 2006

Today the seven members of the Classification Review Board will hear an application for review brought by adult video retailer, AdultShop.com Limited, against the X18+ classification given to the explicit erotic film, Viva Erotica.

If this review is successful it could set a precedent about the level of actual sex Australians adults will be able to see in films.

In this review the Classification Review Board will consider whether films containing actual sex should be given an R18+ classification, which will enable these films to be legally sold to adults throughout Australia.

The Classification Review Board will have to consider whether current community standards mean that reasonable adults are no longer offended by actual sex contained in films.

Prominent feminist academic and Sydney University Associate Professor, Catharine Lumby has prepared an expert report for the hearing.

“The evidence is overwhelming that, having regard to community standards of morality, decency and propriety, the majority of Australian adults are not offended by films that primarily involve various forms of actual sexual activity, including close ups, between consenting adults and in which there is no depiction of coercion or violence”. Professor Lumby’s report stated.

Lumby’s report identifies a number of recent studies in Australia and overseas which demonstrate that views towards sexually explicit material (such as that contained in X18+ rated films) have been liberalised. The report also states that a clear majority of adults approve of classification guidelines that allow the sale of explicit erotic films to adults through licensed premises and that Australia is currently out of step with comparable regimes such as the United Kingdom, the United States, Canada, Europe and New Zealand.

In September 2006 market research carried out by ACNielson demonstrated that the majority of Australian adults are not offended by films containing depictions of actual sex. The two key findings of that research were:

• Only 30% of Australian adults claimed they were offended by explicit erotic films; and,

• 76% of Australian adults believe that explicit erotic films should be available on a restricted basis to adults who wish to view or purchase them. AdultShop.com has developed a website www.censorship.adultshop.com to raise public awareness of the current censorship situation and to provide Australian’s with a forum to discuss this issue.

 

 

 

December 7, 2006: Result announced - X18+ remains

Review Board determines Viva Erotica X 18+
7 December 2006
Media Release
Australian Government
Classification Review Board

The full seven-member Classification Review Board has determined, in a unanimous decision, that the film, Viva Erotica is classified X 18+. Films classified X 18+ carry the consumer advice, “Explicit sex”.

X18+ is a special and legally restricted classification category for films that contain only sexually explicit material. X 18+ films contain real depictions of actual sexual intercourse and other sexual activity between consenting adults. Films classified X 18+ can only legally be sold or hired in the Australian Capital Territory and the Northern Territory from premises licensed to sell X 18+ DVDs and videotapes. People must be aged 18 years or older to be able to buy or hire X 18+ films from these premises.

In the Classification Review Board’s opinion, Viva Erotica warrants an X 18+, rather than an R 18+ classification, because it is a film primarily concerned with depicting real sexual activity between consenting adults for the great majority of its running time. It does not have, nor has the applicant (AdultShop.com Ltd) claimed it has, what would ordinarily be considered to be “artistic merit” or other elements that the Review Board would consider in determining if a film’s content should be classified in one category or another.

Classification Review Board Convenor, Maureen Shelley said, “The Guidelines for the Classification of Films and Computer Games were recently reviewed and reissued in May 2005. This process included a call for public submissions and the results of this review were agreed upon by State and Territory Ministers with censorship responsibilities. As such, the Guidelines represent community standards. The Classification Review Board has received no reliable evidence, by way of expert opinion or surveys submitted by Adultshop or otherwise, that there has been a shift in current community standards such that content ordinarily classified in the X 18+ category could be now acceptable in the R 18+ classification category.”

The Classification Review Board convened in response to an application from the distributor, AdultShop.com Ltd, to review the X 18+ classification of Viva Erotica made by the Classification Board on 3 October 2006. The Classification Review Board also received written and oral submissions from the NSW Council for Civil Liberties and the Australian Family Association.

In reviewing the classification, the Classification Review Board worked within the framework of the National Classification Scheme, applying the provisions of the Classification (Publications, Films and Computer Games) Act 1995, the National Classification Code and the Guidelines for the Classification of Films and Computer Games.

The Guidelines for the Classification of Films and Computer Games 2005 state that films classified X18+ cannot contain any depictions of violence, sexual violence, sexualised violence, sexually assaultive language or coercion. They may not contain certain fetishes. All depictions of characters must be consenting adults. The classification does not permit the depiction of non-adult persons, including those aged 16 or 17.

The Classification Review Board is an independent merits review body. Meeting in camera, it makes a fresh classification decision upon receipt of an application for review. This Review Board decision takes the place of the original decision made by the Classification Board.

The Review Board’s reasons for this decision will appear on the OFLC website when finalised.

 

 

December 7, 2006: Adultshop.com to appeal to Federal Court

Viva Erotica Appeal Will Go to Federal Court of Australia
Adultshop.com
Media Release: 07 December 2006

The Office of Film and Literature Classification (OFLC) Review Board today announced its decision to maintain the X18+ classification for the explicit erotic film Viva Erotica. The film was submitted for reclassification as R18+ by AdultShop.com Limited (AdultShop.com) in October this year.

AdultShop.com intends to appeal the Classification Review Board's decision in the Federal Court.

“Today’s decision is a set back for freedom of choice in Australia. By law, all classification decisions must reflect current community standards. Had the Classification Review Board applied current community standards, as it ought to have, then Viva Erotica would have received an R18+ classification AdultShop.com's Managing Director, Malcolm Day, said

AdultShop.com is extremely disappointed with the OFLC’s decision. It represents a missed opportunity on the part of the Classification Review Board to apply current community standards when classifying explicit erotic films.” Mr Day said. AdultShop.com believes today’s decision has been made despite overwhelming evidence put before the Classification Review Board that demonstrated the majority of Australian adults are not offended by films involving actual sex.

At the review hearing, AdultShop.com produced evidence that included a national survey and three reports prepared by leading academics such as Professor Catharine Lumby from the University of Sydney, to demonstrate that the majority of Australian adults are not offended by films primarily involving actual sexual activity, and, believe that such films should be available to adults on a restricted basis.

“This decision sees Australia remain out of step with comparable legal regimes such as the United Kingdom, the United States, Canada, Europe and New Zealand,” added Mr Day.

Currently X18+ films are only available for sale in the ACT and the Northern Territory. While R18+ are available to adults through out the states.

 

 

Ross Fitzgerald: We're a nation of lovers, not fighters
theaustralian.com.au, December 12, 2006

Day will now appeal this latest decision in the Federal Court, where the outcome of the case may well hinge on just who a "reasonable adult" is these days. The term is one that we have borrowed and incorporated from old English Common Law and it's quite clear what is meant by it. A "reasonable adult" would be expected to be a fair-minded person who generally understands the laws of the land and is reasonably well-informed about the issues and moral standards of the day.

The reasonable adult is the one we meet at the weekend picnic, at the footy and at the local school fete. We all know who they are and we all know that when it comes to sex and violence they are mostly offended by violence and not so offended by sex.

Federal Attorney-General Philip Ruddock didn't stay for drinks at the Office of Film and Literature's Christmas party earlier this month. But he did make an impromptu speech to the assembled throng of censorship officials and entertainment industry representatives that we all should be careful of self-interest groups hijacking the censorship agenda by claiming to be the natural representatives of community standards.

Most of those present had no doubt that he was alluding to religious fanatics and other fundamentalist hardliners.

Unfortunately not one member of the CRB was present to hear him.

 

 

January 5 2007: Full Classification Review Board report released

Classification Review Board disregards research in their decision 
censorship.adultshop.com

Friday, 5 January 2007
Censorship News 

The Classification Review Board (CRB) today handed down its reasons for the decision to uphold an X18+ rating for the film Viva Erotica.

In December 2006, AdultShop.com appealed the decision of the Office of Film and Literature Classification to classify the film X18+ rating on the basis that research highlighted that the reasonable adult was not offended by the real sex portrayed in the film, and therefore should be awarded an R18+ classification.

The CRB's reasons for their decision indicate that they disregarded the ACNielsen research results that were presented, that indicate that only 30% of Australian adults are offended by explicit erotic films, and furthermore they also disregarded research by independent experts.

'The Review Board did not consider that the expert and survey evidence provided by the Applicant lent significant support to the Applicant's arguments that reasonable adults were not offended by films containing explicit sex between consenting adults - and the film was therefore not offensive to the reasonable adult'

 

 

Complaints
Classification Review Board Annual Report 2006-2007

Prior to the review of the film, Viva Erotica, and following publicity about the application, four letters were received, urging the Review Board not to lower the film's classification from X 18+ to R 18+. The Review Board decision maintained the classification at X 18+.

 

 

Australian Government
Classification Review Board
22 November, 6 December 2006

23-33 MARY STREET SURRY HILLS, NSW

MEMBERS:
Ms Maureen Shelley (Convenor)
The Hon Trevor Griffin (Deputy Convenor)
Mr Rob Shilkin
Ms Kathryn Smith
Ms Ann Stark
Mrs Gillian Groom
Mr Anthony Hetrih

APPLICANT:
AdultShop.com Ltd, represented by:
Mr Brian Walters SC,
Mr Paul Bevilacqua counsel,
Mr Nicholas Brown, Director, Salter Power Lawyers,
and Mr Malcolm Day, Director, AdultShop.com

BUSINESS:
To review the Classification Board’s decision to classify the film Viva Erotica X18+ with the consumer advice ‘Explicit sex’.

Interested parties:
New South Wales Council for Civil Liberties (the Council), represented by Mr Stephen Blanks, Secretary.
Australian Family Association (the AFA), represented by Ms Angela Conway, State Vice President Victoria and Media Spokesperson, and Mr Damien Tudehope, Solicitor

Also present:
Ms Sonja Marsic, Counsel assisting Review Board, Australian Government Solicitors,
Secretariat support, Office of Film and Literature Classification

DECISION AND REASONS FOR DECISION

1. Decision
1.1 The Classification Review Board (the Review Board) classified the film X18+ with the consumer advice ‘Explicit sex’.

 

2. Legislative provisions
2.1 The Classification (Publications, Film and Computer Games) Act 1995 (the Act) governs the classification of films and the review of classification decisions. Section 9 of the Act provides that films are to be classified in accordance with the National Classification Code (the Code) and the classification guidelines.

2.2 Three essential principles underlie the use of the Guidelines for the Classification of Films and Computer Games 2005 (the Guidelines), determined under s 12 of the Act:
· The importance of context
· Assessing impact
· Six classifiable elements – themes, violence, sex, language, drug use and nudity.

 

3. Procedure
3.1 Having determined that it had received a valid written application for review, seven members of the Review Board viewed the film Viva Erotica at the Review Board’s meeting on 22 November 2006.

3.2 The Review Board received an oral submission from Mr Brian Walters SC representing the Applicant, as well as a written submission. Mr Paul Bevilacqua and Mr Nicholas Brown and Mr Malcolm Day also attended on behalf of the Applicant during Mr Walter’s oral submission.

3.3 Oral and written submissions were also made by the New South Wales Council for Civil Liberties represented by Mr Stephen Blanks and by the Australian Family Association represented by Mr Damien Tudehope. Ms Angela Conway from the Australian Family Association was present during Mr Tudehope’s submission.

3.4 The Review Board then met in camera to consider the matter.

3.5 Further information was requested from the Applicant. This material was circulated to the interested parties. The matter was further considered by the Review Board on 6 December 2006 during a meeting held by teleconference.

 

4. Material taken into account
4.1 In reaching its decision the Review Board had regard to the following:
(i) AdultShop.com Ltd’s application for review;
(ii) AdultShop.com Ltd’s written and oral submissions including survey and expert evidence and all supporting material;
(iii) The film, Viva Erotica;
(iv) relevant provisions in the Act;
(v) relevant provisions in the Code, as amended in accordance with s.6 of the Act;
(vi) the Guidelines for the Classification of Films and Computer Games 2005;
(vii) New South Wales Council for Civil Liberties' written and oral submissions;
(viii) Australian Family Association's written and oral submissions.

 

5 Synopsis
5.1 The film Viva Erotica is of 98 minutes duration and depicts men and women having explicit sex. There is no plot and the persons depicted are not given names. There are six separate, unrelated “vignettes” containing explicit sex scenes, five involving a man and a woman and one involving two women.

 

6 Findings on material questions of fact
6.1 The Review Board determined that there were no depictions of any violence. There was some coarse language used in the film, however, its frequency was insufficient to warrant separate consumer advice. There was no drug use depicted. The nudity was in the context of a sexually explicit film. The movie had no plot or characterisation and therefore no discernible themes of any note.

6.2 Sex –
6.2.1 The Review Board concluded that the film was made in such a way as to be solely for the sexual stimulation and arousal of its audience. This was accepted by the Applicant.

6.2.2 Various forms of sexual activity are explicitly depicted including cunnilingus, fellatio, rear-entry sex, the use of prostheses such as dildos, self, partner and mutual masturbation, ejaculation, as well as digital and penal vaginal penetration and tongue stimulation of the anus. The camera angles are designed to accentuate and focus on the explicit sexual activity. Throughout all six vignettes, there is significant, repeated and frequent usage of filmic techniques to accentuate the sexual activity including close ups, zooms, lighting details, background music and noises by the actors.

Are any "fetishes" depicted?

6.2.3 Whilst Vignette 1 included detailed and somewhat prolonged scenes of toe sucking and licking, these depictions were not considered by the Review Board to constitute a "fetish". The Code and the Guidelines identify fetishes 4 such as body piercing, application of substances such as candle wax, ‘golden showers’, bondage, spanking or fisting. The Review Board considered that the licking of the toes and shoe in this film do not fall into this category.

6.2.4 Further, in Vignette 4. four-finger vaginal penetration is explicitly depicted. However, this activity was not considered to be captured by the term “fisting”. The Macquarie Dictionary does not include a definition of "fisting". The online encyclopaedia Wikipedia defines fisting as “sexual activity that involves inserting the hand and forearm into the vagina or anus”.

6.2.5 In Vignette 6, the man is shown using his open hand to stimulate his erect penis by infrequent moderate slapping. This was not considered to be “spanking” as it was playful rather than violent, was carried out by the man on himself and not a partner and was not a fetishistic act.

 

7 Reasons for the decision
7.1 The Applicant
The paragraphs below paraphrase the arguments for the Applicant, which were clearly put by Mr Walters for the Applicant:

7.1.1 The Applicant submitted that the film should be classified R18+ as although the film contains real depictions of actual sex between consenting adults, it is not offensive to a reasonable adult (by reference current community standards) and therefore does not fall with Item 3(2)(a) of the Code. The Applicant led survey and expert evidence in support of this proposition (see below). The Applicant therefore submitted that the film could not properly be classified X18+. The Applicant further submitted that the Act required the Review Board to apply the standards of morality, decency and propriety generally accepted by reasonable adults and that these standards were necessarily subject to change over time.

7.1.2 It was the Applicant's submission that the Review Board needs to inform itself of community standards to make an informed judgment of what constitutes a depiction of explicit sexual activity that would be offensive to a reasonable adult. The Applicant submitted that Guidelines do not exist to embody community standards but were merely a mechanism to assist in the interpretation of the Code. The Review Board should have regard, the Applicant submitted, to relevant and credible evidence of such standards, where available. The Applicant’s written submission included the statement of three academics who gave as their opinion that Australian adults are not offended by explicit sexual material in films. The submission also included the details of an online survey that, the Applicants submitted, concluded that adults are not offended by explicit sexual material in films.

7.1.3 The Applicant stated that if there was a conflict between the Code and the Guidelines then the Guidelines - being a tool to the interpretation of the Code - must be “read down”. It was the Applicant's submission that there was such a conflict between the Code and the Guidelines in relation to the "general rule" in the R18+ Guidelines which state, in relation to sex that in R18+ films, “simulation, yes – the real thing, no”. The Applicant stated that such a prescriptive rule is in conflict with the parameters of the X classification in the Code

7.1.4 Further, the Applicant submitted, this "general rule" was in conflict with the requirement in the Act that classification decisions have regard to the standards of morality, decency and propriety generally accepted by reasonable adults and the principle in the Code that “adults should be able to read, hear and see what they want”. The Applicant submitted that because State Governments (as opposed to Territory Governments) did not allow the sale or hire of X-rated films, the ability of adults to see X-rated films was being restricted in contravention of the relevant principle in the Code.

7.1.5 The Applicant made no submission in regard to the artistic or any other merit of the film. The Applicant accepted that if the Review Board did not accept the Applicant’s submission that the film was not offensive to a reasonable adult then its application for classification of the film at R18+ would fail.

7.2 NSW Council for Civil Liberties
7.2.1 The Council submitted that the Act encompasses “majoritarian” values and that freedom of expression has flexibility and that the decisions of the Review Board need to reflect the standards of the day.

7.2.2 Mr Blanks stated that due to the technology available today that there had been a shift in community values and that these should be reflected in the interpretation of community standards. He asserted that the “majoritarian” values are not offended by the film Viva Erotica.

7.3 The Australian Family Association
7.3.1 The AFA submitted that it was Parliament’s intention to cover the type of material shown in the film in the X classification.

7.3.2 The AFA further submitted that the X classification was to cover nonviolent erotica of the type depicted in Viva Erotica and that the Guidelines were based on up-to-date standards and were prepared after extensive community consultation and that there had been no change in standards that warranted a change in the way the R and X classifications were applied. It was the AFA’s submission that the Review Board was obliged to apply the "general rule" in the Guidelines unless the specific context, artistic merit or other feature of a film justified a departure from the general rule and that the Review Board had taken this approach in its consideration of films such as Irreversible, 9 Songs and Anatomy of Hell.

7.3.2 The AFA submitted that the majority of the expert material available to the Applicant’s experts had been available during a review of the Guidelines in 1999 and that the Parliament did not consider it necessary to change the X classification.

7.4 Review Board findings
7.4.1 "Community standards" can and do change over time. They are an amorphous concept and difficult to identify with real precision. The legislative scheme (section 11(a) of the Act) requires the Review Board to take them into account (standards of morality, decency and propriety generally accepted by reasonable adults) in its decision making. The Review Board accepts that community standards evolve over time and due to other circumstances (for example as demonstrated by changes in legislation).

7.4.2 As a matter of principle, while survey and expert evidence can be informative and persuasive, the Review Board cannot simply delegate its responsibility to make a decision on community standards to others – no matter how learned those others may be or how many people may be involved in a survey. It is the role of the Review Board to independently apply its understanding and perception of community standards. In this context, the Review Board notes that its membership is selected under section 74(2) of the Act to be broadly representative of the Australian community, presumably to enable it to bring to its decision making the perspective of a wide cross section of the Australian community. In reviewing this application, the review panel was comprised of all members of the Review Board.

7.4.3 The Review Board does not believe that community standards are uniform among Australian adults in the context of sexually explicit films. There is a wide spectrum of views such that notions of "majoritarianism" are difficult to apply. Many adults would not be offended by the material in Viva Erotica or by "stronger" sexually explicit material. Conversely, many would be offended by even the most fleeting of sexually explicit scenes in an artistic film. From this broad spectrum including older and younger, liberal and conservative, passionate and ambivalent views, the Review Board must use its own perception, its experience and available evidence to form the best view in the circumstances of the current standards of the Australian community and reasonable adults.

7.4.4 In reaching its view, the Review Board had regard to its perception of community standards as demonstrated by the process of updating the Guidelines in May 2005 and the debate over the amendments to the X classification at the turn of the decade, both of which involved extensive community consultation and a conclusion, by State, Territory and Australian Governments that the classification regime in relation to R and X rated films did not require an overhaul in light of changing community standards and that the current classifications were, broadly, working well and were in line with community expectations.

7.4.5 It also regarded the general rule in the Guidelines of “simulation yes – the real thing, no”, promulgated by elected Government representatives after community consultation as being broadly representative of the current community standards. The Review Board considers that most reasonable adults would accept that an exception to this rule - permitting explicit sexual activity in a film - may apply when there are other pertinent features, such as artistic or other merit to be considered, and the actual sex is not prolonged or detailed in the context of the film. However, it is the view of the Review Board that in regard to a wholly explicit film, such as Viva Erotica, where the entire film is focused solely on sexually explicit activity and titillation that the community would not accept this under the “exception” rule and that the general rule should therefore apply. The Review Board noted that the Applicant made no submission as to artistic or any other merit of Viva Erotica.

7.4.6 The Review Board considered 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 was the Review Board’s view that as an administrative - not policy making - body required to give effect as best as possible to the intent and letter of the classification regime in the Act, Code and Guidelines, that it 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 without persuasive evidence that community standards justify such a decision.

7.4.7 The Review Board did not consider that the expert and survey evidence provided by the Applicant lent significant support to the Applicant's arguments that reasonable adults were not offended by films containing explicit sex between consenting adults - and that the film was therefore not offensive to a reasonable adult - for the following reasons:

7.4.8 Survey

1. Survey participants were not shown Viva Erotica or a similar film before completing the survey. This would have focused their answers and made them more meaningful;

2. There is no evidence that survey participants had ever watched an explicit sexual film or were aware of what was in such a film;

3. There is no evidence that it was explained clearly, or at all, to survey participants what was meant by "actual" sexual activity for the purposes of the survey;

4. There is no evidence in the survey that participants had been informed of the distinction between the R and X classifications or the availability of films to adults under an R and X classification. For example, it was not explained to survey participants that X18+ films may be legally available on a restricted basis by mail order in some States or in the ACT or NT;

5. As an online survey it may not have been as representative of the broader community as an offline survey, although evidence was given that some adjustment was made to ensure the survey results were broadly representative;

6. Without such context, the survey participant's answers were at best high level, first instinct statements of principle, rather than useful guidance as to what specific sexually explicit matters and depictions cause offence to adult Australians.

7.4.9 Expert evidence

1. The Review Board considered the evidence of Associate Professor Catharine Lumby in detail. Her evidence provides support for the broad notions that an increasing number of adult Australians consume sexually explicit materials, that many, if not most, Australians believe that sexually explicit material should be available on a restricted basis to adults and that most Australians are more concerned about depictions in films of violence than by depictions of sex. However, the Review Board concluded that, despite Professor Lumby's qualifications, these matters - if it is accepted that they are accurate - do not, of themselves, answer the specific question of whether a reasonable adult would be offended by the specific depictions in Viva Erotica. The conclusions in her report were very broad. Other than the 2006 survey referred to above, the survey methodologies on which Professor Lumby relies were not spelt out.

2. The Review Board considered the evidence of Associate Professor Alan McKee in detail. His evidence supports the conclusion that one in four Australians have consumed a sexually explicit film in the last 12 months and that consumers of sexually explicit material are broadly representative of the wider community. He concludes that such consumers are "reasonable". However, his research focuses on the attitudes of consumers of sexually explicit materials and the Review Board does not regard his evidence as persuasive in relation to the question of whether non-consumers of sexually explicit materials would find the material in Viva Erotica offensive.

3. The Review Board considered the evidence of Ms Katherine Albury in detail. In relation to the issue of whether the Australian community believes that sexually explicit material should be available to adults, her evidence notes that there is "very little research in this area". She notes the diversity of values and attitudes within the Australian community, which the Review Board also acknowledges. She notes the rise of “raunch” culture among young women and refers to Sex and the City and "DIY" erotic and/or explicit media. Her conclusion that "most Australians have a "liberal" attitude towards sexually explicit material" does not, however, assist the Review Board materially in its consideration of whether a reasonable Australian adult would be offended by such a film.

4. Overall, the Review Board noted and took into account all the expert evidence in its consideration of current community standards and of whether Viva Erotica contained depictions that would offend a reasonable adult. The Review Board did not regard the evidence as definitive on either issue. The evidence was quite general in nature.

7.4.10 The Review Board also considered the general character of the film as being a depiction of consenting adults, designed solely to titillate its audience. Without making a moral judgment, it was a film of the "pornography" genre with all the attendant directorial and filmic devices. The Review Board considered that this mitigated against a departure from the general rule in the Guidelines.

7.4.11 The Review Board considered the likely audience of the film, being persons in search of titillation or arousal. This would remain the case regardless of whether the film was classified X18+ or R18+. The Review Board noted that due to restrictions in State legislation, the audience would be more limited in number if the film were classified X18+. However, it is not the Review Board's task to second guess decisions of elected Governments or to ensure that a film has the widest possible audience when determining its classification.

7.4.12 The Review Board also took into account the 4 relevant matters under the Code to which it is required to give effect, as far as possible, noting that they are not absolute binding rules but merely statements of principle:

1. Adults should be free to see what they want. Unlike RC films, X18+ films are not prohibited outright. However, the Review Board acknowledges restrictions on the availability of X18+ films and the Review Board is conscious that it should not arrive at X18+ classifications lightly unless it is satisfied that the film is of a nature that is offensive to a reasonable adult.

2. Minors should be protected from material likely to harm or disturb them. This would remain the case regardless of whether the film is classified R18+ or X18+.

3. Everyone should be protected from exposure to unsolicited material that they find offensive. Both R18+ and X18+ classifications are restricted.

4. The Review Board did not believe that the film contained any depictions that condone or incite violence or that portrayed persons in a demeaning manner.

7.4.13 Taking into account the above matters, the Review Board concluded that the depictions of explicit sexual activity in the film Viva Erotica would cause offence to a reasonable adult (either as that term is defined in the Guidelines or as defined in the Macquarie Dictionary), were unsuitable for a minor to see, that there were no circumstances justifying a departure from the general rule in the Guidelines and that that the most appropriate classification for the film was X18+.

 

8 Summary
8.1 It was the Review Board’s unanimous determination that the film was offensive to a reasonable adult and was unsuitable for a minor to see and therefore that the film Viva Erotica should be classified X18+ with the consumer advice of “Explicit sex”.

 

 

January 7, 2007: Eros submit Saddam's execution video

See THE HANGING (2006) entry in our Film Censorship database for information about why this was submitted, and its relationship to the VIVA EROTICA case.

 

 

February 7, 2007: Adultshop.com's court appeal

Federal Court Appeal Of X Classification
AdultShop.com
Media Release: 2 February 2007

AdultShop.com Limited (AdultShop), a leading adult retailer, today lodged an appeal in the Federal Court of Australia seeking judicial review of the decision by the Classification Review Board (Review Board) to give an X18+ classification to the explicit erotic film, Viva Erotica.

The application for judicial review follows the publication by the Review Board on 4 January 2007 of its written reasons for upholding the classification. A copy of those reasons is available at www.censorship.adultshop.com.

AdultShop has always maintained the correct classification for Viva Erotica is R18+ and is appealing the X18+ classification on the grounds that the Review Board:
has not reflected current community standards in its classification of Viva Erotica; and
has wrongfully assumed the Classification Guidelines are an accurate reflection of current community standards.

In addition, AdultShop maintains the Office of Film and Literature Classification, the government agency that provides support to the Review Board, has not properly consulted the Australian community to determine whether explicit erotic films are likely to offend the average Australian adult.

AdultShop’s Managing Director, Malcolm Day, said “the decision by the Review Board was made despite overwhelming evidence put before it that demonstrated the majority of Australian adults are not offended by films involving actual sex”.

At the hearing before the Review Board in November 2006, AdultShop produced evidence in the form of reports from three independent experts, including prominent feminist academic and Sydney University Associate Professor, Catharine Lumby, as well as a national survey carried out in September 2006 by ACNielsen. The results of this survey revealed only 30% of Australian adults considered films involving actual sex to be offensive.

The Review Board disregarded the evidence and found that Viva Erotica was offensive.

“By law, all classification decisions must reflect current community standards, and we are confident the Federal Court will acknowledge that the views of the average Australian are not reflected in the current Classification Guidelines”, said Mr Day.

“If successful, this appeal should have the effect of bringing classification decisions in Australia in line with Europe, the United States and New Zealand”, concluded Mr Day.

 

 

February 27, 2007: Media coverage of appeal

Be adult about porn, pleads industry
theaustralian.com.au, February 27, 2007

Adultshop.com CEO Malcolm Day, whose publicly listed company is valued at $9 million, said standards had changed since the guidelines were drafted in 1984.

"Most reasonable adults would not regard an adult film, depicting sex between two consenting adults, with no violence, as offensive," Mr Day said.

"If a film like Viva Erotica was classified R, then the X classification would have very little work to do," it said. The board rejected the survey on the grounds the respondents had not been shown Viva Erotica. Nor was there evidence they had ever watched an explicit film.

AdultShop.com will present the court with an opinion from University of Sydney media academic Catharine Lumby, who argues "most Australians are more concerned about violence than about sex".

It will also call on Alan McKee from the Queensland University of Technology to argue consumers of sexually explicit materials in Australia can fairly be described as reasonable adults.

"A film involving various forms of actual sexual activity, including close-ups, but with no violence would be unlikely to cause offence," he argues.

Review board spokesman Brinsley Marlay said the classification code "specifies what X-material is and, at present, it's adult films" - non-violent sex films.

 

 

Porn at X-roads
theaustralian.com.au, February 28, 2007

The review board decided Viva Erotica was X-rated. The decision so enraged AdultShop.com boss Malcolm Day, he's taking the case to the Federal Court in Sydney tomorrow.

In what is likely to prove a lively case, the court may be asked to decide whether the average Australian is offended by the sale of videos depicting non-violent sexual acts.

"We simply say the decision of the classification review board is wrong," says Day. "The reasonable adult would not be offended by this film, or by films showing people having sex. We don't say everybody wants to buy them. But community standards have changed."

If the action succeeds, the X-rating would essentially disappear.

"Explicit erotic films will no longer be given the X18+ rating," Day says. "Such films will be more freely available for purchase by all adults, bringing this nation into line with most other Western countries."

Films with sexual violence, rape, child pornography and bestiality would still be banned or refused classification.

Day admits the motive behind his Federal Court challenge is money. If adult films could be sold across the nation and shown more easily in cinemas, his business would expand.

Day estimates the potential market at $400million a year. He is the majority shareholder in AdultShop.com and shares are 3c, making the company worth about $9million. But if he could get sex films into mainstream shops, he would soon be worth far more.

"But that's not really the point," says Day. "The reason we are going to court is that we just don't believe that films that show real sex are offensive to the reasonable adult."

The issue will also be thrashed out in public tonight, at a University of Sydney symposium titled: Sex, Censorship and Community Standards. Symposium moderator, associate professor Catharine Lumby, notes that non-violent sex films have been banned in all Australian states since 1984 "but there is a growing body of evidence the great majority of Australians believe such material should be available for sale or rental in appropriate venues to people over the age of 18".

Lumby cites a three-year, Australian Research Council study which sought to answer such questions as: who uses pornography? And why? "The stereotypical consumer would be a man in a raincoat," says Lumby. "The other idea is that there's an appetite for violent, misogynist pornography. In fact, the most popular type of pornography is not violent. It's consensual sex between adults. Users are evenly split between Liberal and Labor voters; 20 per cent of viewers are women; most people use it for masturbation, but there is widespread use by couples."

"This is not an issue of availability. It's about lumping adult films into the R category, so how long before they are in ordinary shops and cinemas?" Another of the speakers at the forum, lecturer in gender and cultural studies at the University of Sydney Kath Albury, says community attitudes have changed "and there does not seem to be any evidence that the average Australian is offended by non-violent, consensual sex".

Day says the Office of Film and Literature Classification has done "no qualitative research, none whatsoever, on what the community finds offensive". He also notes that a black market in X-rated films thrives.

Police last month raided seven adult book shops in Sydney's Kings Cross and seized 60,000 "illegal" DVDs (which were either X-rated and therefore banned in NSW, or unclassified). Seven people are expected to face a Sydney District Court on March 7.

"Because these films are illegal, organised crime gets involved, most are pirated, and who knows what is in them?" says Day. "What we are asking a judge to decide is to compel the classification board to apply the law properly.

"We want a judge to determine what the current community standards are, and to apply those community standards when classification is given."

It is not clear whether the judge will have to watch Viva Erotica, but Day says it hardly matters. "The point is, this shouldn't be subjective," he says. "We don't say people have to watch these films. We say the average Australian wouldn't be offended if they knew these films could be legally purchased."

But if the judge does watch it? "Well," says Day. "I'd say it would probably have to be in his chambers."

 

 

Readers Comments: Blue movies going for green light
theaustralian.com.au, February 28, 2007

Do we want these films freely available? Some people say they already are. Go onto the internet, and you can see sex with children, sex with goats, sex with amputees, sex with the flat-chested, the big-busted, the absurd.

But as a society, should we condone it? Or do we try to keep tabs on it?

 

 

Sex, Censorship and 'Community Standards'
28.02.07
The University of Sydney

Whether X-rated films should remain banned from sale or rental in all Australian states will be debated by an expert panel at a special symposium hosted by the University of Sydney tomorrow evening (Wednesday 28 February).

Margaret Pomeranz (ABC TV), Malcolm Day (CEO AdultShop.com Ltd), Angela Conway (Australian Family Association) and Kath Albury (University of Sydney lecturer and co-author of 'The Porn Book*'), will ask questions such as:

Should sexually explicit films continue to be banned from sale in all Australia states? Does our censorship regime reflect or deflect community standards?

"Sexually explicit non-violent films have been banned from sale or rental in all Australian states since 1984," said the symposium chair, A/Professor Catharine Lumby. "Yet there is a growing body of evidence that a large majority of Australians believe such material should be available for sale or rental in appropriate venues to people over the age of 18."

"A 2006 AC Nielsen survey found that 76 per cent of adults believed that non-violent erotica should be available to adults," said Lumby, an expert in gender and media studies from the University of Sydney.

AdultShop.com Limited, a major player in the adult film industry, has commenced a legal challenge to the X18+ classification recently given to a sexually explicit film. AdultShop.com is alleging community standards are not accurately reflected in the regulatory regime and classification process in relation to sexually explicit material.

"The portrayal of sexually explicit material in film is, understandably, a contentious issue and one that has been the subject of intense debate by feminists, religious and social conservatives and free speech advocates," Lumby said. "The question remains, however, whether the broader community's perspective is accurately reflected in much of what is said or written about sexually explicit material."

The main justification for the banning of the sale non-violent erotic films by Federal and State Governments of such films is that their content is offensive to the reasonable adult. The symposium will hear new evidence suggesting that community standards are being deflected rather than reflected by current laws as well as considering objections to making non-violent erotic movies more widely available.

The symposium is the first in a series of research seminars to be hosted by the Department of Media and Communications in 2007.

What: Sex, Censorship and Community Standards
When: 5.30pm, Wednesday 28 February 2007
Where: Eastern Avenue Lecture Theatre, Eastern Avenue, University of Sydney.
Speakers: Margaret
Pomeranz, Malcolm Day, Angela Conway, Dr Kath Albury, Associate Professor Catharine Lumby

 

 

March 1, 2007: The case begins

Justice Jacobson Court
Room 21B 9:30 AM First Directions
1 (P)NSD136/2007 ADULTSHOP.COM LTD ACN 009 147 924 v CLASSIFICATION REVIEW BOARD

 

Industry calls for lighter rating on porn
abc.net.au, ABC AM Program
AM - Thursday, 1 March, 2007 08:30:00
Reporter: Karen Barlow

KAREN BARLOW: Sydney University was last night host to a raunchy debate over sex, censorship and community standards.

Movie reviewer and anti-censorship campaigner Margaret Pomeranz says non-coercive, non-violent porn can be a good force in people's lives.

MARGARET POMERANZ: Well it can make people happy, you know, it can improve peoples sex lives, it can be informative.

KAREN BARLOW: Well for other people that is.

MARGARET POMERANZ: I don't consume it! I only read about it!

KAREN BARLOW: Margaret Pomeranz was last night sitting next to the CEO of AdultShop.com, Malcolm Day, who'll be before the Federal Court in Sydney today.

He's taking on the recent decisions of the Classification Review Board as he says community standards have changed.

Malcolm Day says the Board routinely applies an X-rating to sex films that would not offend what he calls a "reasonable adult".

MALCOLM DAY: When I talk about community standards, I talk about current community standards here in Australia today and what the majority of Australian adults believe in.

KAREN BARLOW: Anti-pornography campaigners says Malcolm Day is just trying increase revenue by shifting porn into the widely available R-classification.

But Margaret Pomeranz says the proposal is to create a new stronger R-A category.

MARGARET POMERANZ: No-one is suggesting that this material is freely available through video stores. Are you suggesting that? You most probably would like that.

But, no but I don't think that is an appropriate way to go and I don't think that is a winnable case either.

KAREN BARLOW: The Australian Family Association is happy with the current classification system, and is concerned the legal action will cause major problems.

The Association's Angela Conway says a wide range of pornography is already legally available through mail order.

ANGELA CONWAY: There is a demand for pornography, we would be of the view that that is regrettable but that is a different debate.

People can access X-rated material in Australia very easily at the moment. That it is the reality, and then there is the issue of what we keep out of the X-category and I think a lot of Australians if they understood a lot of the material that is presently being kept out of the X-rated category, they would understand that this is a serious issue.

We are talking about violence and coercion and humiliation.

KAREN BARLOW: But Margaret Pomerantz says there are bigger issues at stake.

MARGARET POMERANZ: Adults in this country have the right to read, hear and see what they want; I mean it is the essence of a democracy.

If you start nibbling at the edges, then I think there is a certain danger inherent in that.

TONY EASTLEY: Movie reviewer and anti-censorship campaigner Margaret Pomeranz ending that report from Karen Barlow.

 

 

Porn industry seeks to challenge X ratings
abc.net.au, ABC The World Today Program
The World Today - Thursday, 1 March, 2007 12:42:00
Reporter: Emma Alberici

EMMA ALBERICI: In Australia, X-rated films can only be purchased from the ACT and the Northern Territory. That's what the law says; the reality is a lot different with a black-market on the eastern seaboard that, even the police admit, is an enormous problem.

MALCOLM DAY: Now this black market on the east coast of Australia, we've estimated to be worth $400 to $500 million.

It’s out of control, and it's been allowed to flourish unabated for many, many years.

EMMA ALBERICI: That's Malcom Day, on his way to the Federal Court to argue that the films he sells through Adultshop.com should be reclassified with an R rating. They feature explicit images of adults having consensual sex with no fetish and no violence

He adds that the burgeoning market in illegal pornographic films points to a society that is no longer offended by graphic depictions of sexual acts.

MALCOLM DAY: I'd like to know, and one thing we have requested, on what basis did the OFLC come to the conclusion that it would a reasonable adult? The X classification came into effect in Australia in 1984.

Since that date, in the last 23 years, there has been no research undertaken by the OFLC whatsoever with respect to adult films, so how did a seven member review board come to the conclusion that it offended a reasonable adult?

EMMA ALBERICI: The X-rating system was developed 23 years ago to take account of those films that, while the average adult might be offended by, should be available in those states that choose to legislate the sale of them.

It was also designed to weed out those other films that contain sexual violence. Those films are refused classification in Australia altogether and it's those films that the Australian Family Association fears might slip through the net if the Federal Court grants the application by Adultshop.com.

The Australian Family Association's Angela Conway.

ANGELA CONWAY: He's asking that explicit sex films, pornography films are going to be lumped into the category of R films, some R films have extensive amounts of violence and some sexualised violence.

So he's actually asking to throw pornography into that mix.

EMMA ALBERICI: But Malcolm Day is adamant that he wants nothing more than to follow the international example.

MALCOLM DAY: Australia is now the only westernised country in the world that bans the sale of these types of films.

EMMA ALBERICI: But there is no community outrage about the lack of availability. The cynic might be inclined to think this is nothing more than a publicly listed company's grab for more cash.

MALCOLM DAY: Of course, we're a business at the end of the day, and as a business we obviously try to make greater revenue and more profits.

Firstly, I don't think its unreasonable for Adultshop.com or any Australian adult to require the OFLC to properly apply the law.

The law says they should apply current community standards and they're not doing so.

ANGELA CONWAY: The statistics indicate that anybody who wants that material has no problem obtaining it legally in Australia at the present time.

EMMA ALBERICI: The Classification Board at the moment, won't classify a movie that depicts sexual, pornographic violence.

ANGELA CONWAY: Yes, and we believe that's quite rightly so.

EMMA ALBERICI: So what's your concern then about such movies entering the realms of R classification if they currently even achieve an X?

ANGELA CONWAY: The whole point of an X classification was to allow Australians the freedom to see non-violent pornography without mixing it up with violence.

That's the whole point of the classification. That purpose has been achieved, it's just that Adultshop.com wants more market share in the trade.

EMMA ALBERICI: But it will still be at the discretion of the Review Board to classify as R or otherwise a movie. So if a movie comes before them that has sex and violence, then assumedly it still will refuse to classify it, let alone give it an R.

ANGELA CONWAY: Look that's not clear at all. The rules of classifying R rated films under precedent and so on, allow them to put in some actual sex and some explicit sex now.

So it's not clear how it will pan out, but the whole point of the X classification was to allow Australians to have that choice to see non violent pornography but to keep it separate from violence.

That's the whole point of the X classification and Adultshop.com wants to get rid of the X classification and put pornography back into the mix with violence in the R category.

ELIZABETH JACKSON: Angela Conway of the Australian Family Association ending Emma Alberici's report.

 

 

Board to study positions on porn
theaustralian.com.au, March 1, 2007

THE Classification Review Board has agreed to conduct research into whether the so-called reasonable adult is offended by films that show actual sexual intercourse.

A spokesman for the board said the research into community standards would take place through a series of forums over the next six months.

The public will be recruited and may be shown movies and asked whether they agree with the ratings given. It will be the first such review since the 1990s.

A spokesman for the minister responsible for the board, federal Attorney-General Philip Ruddock, said he would not comment on a case before the courts.

 

Letters: Classification Review Board
theaustralian.com.au, March 7, 2007

CONTRARY to Caroline Overington’s story “Board to study positions on porn” (1/3), which stated that the Classification Review Board would be conducting research into whether the “so-called reasonable adult is offended by films that show actual sexual intercourse”, the board does not conduct research.

It’s an independent statutory merits review body. The board’s role is to classify films, computer games and publications when an application for review of an existing classification is made. Its role does not and has not included the conducting of any form of research at any time.
Maureen Shelley
Convenor, Classification Review Board

 

 

Porn challenge 'could open floodgates'
smh.com.au, March 1, 2007

Federal Court Justice Peter Jacobson adjourned the matter to March 5 for further directions.

AdultShop.com founder and chief executive Malcolm Day said Ms Conway [Australian Family Association] was trying to "muddy the waters" by claiming other, more extreme forms of pornography could become readily available as a result of his legal challenge.

He said violent-erotica was never approved by the review board as X18+ material and would therefore never, ever be classified R18+.

"There is only one thing which we require the judge to determine and that is: Does Viva Erotica offend the majority of Australian adults, and if it doesn't then it should be classified R18+," Mr Day said.

He said when the X-rated classification was formed in 1984 there was no community consultation about what a "reasonable adult" would find offensive.

"We can't find any evidence that (the board) has ever consulted the community at large with their views about adult films," Mr Day said.

"How the hell did they know what the community standards were back then if they did not consult with the community?

 

 

X-rated ban holding back Adultshop.com

The following extracts from their 2007 Annual Report illustrate how much of a problem the X18+ ban was for the company.

AdultShop.com Limited
Annual Report 2007

Company Vision
The company is committed to lobbying for changes in the regulations affecting the sale of adult films that have been classified by the Office of Film and Literature Classification, in Australia. The Company also continues to fight to end the rampant and blatant infringement of its copyrights.

Chairman’s report
The full potential of the Company’s retail stores continues to be hampered by the ban on the sale of X-rated DVDs in the states of Australia. The Company has sought to seize the agenda with the challenge against the current X-Classification in the Federal Court, and constant lobbying to State and Federal Governments. However, in the year under report and in the absence of law reform, the Company’s retail division is unable to perform to its potential and will return only modest profits.

Similarly, the prevalence of DVD piracy in Australia is robbing the Company’s wholesale division and direct online sales of the proper return on the Company’s exclusive Australian copyrights in X-rated DVDs. There is a strong market for X-rated DVDs in Australia, and most adults consider the sale of X-rated material to be acceptable. The Company has funded Adult Industry Copyright Organisation (AICO) in an effort to drive out DVD piracy, and the organisation has been uniformly successful in its prosecutions against DVD pirates. This has distorted the financial success of this division in 2007 - legal action is expensive and damages take time to collect. Many of the defendants in piracy cases have attempted novel defences for their conduct which, while futile in the long run, delay the collection of damages. Though the Company believes the money invested in prosecutions is well-spent, having regard to the damage piracy causes to the Company’s sales, criminals are entrenched in this market and unfortunately State and Federal Police will rarely take action.

The potential growth in sales for the telephone and online entertainment divisions continues to be stifled by censorious Federal legislation, and law reform cannot be assumed in the foreseeable future. Without amendments to Federal laws denying Australian adults access to sexually-explicit telephone and web services, these divisions will continue to make modest profits and in the aggregate will not deliver sales to the extent that the Company’s infrastructure could easily support.

The Board is alert to the constraints on the Company’s operations which limit growth potential. To the extent that the legal process can change the regulatory environment, or stem the losses to criminal operations, the Board is satisfied that the Company’s management is prevailing as well as can be expected. Although the adult goods and services industry has the capacity to generate profits commensurate with demand, the Company cannot compete with criminal operations, or expect to meet customer demand when its goods and services are banned by Government. Without a seismic change to the Company’s regulatory environment, with at least some legal restrictions lifted or the police taking steps to enforce the law against criminal operations, the Company will be obliged to consider options for structural change in 2008.

managing director’s report
Australian retail web site sales and profitability have continued to increase largely due to cost effective traffic generation, improvements made to the site internally and the increased propensity of Australians to shop online. Online sales from the adultshop.com web site would be significantly higher however, if we were able to effectively stamp out illegal operators. There are many illegal operators who sell, from within Australia, pirated and imported unclassified DVDs from web sites and via mail order.

The number of stores operating illegally in Australia also continues to grow which directly impacts upon the growth of sales from the adultshop.com web site. It is illegal to sell X18+ films in the States of Australia. However, most stores sell X18+ DVDs in addition to pirated and imported unclassified DVDs. Despite efforts of State Police, these operations have flourished across Australia.

If the sale of sexually explicit (currently classified X18+) DVDs were to become legal in the States of Australia, expansion of the Retail Stores division on a national scale would be feasible. This would bring about immediate significant increases in revenue. However, so long as the sale of sexually explicit DVDs remains illegal the Retail division cannot consider national expansion.

The Calvista Wholesale division achieved financial results similar to those of the previous financial year. Growth in this division continues to be hampered by the wholesale sale of pirated and imported unclassified DVDs. Sales through the division’s Mail Order business are also affected by other mail order companies illegally operating primarily out of Darwin Post Office Boxes, selling pirated and unclassified DVDs. The Company has maintained persistent lobbying of Australia Post for several years to shut down Post Office Boxes of illegal operators. Lobbying of NT politicians, police and the Attorney General has failed to stamp out the illegal operators.

The fight against piracy on a wholesale basis will continue to be a priority, as well as working with Customs to stem the importation of unclassified DVDs. Through our Censorship Challenge in the Federal Court of NSW, we will also continue the battle to allow adult businesses to sell sexually explicit DVDs to adults from licensed premises throughout the states of Australia. Success in these areas is critical to the long term financial performance of the company.

Malcolm Day
Managing Director

 

Letter to shareholders
During the year, the Company has continued to campaign and lobby for the right to sell non-violent erotic films, currently classified X18+ by the Office of Film and Literature Classification (OFLC), from licensed adult stores within each of the Australian states. Existing state classification laws make it illegal to sell X18+ films within the states of Australia, whilst it’s legal to sell them in three suburbs of Canberra as well as most of the Northern Territory.

Australia is the only westernised country in the world that criminalises the sale of non-violent erotic films! New Zealand, the US, the UK and all of Europe allow the sale of non-violent erotic films.

The prohibition on the sale of such films within the states of Australia is a serious impediment to the growth of the Company.

Over the last few years, I have written numerous letters to various politicians, the OFLC, Police Ministers as well as the various State Attorneys General, seeking their support in regulating the sale of non-violent erotic films, however it has been to no avail. Nothing has changed! The Australian government seems adamant to govern via reactive policy rather than take a proactive approach. The alcohol and drug abuse crisis that has been allowed to prevail for decades in outback aboriginal communities is a prime example of the lack of proactive policy by the Australian government. Despite knowledge of this problem for many years, the government has only recently taken affirmative action.

Meanwhile the illegal sale of unclassified and pirated adult films continues to flourish unabated throughout the Country. Organised crime gangs continue to pirate adult films on a grandiose scale and sell them wholesale to adult stores and other outlets like newsagents and petrol stations throughout the states of Australia. Most of these films are unclassified by the OFLC. If they were classified by the OFLC, most would be given a ‘Refused Classification’ (RC) classification because they contain abhorrent material, such as violence. The Company has employed private investigators to monitor the level of piracy of adult films in Australia, particularly those films sold in adult stores throughout the states of Australia.

Feedback indicates that in excess of $100 million per annum of pirated adult DVDs are sold from adult stores throughout the states of Australia. Australia is in the grip of an adult DVD piracy epidemic. Through the efforts of the Adult Industry Copyright Organisation (AICO – see www.aico.org.au), piracy and the sale of pirated adult DVDs, has slowed down, however, urgent Government and police action is needed to arrest this serious problem. AICO has been successful in a number of legal actions against pirates over the last two years. The Company is the largest funder of AICO.

In addition to increased piracy of adult films, over the last few years there has been a significant increase in the illegal importation of unclassified adult DVDs into Australia. Again, were these DVDs to be classified by the OFLC, many would be given an RC classification due to the illegal nature of their content. I understand that these DVDs are imported illegally in large quantities and are sold wholesale to adult store owners and other retailers who then on-sell them to the general public. Private investigators employed by the Company estimate that in excess of $200 million per annum of imported unclassified adult DVDs are illegally sold from adult stores throughout the states of Australia.

We desperately need the Australian Customs Service and the Government to take immediate action to stem the illegal importation of such large quantities of unclassified adult DVDs into Australia. The Company has met with representatives of the Australian Customs Service to offer guidance and assistance with the problem but unfortunately this has not resulted in any change.

Returning to the issue of the classification of non-violent erotic films, the Company appeared in the Federal Court of New South Wales on September 6th this year in relation to the Company’s Application to Review the decision by the Classification Review Board to classify the film Viva Erotica X18+. At the time of printing this report, the Company had not yet received a decision from the Judge. The decision is expected to be handed down within the next few months.

It is the Company’s view that the OFLC, through its Classification Board and the Classification Review Board, is not keeping abreast of community attitudes and standards with respect to the classification of adult films.

Under the Classification Act a number of matters must be taken into account when classifying films, including the standards of morality, decency and propriety generally accepted by reasonable adults. These requirements are reflected in the National Classification Code, which prescribes, amongst other things, that classification decisions are to give effect, as far as possible, to a number of principles, including a key principle that adults should be able to read, hear and see what they want.

The criteria prescribed by the law for the classification of a film as X18+, contains a test that practically applies these principles in the classification process. At the heart of this test is the requirement that for a film to be classified X18+, it must

“contain real depictions of actual sexual activity between consenting adults … in a way that is likely to cause offence to a reasonable adult.”

The Company believes that it was able to prove, using substantive evidence, that community standards are such that the portrayal of actual sexual activity in standard explicit erotic films does not offend the reasonable adult in Australia.

Consequently, such films should not fall within the X18+ classification. It would be the Company’s further contention that as a result of not falling within the X18+ classification, the standard explicit erotic film must fall within the R18+ classification, which would have the effect that such films would be available for purchase within each of the states of Australia. It is my firm belief, supported by many parties within the Australian adult retail industry, that proper administration of the existing legal regime is required to create a regulated adult film market. This would ensure that the problems associated with piracy and illegal importation of unclassified adult DVDs are minimised. The unregulated adult film environment that has been allowed to flourish unabated for so long must be changed urgently!

For the Company to grow and prosper, we must see change and proper regulation of the sale of adult films within Australia. I would urge you as shareholders to visit our dedicated censorship web site, censorship.adultshop.com and have your say.

Yours Faithfully
Malcolm Day
Managing Director

 

AUSTRALIAN RETAIL DIVISION
Positive changes to the Federal Classification Act resulting from the Company’s X18+ film Classification Challenge would greatly enhance the retail business by increasing the product offering at existing stores and opening the way for expansion of the Retail division into the Eastern States of Australia.

 

 

November 27, 2007: Censorship and piracy hurt Adultshop.com

AdultShop.com Chairman Kim Heitman on the problems facing the company.

Sex doesn't always sell for erotica company
heraldsun.com.au
, November 27, 2007

"We're seeking to have non-violent erotica taken out of the X classification and put back into R," Mr Heitman said.

"That would have a very positive impact on the company's sales. The X classification is too rigid for the Australian populace."

Mr Heitman said he would welcome the relaxation of some of Australia's censorship restrictions, particularly for online content.

"We've also got the restrictions of the telecommunications laws, which were brought in by the former federal government, which effectively closed down some of the company's telecommunications divisions," he said.

"There is some hope of being able to lobby the incoming government to see if we have the opportunity of having the law returned to the position it was under the Keating Labor government where, for example, adult telephone services were legal."

Mr Heitman said flourishing interstate and overseas piracy was hitting AdultShop.com's wholesale and retail sales hard, and the company had launched several legal actions, cracking three large piracy rings.

"We have, within the current calendar year, substantial damages coming our way," he said.

The company has sought orders against shops selling pirated material, allowing search and seizure, and has raided mail order firms.

"In Melbourne and Sydney, X-rated DVDs are being sold under the counter at newsagents," Mr Heitman said.

 

 

Penny dreadful AdultShop.com feels pinch of censorship, piracy
thewest.com.au, November 27, 2007

"The best we can say is that at least the proposal floated by the former government of banning MA15 content from the internet and phones doesn’t look like it is going to be proceeded with now.

"That would be very damaging indeed because MA content is, by definition, suitable for children but nonetheless, it would be unavailable on the internet or mobile phone under that proposal."

He said the company had launched several legal actions, cracking three large piracy rings.

"We have been trying to get some pressure on state and federal police to enforce the (piracy) law but it is very difficult and is not seen as a legislative priority."

 

 

November 29, 2007: Adultshop.com case dismissed

In November the challenge was dismissed by the Federal Court.

Adultshop.com Limited (ACN 009 147 924) V Members of The Classification Review Board and Attorney-General (Commonwealth)
NSD 136 Of 2007

Jacobson J
29 November 2007 Sydney
In The Federal Court of Australia
New South Wales District Registry NSD 136 Of 2007

Between: Adultshop.Com Limited (ACN 009 147 924) Applicant and:
Members Of The Classification Review Board First Respondent
Attorney-General (Commonwealth) Second Respondent
Judge: Jacobson J
Date of Order: 29 November 2007
Where Made: Sydney
The Court Orders That:

1. The application be dismissed, with costs.

 

 

November 29, 2007: Adultshop.com informs the stock exchange

29 November 2007
The Manager
Australian Stock Exchange Ltd
Level 4, 20 Bridge Street
SYDNEY NSW 6000

Dear Sir
ADULTSHOP.COM LIMITED CHALLENGE OF OFLC REVIEW BOARD CLASSIFICATION DISMISSED

Adultshop.com Limited has today been informed that the company's Federal Court of Australia (NSW) appeal (refer ASX announcement 5 February 2007) of the decision of the Office of Film and Literature Classification (OFLC) Review Board to X18+ classification to the explicit erotic film , Viva Erotica has been dismissed with costs.

Yours faithfully
Malcolm Day
Managing Director
AdultShop.com Limited

 

 

January 7, 2008: Criticism of decision

Moral cleansers past their use-by date
theaustralian.com.au, January 7, 2008

The recently concluded case between listed adult products company Adultshop.com and the CRB was a benchmark case. Adultshop.com argued that the CRB had erred in classifying one of its films, Viva Erotica, by giving it an X18+ classification (sexually explicit nonviolent erotica).

Under Australia's national classification code a film can only be given an X18+ classification if it is likely to cause offence to a reasonable adult. Adultshop.com argued that the times had been changing since the code was written in the early '80s and backed its case by producing a reliable ACNielsen community survey (conducted in September 2006) that showed that 70 per cent of Australians were not offended by films containing explicit sex and that 76 per cent actually thought that X18+ films should be legally available to adults throughout Australia. At present all states make the sale of this product illegal.

It maintained that this majority of Australians represented the reasonable adult at law and in representing the reasonable adult, the CRB had not only failed to produce any research of its own to refute this claim but had manifestly failed to apply community standards to its decision, which it is required to do under the federal Classification Act 1995. Indeed, the CRB was forced to admit that the Office of Film and Literature Classification had not conducted any relevant research at all into community attitudes about X18+ films.

In rejecting the evidence of three independent experts that Adultshop.com had called to support its view that Viva Erotica was not offensive to the reasonable adult, the CRB said that it would not accept any expert witness testimony if it contradicted the classification guidelines. No matter how learned they be or how many are involved in a survey, we will not delegate our responsibility to make a decision on community standards to others.

Really? What if the others happened to be the rest of the nation? Would they stick by their elitist position then?

The CRB was also critical of the ACNielsen community survey because it said the respondents were not shown the film about which they were being questioned. For a start the film would probably be illegal to show to those respondents in the states, and at 98 minutes would clearly have made a standard poll impossible.

But how patronising to ordinary Australians to suggest that they needed help to know whether an X-rated film was offensive to them. And how inconsistent of them not to question the formal submission of morals campaigner Damien Tudehope from the Australian Family Association on the grounds that he, too, hadn't seen the film. In fact, why did they give him standing in this appeal anyway?

The poor intellectual grasp of the issues by the CRB did not stop there. It also criticised the surveys put forward by Adultshop.com, saying there was no evidence that those being surveyed had ever watched a sexually explicit film and that this could cloud their judgment.

So, how representative would the survey have been if they had interviewed only people who watch X-rated films?

Unbelievably, Federal Court judge Peter Jacobson agreed with the CRB and said that a large majority community opinion did not necessarily equate to the reasonable adult in the classification code. Well, what does then? The views of seven handpicked Howard appointees? Hardly. And despite the assertions of the CRB, the classification guidelines for films conveniently exclude a definition of the reasonable adult.

The judge's decision was full of Grundyisms. He seemed obsessed with the demarcation line between R18+ and X18+, repeating that X was only for the real thing. He ought to broaden his viewing habits by going to the local video shop and hiring a copy of the R-rated movie Nine Songs. He'll see a half-dozen very real sexual acts in that, which should really confuse him.

This court case has, for the first time, shed light on how the offensiveness test is applied to sexually explicit material in Australia. In the past, it has always been assumed that a majority needed to be offended. What the court has confirmed is in fact the opposite: that a minority will suffice.

This means that any film containing sexually explicit scenes should be classified X18+ because there will always be a minority of reasonable Australians who will be offended by such material.

Surely, it was never contemplated by state premiers when they banned the sale of such material in the '80s that they would regard the sensibilities of the few to be sufficient to dictate what the majority of reasonable Australian adults could or could not see.

With Howard gone, it's time for the new Attorney-General, Robert McLelland, to step in and modernise Australia's classification scheme for nonviolent erotica. The best way to do that would be to get some truly national uniform laws in place that express the nation's real moral codes and not those of Mrs Grundy and a number of nanny states.

 

 

May 12, 2008: Adultshop.com fight back with the facts

Summary: Censorship Appeal
Adultshop.com, May 12, 2008

BACKGROUND

In October 2006, AdultShop.com submitted the non-violent sexually explicit film Viva Erotica (a montage of sex scenes created specifically as a test case for Australian censorship laws), to the Office of Film and Literature Classification (OFLC) for classification. The Classification Board (CB) gave the film an X18+ classification. In November 2006, AdultShop.com appealed the classification to the Classification Review Board (CRB) who subsequently upheld the X18+ classification.

In September 2007, AdultShop.com presented its case in the Federal Court of New South Wales for judicial review of the X18+ classification given to Viva Erotica by the Classification Review Board. In November 2007 Judge Jacobson dismissed the case in favour of the CRB. AdultShop.com is appealing Judge Jacobson’s ruling to the full bench of the Federal Court in Perth, Western Australia, on May 14th, 2008.

ADULTSHOP.COM’S ARGUMENT

The basis of AdultShop.com’s argument is that the CB and then the CRB failed to properly apply the Classification (Publications, Films and Computer Games) Act 1995 (the Act) when classifying Viva Erotica. If it had done so, the film would have been classified R18+, thus making it legally available for sale to adults throughout the states of Australia. In contrast, X18+ classified films are illegal to sell in the states of Australia, but legal to sell in prescribed areas of the Northern Territory and the Australian Capital Territory. It nonetheless remains legal to possess X18+ films in all states of Australia.

AdultShop.com’s belief that the CB and the CRB failed to properly apply the law (the Act) is premised on the following:

1) The Act requires current community standards to be applied by the CB and CRB when classifying films; and

2) The National Classification Code (the Code), an annexure to the Act, requires that for a film to be classified X18+, it must “contain real depictions of actual sexual activity…in a way that is likely to cause offence to a reasonable adult...” That is, the film must be deemed to be likely to cause offence to the majority of adults in Australia.

Section 9 of the Act requires that classification decisions be made in accordance with the Code and the Classification Guidelines (the Guidelines). The Act also requires that “the matters to be taken into account when making a decision on the classification of a… film… include: the standards of morality, decency and propriety generally accepted by reasonable adults…” This means that films must be classified in a way that reflects current community standards.

So, applying the Act and the Code, if the community standard is that non-violent sexually explicit films cause offence to reasonable adults (ie feelings of outrage and/or disgust), then such films should be classified X18+. Equally, if the community standard is that non-violent sexually explicit films do not cause offence to reasonable adults, then such films should be classified R18+.

DETERMINING CURRENT COMMUNITY STANDARDS

The key to correctly classifying films so that current community standards are properly reflected, is to first undertake research to determine such community standards having regard to the various classifiable elements of films. That is, general personal views of the majority of Australian adults concerning violence, coarse language, themes, drug use, nudity, sex and all other elements used to define each classification category. This research should be undertaken on a regular basis by the OFLC.

Having determined those community standards, each film with it’s set of classifiable elements can then be given the classification that best reflects those standards. This kind of research can also assist in highlighting limitations within the classification categories themselves, identifying the need for redundant classification categories to be retired and for new more appropriate categories to be established. Results from research of this type can also assist in keeping the legislation regarding the availability of certain films, like non-violent sexually explicit films, in line with community standards.

OFLC RESEARCH

So how does the OFLC determine community standards in order that they be properly applied by the CB and CRB when classifying films? Since 1992 the OFLC has called for public submissions and undertaken qualitative and quantitative research including discussion panels and surveys, to determine societal views (ie community standards) regarding the classification of films.

Generally, the approach taken by the OFLC when commissioning research, has been to brief groups of twenty or so people on the Guidelines, have them watch three movies and then ask them to classify the films in accordance with the Guidelines. The classifications given by the panellists are then compared with the film classifications the OFLC has given the same films and if they are mostly similar, then classification decisions are considered to reflect current community standards. It is worth pointing out here that whilst the definition for an X18+ film within the Code applies an offensiveness test, the Guidelines do not. That is, the Code and the Guidelines are inconsistent.

However it seems that at no time have participants in OFLC research been asked their general views about the classifiable elements in those films. It also seems that the OFLC has in fact merely measured awareness and interpretation of the existing classification categories outlined in the Guidelines. Furthermore, in most cases the full suite of classification categories has not been assessed. Specifically, films containing non-violent sexually explicit content have been omitted from research.

Despite this, relevant recommendations and statistics have emerged from OFLC commissioned research that:

· support the need to better research the community’s views on non-violent sexually explicit films;

· support the desire for films containing non-violent sexually explicit content to be made available for sale to adults throughout Australia; and

· show a pattern indicating the majority of Australian adults are not offended by non-violent sexually explicit films.

OFLC commissioned research made publicly available by the OFLC is summarised below:

1) September 1992: Marketing research and consultants Frank Small and Associates surveyed 1016 people and prepared a report for the OFLC and the Australian Broadcasting Tribunal titled Exploring attitudes towards film, TV and video classifications. With respect to the availability of films containing non violent sex, the report found “Without showing actual material but describing it as ‘explicit’, there is majority support for ‘X’ rated material involving scenes of actual sex between consenting adults being made available to adults 18+ years (70% agree) but not on all media. It is thought most appropriate for video (71%) but least appropriate for TV (19%).”

It stands to reason that a person who believes sexually explicit films should be available for sale to adults throughout Australia, does not find such films offensive. The Frank Small report demonstrates that in 1992 a majority of Australian adults were not offended by sexually explicit films.

2) April 1994: A survey commissioned by the OFLC and carried out by the Australian Bureau of Statistics in April 1994, showed that two out of three respondents who held a firm opinion believed X-rated videotapes (i.e. sexually explicit consenting adult material) should be available to adults in Australia.

These research findings have not been reflected in subsequent film classification decisions made by the CB or CRB, nor reflected in the development of policies concerning non-violent sexually explicit films.

3) June 1998: Report by Keys Young on Community Assessment Panels conducted by the OFLC in 1997. The specific research objectives were to:

a. Assist Censorship Ministers and members of the Classification Board to understand community attitudes to the classification of films;

b. Examine aspects of films that people found most troubling or about which they expressed concern;

c. Explore the extent to which decisions of the CB could be considered to represent community standards.

Panels were conducted in Sydney, Brisbane and Wagga Wagga, each one consisting of twenty or more panellists. Each panel was shown three prerelease films over a period of three days.

The overall result of the panels was that six of the nine films assessed were given the same classification by panellists as that given by the CB. However, the report highlighted that “The films viewed tended not to have a sexual focus and most contained little or no sex.” The one film which did contain some simulated sexual content was Dangerous Beauty and the report pointed out that “The Panels’ discussion and classification of Dangerous Beauty revealed wide divisions and extremes of classification decisions (spanning from PG to R).” There was certainly no clear agreement among the sixty or more panellists that the film and its sexual content should be conservatively classified. In addition, the report highlighted that overall, the panels “regarded sex as an element of less concern than violence and some of the adult themes.”

In section 5.3 of this report, titled R/Refused Classification, it was highlighted that no X18+ films were put forward for assessment. If the CB and CRB are to accurately reflect current community standards when classifying non-violent sexually explicit films (typically classified X18+), then they must include such films in their research to determine those community standards! How can they possibly determine them otherwise?

4) June 2000: Report by Keys Young on Community Assessment Panels conducted by the OFLC in 1998. The specific research objectives were to:

a. Assist Censorship Ministers and members of the Classification Board to understand community attitudes to the classification of films; Page 4 of 9

b. Examine aspects of films that people find most troubling or about which they express concern;

c. Explore the extent to which decisions of the Classification Board can be considered to represent community standards.

Panels were conducted in Perth, Adelaide and Bendigo, each one consisting of twenty or more panellists. Each panel was shown three pre-release films over a period of three days.

In conclusion, the report stated that the classification decision of the panellists mirrored those of the CB. However, the report summarised that “Most of the films selected for viewing did not have a strong sexual focus.” It also notes that “Several female participants enjoyed the sex scenes in A Walk on the Moon because the treatment was said to be loving and erotic. Panellists generally did not have significant concerns in relation to these sexual themes.”

Once again, no R18+ films containing sex scenes or X18+ films were put forward for assessment and the research again failed to determine community standards with respect to the classification of non-violent sexually explicit films.

5) February 2002: Dr Jeffrey E Brand, Co-Director of Bond University Centre for New Media Research and Education, prepared a report for the OFLC titled Review of the Classification Guidelines for Films and Computer Games via assessment of public submissions on the discussion paper and draft revised Guidelines.

Within his review Dr Brand made the recommendation that “The case for more research on national community values with respect to adult video content was made persuasively and should be considered for inclusion in the ongoing review process.”

The review also highlighted that “No decision in relation to this review of Classification Guidelines can be defensibly followed from a generalised view of community standards. Rather, decisions in the review will be most convincing when they are determined specifically in relation to the community standard for the particular classification issue, category or element under consideration.”

There is no evidence to indicate that the OFLC has ever acted upon Dr Brand’s recommendations. Research into community standards with respect to non-violent sexually explicit film content has not developed to include content typically classified R18+ or X18+. Similarly, reviews of Classification Guidelines have not been undertaken by the OFLC, armed with a clear and comprehensive understanding of the current community standards with respect to all classification categories. The X18+ category and R18+ films with sex scenes have always been intentionally omitted.

6) December 2004: Kate Aisbett of Entertainment Insights prepared a report titled Report on the review of the operation of the 2003 Guidelines for the classification of films and computer games. The report noted that films classified X18+ were outside the scope of this particular review on the basis that “the X18+ classification is a special category which contains only sexually explicit material and only applies to sale/hire films. There were no changes to the X18+ category with the introduction of the 2003 guidelines and it was therefore not necessary to examine these decisions.”

Further, the report noted that “overall the submissions [regarding the revised Guidelines] suggest there is a lack of understanding of how the 2003 Guidelines are intended for use, and in particular, how the ‘impact test’ is employed by classifiers.” Overall, the report highlighted that not only did the 2003 Guidelines not take into account a review of the X18+ category, but also, it was not considered worthwhile to examine whether in fact the 2003 Guidelines should have included a review of the X18+ category.

7) February 2005: Report by Urbis Keys Young on Community Assessment Panels, conducted by the OFLC in 2004 to determine the extent to which decisions made by the CB reflected current Australian community standards with respect to films and computer games. Three panels each consisting of eighteen to twenty panellists in each of Canberra, Alice Springs and Melbourne were shown two films and asked to play two computer games.

They were then asked to classify the films and games in accordance with the Guidelines. The report summarised in conclusion that “The results… confirmed that the decisions of the Classification Board can be considered to be generally in line with community standards. For most of the films and most of the computer games used in the project, the Board’s decisions agreed with the preferred classifications of the majority of panellists.” The classifications given by the panellists were compared with the film classifications the OFLC had nominated for the same films as they were largely consistent, it was concluded that the OFLC’s classification decisions reflected current community standards.

This conclusion highlighted a critical limitation of the panels however: the films used in this project did not incorporate any film containing sex scenes. The report pointed out that “Nudity did not feature prominently in panel discussions, with most of the films used in the research having only minor nudity or none at all” and “…there were no R18+ films available [for review].” In fact, there were only two films that contained nudity and panellists were not given the opportunity to express their views with respect to non-violent sexually explicit film content. Therefore no data was generated out of this research for the OFLC and CB to reference when classifying such films.

The report also summarised that “Panellists identified sex and sexual references as important considerations for classification purposes, but sometimes felt that the Board was more sensitive than necessary to the impact of sexual content in individual films.”

As in previous research conducted, no R18+ films featuring sex scenes or X18+ category films were included for assessment.

8) March 2008: Galaxy Research prepared a report for the Australian Government Attorney-General’s Department titled Classification Decisions and Community Standards 2007 Report.

This research was conducted in November 2007, shortly after AdultShop.com took its case to the Federal Court of Australia with evidence to show that the OFLC had failed to properly apply current community standards when classifying the film Viva Erotica X18+. AdultShop.com’s assertion is that the OFLC has never conducted research to determine community standards with respect to non-violent sexually explicit films or films typically classified X18+. AdultShop.com argued that the CB and CRB had simply applied the puritan subjective and personal views of its members rather than current community standards when it classified Viva Erotica.

It is believed the Galaxy report was commissioned specifically to collect evidence to refute AdultShop.com’s claims that the CB and CRB did not take current community standards into account when classifying Viva Erotica and more specifically to produce qualitative and quantitative evidence to support the assertion of the CB and CRB that the majority of Australian adults do not wish to see non-violent explicit actual sexual content allowed in the R18+ category. This is the view the OFLC believes is true and wishes to protect.

The research comprised “in-depth” interviews of just ten people followed by telephone interviews of 1516 people. Some sweeping conclusions were made in the report such as “the majority 57% of adults were not able to name anything that should not be in a movie rated R18+. This does not necessarily mean they believe anything is acceptable, rather they were unable to think of any such elements in the context of a telephone interview.” If a telephone interview is how you conduct the research, then that’s the data you have to work with!

Seeking to quote results that supported the belief the OFLC did reflect current community standards when classifying non-violent sexually explicit films, the Galaxy report based its conclusion concerning community standards with respect to “actual intercourse” appearing in R18+ films, on the results of question G4. This question involved a preamble describing the fact that the Guidelines outlining the R18+ category currently excluded actual intercourse. This question produced the result that 46% of the population believed that actual sex should not be allowed in R18+ films.

This is a significant number, but it also produced the result that 48% believed actual sex should be allowed in R18+ films. The report’s conclusion did not include reference to question G1, which simply asked respondents if there was anything that should not be allowed in an R18+ film. This unprompted question produced the result that a minority 10% of respondents thought extreme/actual sex and pornography should not be allowed in R18+ films.

The result from the unprompted question G1, was significantly different to that arising out of the prompted question G4. AdultShop.com believes the results produced by the unprompted question G1 were more representative of respondents’ actual views and since they did not support the view that the OFLC aimed to protect, they were not referenced in the report’s conclusion.

Significant evidence exists to demonstrate that the current community standard is that the majority of Australian adults are not offended by nonviolent sexually explicit films and therefore, taking into account the requirements of the Act and the Code, such films should be classified R18+.

Overall, the Galaxy report treats awareness and understanding of classification categories as support for them and the research questions prompt answers toward support for a classification system that’s “about right” instead of one that truly reflects current community standards.

WHAT HAVE THE OFLC DONE WITH THE FINDINGS?

In all but the 2008 Galaxy report, the 1994 ABS report and Frank Small’s 1992 report, research undertaken for or by the OFLC to determine community standards with respect to the classification of films, R18+ films containing sexual content and the X18+ category have been omitted. The panels that have been conducted have not been national, and have not been even close to being a significant sample size representative of the majority of Australian adults.

There have been recommendations made however, within OFLC commissioned research reports, regarding these omitted categories. These included recommendations as to the need to conduct ongoing comprehensive assessment of community attitudes across classification categories that include the X18+ category. This has not occurred. The X18+ category has openly been described as a special category that does not require community input. Nowhere in the Act, Code or Guidelines however, does it state that the X18+ category is a special category to which community standards need not be applied. In fact the definition within the Code of an X18+ film specifically requires application of community standards.

It is AdultShop.com’s view that, in reality, the OFLC has known since 1992 that nonviolent sexually explicit films do not offend the majority of Australian adults and that the approach it has taken with classification stinks of conservatism and wowserism. The CB and CRB have bestowed upon themselves judge and jury power to censor media content in Australia. Without actual data regarding current community standards with respect to non-violent sexually explicit films, they have merely applied their own puritan and subjective views when classifying these films.

The situation leaves AdultShop.com very disillusioned and disenfranchised with the current classification system and the lack of willingness by the OFLC to properly determine and reflect the views and community standards of Australian adults. In Australia, adults have the democratic right to see, read and hear what they wish without censorship. The role of the CB and CRB is to classify, not censor!

ADDITIONAL RELATED RESEARCH

Since 1992 two studies are known to have been conducted independently of the OFLC with respect to Australian attitudes regarding the availability or legal sale of sexually explicit films in Australia. These are summarised below:

1) 1996: A nationwide AGB McNair poll was conducted in late 1996 for the EROS Foundation titled Community Research on Film and Video Classification. The poll involved 968 respondents and concluded that 83% of Australians believed that non-violent sexually explicit videos should be legally available for sale to adults throughout Australia.

2) April 1999: A nation-wide survey of adults undertaken by Roy Morgan Research in April 1999 commissioned by the Eros Foundation, found that 73.2% of people believed non-violent erotic videos should be made available to adults. From this it is reasonable to deduce that the overwhelming majority of Australian adults did not find non-violent erotic videos offensive.

In this Roy Morgan survey, it was also revealed that 66% of people who did not watch sexually explicit films still agreed they should be available for legal sale to adults who did wish to view them.

2006 ACNIELSEN COMMUNITY STANDARD SURVEY AND EXPERT REPORTS

In the absence of any existing data outlining the views of Australian adults specifically regarding the classification of non-violent sexually explicit films, AdultShop.com commissioned ACNielsen to conduct a national survey to determine such community standards. In September 2006, ACNielsen conducted an independent survey in which 1499 Australian adults representative of the national population*, were asked their views concerning both the availability and offensiveness of non violent sexually explicit films.

The survey revealed that only a minority 30% of Australian adults claimed to be offended by non violent sexually explicit films. It also found that, 76% of Australian adults believed such films should be available to people over the age of 18 who wished to view or purchase them. This demonstrates that the majority of Australian adults are not offended by non violent sexually explicit films and that a majority of Australian adults believe adults should be able to view and purchase such films throughout Australia.

It is AdultShop.com’s firm belief that if the OFLC were to conduct similar unprompted research with the same number and cross section of participants, similar results would be revealed.

When first appealing the X18+ classification of Viva Erotica to the CRB in November 2006, AdultShop.com submitted the ACNielsen survey results to demonstrate current community standards with respect to non violent sexually explicit films. It also submitted the findings of three expert witnesses summarised below:

1) Associate Professor Catherine Lumby of the University of Sydney, summarised that “The evidence is overwhelming that having regard to community standards of morality, decency and propriety, the majority of Australian adults are not offended by films that primarily involve various forms of actual sexual activity, including close-ups, between consenting adults and in which there is no depiction of coercion or violence.”

2) Associate Professor Alan McKee of Queensland University of Technology, summarised “…consumers of sexually explicit materials in Australia can fairly be described, using legal terminology, as ‘reasonable adults.’ Therefore, ‘a film primarily involving various forms of actual sexual activity, including closeups, between consenting adults but with no coercion or violence’ would be unlikely to cause offence to this sizeable group of reasonable adults in the Australian population.”

3) Katherine Albury, Lecturer in Gender and Cultural Studies and an Honorary Research Associate in, Media and Communications at the University of Sydney, summarised “Having considered the relevant research, I conclude that, taking current community standards into account, the reasonable adult is not offended by sexually explicit material. This view acknowledges that there are those within the diversity of the Australian community who oppose the production and distribution of sexually explicit material under any circumstances.”

When reviewing the CB’s X18+ classification of Viva Erotica, the CRB stated in its reasons for maintaining the X18+ classification of the film, that it “did not consider that the expert and survey evidence… lent significant support to the applicant’s arguments that reasonable adults were not offended by films containing explicit sex between consenting adults.” Therefore, with reference to no other quantitative or qualitative research or survey data outlining Australian adults’ views regarding sexually explicit films, the CRB upheld the X18+ classification. Once again, even in the process of reviewing a classification decision, the seven member CRB deemed their own personal and subjective views to be representative of Australian community standards. How can the views of a seven member board ever be representative of the majority of Australian adults? Quite incredulous!

The ACNielsen survey results and three expert reports were submitted to the Federal Court of NSW in September 2007 as evidence in the judicial review of the CRB’s X18+ classification of Viva Erotica. The case was dismissed by Judge Jacobson. Among his reasons for dismissing the case, Judge Jacobson stated that there was “no error… in the way in which the Review Board dealt with the expert evidence or survey evidence.” Jacobson went on to add that “The Review Board considered the evidence but found it unhelpful.”

The CRB said the ACNielsen survey results and expert witness reports were unhelpful because participants were not shown the Viva Erotica film itself. The CRB did not consider the ACNielsen research report or independent expert reports referring to sexually explicit films in general, to be applicable in the review of the classification given to Viva Erotica.

In Judge Jacobson’s reasons for dismissing the judicial review, he further described the personal views of the seven CRB members as being considered to be representative of the Australian adult population’s views and thus their personal views constitute current community standards. This is preposterous!

THE SITUATION INTERNATIONALLY

Australia remains the only westernised nation in the world where it is illegal to sell nonviolent sexually explicit films to adults from adults-only retail premises.

Non-violent sexually explicit films just like those currently classified X18+ in Australia, are sold legally from licensed adult premises throughout the UK, US and New Zealand.

WHAT AUSTRALIA NEEDS

AdultShop.com’s key argument is that, as supported by ACNielsen survey results, if current community standards regarding non-violent sexually explicit films were to be applied by the OFLC and its CB and CRB when making classification decisions, then films such as Viva Erotica would be classified R18+ because they do not offend the majority of Australian adults. This would lead to such films being available for legal sale to adults in the states of Australia – a situation that would be supported by 76% of Australian adults according to the 2006 ACNielsen survey results and various other national surveys conducted in Australia since 1992.

What we need is for the OFLC to conduct national representative research to effectively and accurately determine current community standards with respect to non-violent sexually explicit films. This research must be conducted regularly. Classification decisions must then be made on the basis of those established community standards as the Act requires the OFLC to do.

For more information or to arrange an interview with Malcolm Day, AdultShop.com Managing Director please contact:
Leigh Manuel, PR Manager, AdultShop.com Email: leigh@adultshop.com Phone: (08) 9227 6777 or 0411 575 571

* In September 2006, a minimum of 1050 participants in a survey was required to represent the Australian population. The 1499 ACNielsen survey respondents comprised 49% male and 51% female respondents. Respondents resided in city and rural areas of each state and territory of Australia. They fell into the age brackets of 18-24, 25-39, 40-54 or 55+ years of age. The group consisted of people married/partnered with child, married/partnered with no children, single with child, single with no children, widowed/divorced/separated with child or widowed/divorced/separated with no children. Respondents were employed full time, part time, casually, performing home duties, students or unemployed. Those employed had upper blue collar, lower blue collar, upper white collar or lower white collar occupations. Respondents’ annual incomes were less than $10,000, $10,000 - $19,999, $20,000 - $29,999, $30,000 - $39,999, $40,000 - $59,999, $60,000 - $79,999 or $80,000 plus. The sample was considered representative of the majority of Australian adults.

 

 

May 20, 2008, Adultshop.com appeal

Adultshop Appeals
EROS NEWS
eros.org.au
Written by Fiona Patten
Tuesday, 20 May 2008

Adultshop.com has commenced its appeal to the Full Bench of the Federal Court over the dismissal of its application for judicial review of the X rating given to its film Viva Erotica in Nov 2006.

This case is arguably the most important brought before the courts in Australia by an adult industry trader since the Capital Duplicators case in the High Court in the early 1990s by John Lark and others. If successful, it would change the adult retail landscape overnight and force legislators to seriously rethink the whole adult film categories. It could bring into question previous convictions and current charges for selling X rated films in the states.

It has been argued that the Federal government could theoretically just amend the Classification Code to delete the 'offensive to an adult' clause. However this would be seen by the electorate to be a cynical reaction to a major flaw in the relationship between the Classification Guidelines and the Classification Code. Hopefully they would accept the fact that the courts had identified a serious problem with the way in which governments gather and synthesise public opinion on adult films and the way in which they use that to form legislation.

 

 

May 21, 2008, Adultshop.com appeal dismissed

Adultshop.Com Ltd v Members of the Classification Review Board [2008]
FCAFC 79
FEDERAL COURT OF AUSTRALIA
May 21, 2008

 

 

May 22, 2008, Adultshop.com reaction

AdultShop Federal Court Appeal Dismissed
Adultshop.com
Media Release: Thursday, 22 May 2008

AdultShop.com Limited’s appeal of the judgement on 29 November 2007 of Federal Court Justice Jacobson upholding a decision by the Office of Film and Literature Classification’s Review Board to give the non-violent sexually explicit film Viva Erotica (a montage of sex scenes created specifically as a test case for Australian censorship laws) an X18+ rating, was heard before Justices Sundberg, Emmett and Siopis at the Perth Registry of the Federal Court on Wednesday, 14 May 2008.

This morning, the Court’s decision was handed down and the appeal was dismissed.

BACKGROUND

On 6 September 2007, AdultShop.com presented a case for judicial review of the Review Board’s decision to the Federal Court of New South Wales based upon its contention that the Review Board improperly exercised the classification powers conferred upon it by failing to correctly apply the law requiring current community standards to be taken into consideration when classifying films.

AdultShop.com asserts that the Review Board relied upon incorrect findings of fact by failing to apply those current community standards when it determined that the film Viva Erotica contained actual sex likely to cause offence to the reasonable adult and thus classified the film X18+.

In support of its principle argument, AdultShop.com submitted, as evidence in its appeal to the Review Board and subsequent court action, three independent expert reports each concluding that the majority of Australian adults would not be offended by non-violent sexually explicit films, thus justifying AdultShop.com’s assertion that Viva Erotica should be classified R18+ in accordance with the National Classification Code. In addition, AdultShop.com relied upon a national survey carried out in September 2006 by ACNielsen. The results of this survey revealed only 30% of Australian adults considered non-violent sexually explicit films to be offensive (ie the overwhelming majority of Australian adults were not offended by such films).

However, despite the substantive evidence presented by AdultShop.com, before Judge Jacobson, the case was dismissed in favour of the Review Board. Accordingly, Viva Erotica remained classified X18+.

IMPLICATIONS OF THE APPEAL DISMISSAL

It is a sad day for democracy given the broader implication of the decision to dismiss AdultShop.com’s appeal against the X18+ classification of Viva Erotica. The three Judges have effectively said that by virtue of being authorised by the Attorneys General, the Classification Guidelines are considered representative of current community standards. How can the Classification Guidelines be considered representative of current community standards when no research has been undertaken by the Attorneys General, nor commissioned by the OFLC, to determine current community standards with respect to sexually explicit films?

Since 1992, research has been commissioned to determine the current community standards with respect to all classifiable elements in films, except actual sex. Rather than consult with Australian adults on their views regarding sexually explicit films, Attorneys General in the past have simply adopted their personal, conservative and subjective views as the community standard.

It appears contrary to the spirit of the National Classification Scheme that Attorneys General can decide on current community standards with respect to sexually explicit films in the absence of research, thus dictating what films Australian adults can watch in the privacy of their own homes.

Surely the National Classification Scheme was never intended to render Attorneys General judge and jury when developing Guidelines to assist the OFLC’s Boards in making classification decisions? It’s time for the OFLC to commission comprehensive research to understand the views of Australian adults with respect to sexually explicit films and for Attorneys General to update the Classification Guidelines to reflect those standards.

 

 

May 29, 2008, Adultshop.com consider options

Classification Challenge Non Violent
Adultshop.com
Media Release: Thursday, 29 May 2008
Written by Leigh Manuel

AdultShop.com Limited was extremely disappointed to see the misleading comments of Angela Conway, Australian Family Association spokeswoman, quoted in recent media articles reporting on the dismissal of AdultShop.com’s appeal to the Federal Court against the X18+ classification given to the adult film Viva Erotica.

Ms Conway obviously misunderstood the grounds of AdultShop.com’s legal challenge when she said “we would have seen eventually films coming out into the R category that would have mixed sexual content with violence” if AdultShop.com’s appeal to the Federal Court had been successful.

Viva Erotica is a montage of non-violent sex scenes created specifically as a test case for Australian censorship laws.

AdultShop.com presented its case for judicial review of the Review Board’s decision based upon its contention that the Review Board improperly exercised the classification powers conferred upon it by failing to correctly apply the law requiring current community standards to be taken into consideration when classifying films.

AdultShop.com asserted that the Review Board relied upon incorrect findings of fact by failing to apply those current community standards when it determined that the film Viva Erotica contained actual sex likely to cause offence to the reasonable adult and thus classified the film X18+.

In support of its principle argument, AdultShop.com submitted, as evidence in its appeal to the Review Board and subsequent court action, three independent expert reports each concluding that the majority of Australian adults would not be offended by non-violent sexually explicit films, thus justifying AdultShop.com’s assertion that Viva Erotica should be classified R18+ in accordance with the National Classification Code.

In addition, AdultShop.com relied upon a national survey carried out in September 2006 by ACNielsen, the results of which revealed only 30% of Australian adults considered non-violent sexually explicit films to be offensive.

AdultShop.com’s Managing Director, Malcolm Day, points out “critics of AdultShop.com’s legal challenge consistently refer to sexually explicit films currently classified X18+, as containing material that is illegal in Australia, and accuse AdultShop.com of advocating the sale of such films. This is absolutely not the case!,”

“To suggest that it is AdultShop.com’s objective for content, such as violent erotica, to be freely available in local video shops and screened in cinemas, is absurd and totally misrepresents the purpose of the legal challenge.”

Mr Day added:

• AdultShop.com seeks only reclassification of films presently given an X18+ classification.

• The X18+ classification is restricted to explicit sexual activity between consenting adults.

• The X18+ classification does not include sexual activity that has violence, sexual violence, sexualised violence, coercion, sexually assaultive language, or fetishes or depictions which purposefully demean anyone involved in that activity for the enjoyment of others.

• AdultShop.com maintains that films presently classified X18+ do not offend the reasonable adult and consequently such films should be classified R18+ and made legal for sale in all states of Australia, not just the NT and Canberra as is the case today.

• Should Viva Erotica, or other films like it, be classified R18+, AdultShop.com would support a restriction on the sale of such films from licensed adult premises and to adults over the age of 18.

AdultShop.com is considering an appeal to the High Court.

 

 

2008: Adultshop.com's Annual Report

Adultshop.com
2008 Annual Report

Chairman's Report
A significant amount of the Company’s losses in 2007/8 are directly attributable to legal costs paid in the challenge to the laws restricting the sale of X-rated DVDs in the states of Australia, several actions pursuing money claims and the funding of prosecutions of DVD pirates. These costs were considerable and necessary, but as those cases are all but concluded, similar costs will not be incurred in the year ahead

Managing Director’s Report
The Company’s continued inability to sell explicit adult films (currently classified X18+) in the states of Australia continues to hamper growth. To this end the Company challenged the OFLC and Federal Attorney General on the basis that the Company believed that most explicit adult films that are currently classified X18+ in Australia by the Classification Board (and previously the Office of Film and Literature Classification), should in fact be classified R18+. Had the Company won the legal challenge, it would have meant that such films could be legally sold from licensed adult premises in the states of Australia. Unfortunately the Company lost this legal challenge and the subsequent appeal.

For the Company to significantly grow and prosper we need law reforms and policing of censorship laws in Australia. We need State and Federal police to stop the sale and supply of unclassified and pirated adult films throughout the country. And we need to be able to sell Classification Board approved X18+ adult films in the states of Australia.

 

 

October 10, 2010: Adultshop.com's Annual Report

Adultshop.com
2010 Annual Report

Managing Director’s Report
For many years now, the Company has continued to lobby federal and local governments in relation to law reform pertaining to the sale of sexually explicit films in Australia (classified X18+ by the Office of Film & Literature Classification – “the OFLC”). Unfortunately this has been to no avail. Had government changed the laws in relation to the sale of X18+ films throughout the States of Australia, then the Company’s wholesale business, Calvista, would have been able to grow its DVD sales substantially.

Similarly, for many years the Company has been lobbying federal and local governments, the Australian Customs and Border Protection Service, and the Australian Federal Police to stop the illegal importation by wholesalers of unclassified adult DVDs into Australia. Again, this has been to no avail as the sale of unclassified DVDs, which in many instances would be classified by the OFLC as Refused Classification (RC) due to the inclusion of unacceptable content, continues unabated throughout Australia. Such unclassified DVDs are openly sold in most adult stores and in many convenience stores, service stations and newsagents throughout Australia representing a growing problem. We estimate that the value of unclassified adult DVDs being imported into Australia by wholesalers, to sell and distribute to adult stores and other outlets in Australia for on-sale to consumers, is in excess of $200M per annum. As Calvista sells only classified adult DVDs, the sale of unclassified adult DVDs throughout Australia has always been, and continues to be, a major impediment to the growth of Calvista.

Piracy of adult films in Australia is a multi million dollar business and has been out of control for many years.

Organised crime has infiltrated the adult film piracy and distribution business. The Company continues to fund the Adult Industry Copyright Organisation (AICO) in an effort to stamp out piracy of the studio’s films for which Calvista owns the copyright. Whilst AICO has had enormous success, piracy is still a problem and AICO needs to remain vigilant in pursuit of the criminals behind these piracy operations and also the shops who sell pirated adult films.

In summary; the continued importation of unclassified adult films, the continued piracy of adult films and the unwillingness of federal and local governments to change the laws in relation to the sale of adult films throughout the States of Australia, have all impeded the growth of DVD sales by Calvista.

Malcolm Day
Managing Director

 

 

2010 to 2015: Adultshop.com, Calvista, and the death of the X-rating

Following their loss of their rating battle, the company sold the Adultshop.com retail shops and online store and renamed itself Delecta Limited. The Calvista arm was retained. Censorship laws, a battle with the Australian Customs Service, and the decline in DVD sales all contributed to the company exiting the Adult DVD market in November 2013.

Calvista's final Refused Classification title was Manuel Ferrara's EVIL ANAL 18 (2013), which was banned on October 21, 2013.

Their final X18+ (Explicit sex) was Digital Sin's TABU TALES: FAMILY BUSINESS (2013), rated on November 29, 2013.

Since purchasing AXIS, then the countries largest DVD mail order business, in August 2000, Adultshop.com/Calvista had been responsible for more X18+ and RC ratings than any other company.

With their exit from the business, the X-rating, introduced in February 1984, effectively died. Since then, only a handful of titles have been rated X18+ for distributors such as Saints and Sinners Promotions and Popcorn Promotions.

From November 2013, the vast majority of X-ratings are received from enforcement agencies for product raided from adult stores. The Australian Communications and Media Authority (ACMA) and the Office of the Children’s Esafety Commissioner are also responsible for a large number of X18+.

 

 

Delecta Limited
Annual Financial Report
For the year ended 30 June 2011
Managing Director’s Report
Calvista Australia Pty Ltd (Calvista), the Company’s only significant remaining operating entity, continues to trade well with a net income of $820,000 last financial year. During the year Calvista made further inroads into main stream (non adult store) markets by selling products to pharmacy chains. We see main stream as the largest growth opportunity available presently to Calvista, with future growth in main stream sales expected to offset the declining adult DVD sales.

Director’s Report

Group Overview
Adultshop.com Retail Shops and Online Retail Store
With effect from 1 November 2010, the Company disposed of its interest in the Adultshop.com retail shops and online store.
The results of these operations for the period up until the effective date of sale have been shown separately as discontinued
operations.

Wholesale
In September 2000, the Company entered the adult products wholesale market with the acquisition of Calvista Australia
Pty Ltd. Calvista, which has been in operation for over 20 years, operates from its head office in Melbourne, with additional
warehouses in Sydney and Canberra. The Canberra warehouse also operates a factory retail outlet.

The Company holds exclusive Australian rights to acquire the copyright to titles from a number of leading production studios
in the adult industry which are classified and reproduced for sale in the Australian market.

It is the largest wholesaler of adult products in Australia with in excess of 50% of the legal market.

The acquisition in May 2005 of Video Wholesalers in New Zealand included a wholesale operation which the group continues
to operate under the name Calvista New Zealand Limited.

Mail Order
On 1 August 2000, the Company acquired 100% of Canberra based business, Axis, Australia’s largest adult DVD, video and
erotic product mail order business. Sales are secured via the distribution to members of regular mail order catalogues and
through its website at www.axisshop.com.

Retail
The continuing retail operations (after the reclassification of the Adultshop.com retail store operations as discontinued
operations), are those of the company’s wholly owned subsidiary, Calvista Australia Pty Ltd and consist of the mail order,
factory outlet and DVD rental operations.

The 30% decrease in sales is attributed to the continuing decline in the mail order business which is expected to continue.
In spite of this, the retail operations recorded only a 3% decrease in profitability.

 

 

Delecta Limited
Annual Financial Report
For the year ended 30 June 2012

Group Overview
Wholesale
In September 2000, the Company entered the adult products wholesale market with the acquisition of Calvista Australia Pty Ltd. Calvista, which has been in operation for over 20 years, operates from its head office in Melbourne, with a warehouse in Canberra and showroom in Sydney.

The Company holds exclusive Australian rights to acquire the copyright to titles from a number of leading production studios in the adult industry which are classified and reproduced for sale in the Australian market.

It is the largest wholesaler of adult products in Australia with in excess of 50% of the legal market.

The acquisition in May 2005 of Video Wholesalers in New Zealand included a wholesale operation which the group continues to operate under the name Calvista New Zealand Limited.

Retail
On 1 August 2000, the Company acquired 100% of Canberra based business, Axis, Australia's largest adult DVD, video and erotic product mail order business. Sales are secured via the distribution to members of regular mail order catalogues and through its website at
www.axisshop.com.

The Company also operates also operates a factory retail outlet from its Canberra warehouse.

Retail
As a result of the continuing decline in the mail order business, the Group’s retail revenues continued to decrease with revenue down from $899,000 to $718,000 and profit down from $340,000 to $232,000 for the year.

 

 

Delecta Limited
Annual Financial Report
For the year ended 30 June 2013

The Company’s core operations – Calvista Australia Pty Ltd and Calvista New Zealand Limited – being Australia’s largest wholesaler of goods to Australia and New Zealand’s adult retailers and “e-tailers” also faced demanding conditions in 2013, including:

Total retail turnover in Australia increased by just 2.5% (source: ABS), whilst retail turnover in the Company’s industry category – “Other Retailing” only maintained parity with the previous year;

An upgrade in operating systems presented customer fulfilment and service issues – the majority of which have now been resolved. • Product innovation did not live up to 2012 with sales of second generation products failing to match the first releases;

 The entry of quality products distributed under exclusive rights by competitors undermined sales in the same product categories;

A further decline in media sales as online content continues to erode the viability of this sector;

An oppressive stance taken against the Company by Australian Customs with respect to the importation of media titles master’s to be edited for the purpose of submission to the Office of Film & Literature Classification to ensure compliance with Australian classification legislation resulted in significant legal costs and managerial distraction; and

A falling AUD$ increased inventory acquisition and holding costs given the majority of product is purchased in US$.

Managing Director’s Report
The 2012/2013 year was a year in which the Company primarily focused on the core business of wholesaling adult products through its wholly owned subsidiaries, Calvista Australia Pty Ltd and Calvista New Zealand Ltd (Calvista).

Calvista’s wholesale businesses traded fairly in a difficult retail environment in both Australia, where it is the largest wholesaler of adult products, and New Zealand. The financial performance has diminished and is reflected in the wholesale division’s net profit of $279,000 for the financial year compared to $1,036,000 last financial year. Adult DVD sales, by volume and price, have continued to fall in Australia and New Zealand. Whilst Calvista’s wholesale sales for the financial year have been in line with those of the previous year the gross profit margin has been eroded particularly with the falling price of adult DVDs.

The Company recognizes this is an ongoing problem and is attempting to minimize costs where possible within the DVD division to counter the fall in gross profit margin attributed to DVDs. Calvista has replaced falling adult DVD sales with sales of other adult products including lingerie. With the continued growth of online sales Calvista has been able to further increase its sales to etailers. The Company views the sale of lingerie as a growth opportunity for Calvista.

Wholesale
The ongoing worldwide decline in the DVD market, increased competition and a continuingly difficult retail environment resulted in a small 0.6% decrease in wholesales revenues. Increased investment in product range and an increase in sales to online businesses were unable to completely offset these factors. The increased competition and the decrease in high margin media sales also negatively impacted profitability resulting in a decrease in the segment’s profit for year from $1,036,000 to $279,000.

Retail
The decrease in the Group’s retail revenue from $718,000 to $533,000 is primarily due to the continuing decline in the group’s mail order business where revenues decreased by 26% over the previous year. This, combined with a 15% decrease in the factory outlet revenues, resulted in a 12% decrease in retail net profit for the year.

 

 

Delecta Limited
Annual Financial Report
For the year ended 30 June 2014

Chairman’s Report
Calvista Australia Pty Ltd, Australia’s largest wholesaler of goods to Australia and New Zealand’s adult retailers and “e-tailers” continued to operate within a difficult retail climate, despite Australian Bureau of Statistics showing total retail industry turnover increasing by 4.6% for the year, and retail turnover in the Company’s industry category, being Other Retail, climbing 3.3% annually.

Specific issues impacting the performance of Calvista included the ongoing decline of Media (DVD) sales paired with the cost base to support this sales category, aggressive and unsustainable price discounting by competitors in an attempt to win market share and negative customer sentiment resulting from the implementation of the Calvista’s IT platform.

Managing Director’s Report
The 2013/2014 year was a year in which the Company focused on the core business of wholesaling adult products through its wholly owned subsidiaries, Calvista Australia Pty Ltd and Calvista New Zealand Ltd (Calvista). Additionally the Company explored a number of investment opportunities.

During the year the board made the decision to close down Calvista’s ailing adult DVD division. Whilst the decline in the profitability of the DVD division has continued for a number of years, this year the decline was at a faster rate and this ultimately forced the closure of the division. As a result of the division’s closure a number of staff working in both the Melbourne head-office and the Canberra warehouse were made redundant.

The retail of adult products in Australia and New Zealand continues to experience challenging and difficult times. As a result this has adversely impacted upon the sales and profitability of Calvista. The financial performance has diminished and is reflected in the wholesale division’s net loss of $632,000 for the financial year compared to a profit of $279,000 last financial year.

In August this year the Company appointed Roger Sheldon-Collins as the General Manager of Calvista, replacing Michael Bassett. Roger was previously National Sales Manager of Calvista, a position he had held for the prior 6 months. The board is enthused about the appointment of Roger and looks forward to assisting him in steering the business in a new direction. Without the sales of adult DVD’s Calvista will now focus on expanding the sex toy, lingerie and other adult products business.

 

 

Delecta Limited
Annual Financial Report
For the year ended 30 June 2015

Managing Director’s Report
The 2014/2015 year was a year in which the Company focused on restructuring the core business of wholesaling adult products through its wholly owned subsidiaries, Calvista Australia Pty Ltd and Calvista New Zealand Ltd (Calvista). Additionally the Company spent considerable resources on the Canadian River Field Development Project.

Whilst Calvista closed down its under-performing adult DVD business in the previous year it's taken most of this year to sell the large stockholding of DVDs located at the Canberra warehouse. Calvista has now closed this warehouse and is trying to sub-lease the premises.

Wholesale revenues for Calvista reduced by 6% to $16,946,000 this financial year resulting in a net loss of $171,000 for the division compared to a net loss of $632,000 last financial year. The fall in wholesale revenue was primarily due to the closure of the DVD business, the loss of exclusivity of one of the division's major suppliers, the decision by another major supplier to do their own distribution in Australia and New Zealand and the falling Australian dollar.


 

 

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