Viva Erotica

Prod Vivid / USA

Adultshop.com had this Vivid Compilation rated X18+ (Explicit Sex) on September 29th 2006. It was to become a test case against censorship in Australia.

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Adultshop.com
MEDIA RELEASE: 12th October 2006

AUSTRALIANS NOT PRUDISH TOWARDS EXPLICIT EROTIC FILMS*: RESEARCH AFFIRMS

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.

***

The Managing Director of Adultshop.com had this to say in his report to shareholders contained in the company's 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."

***

He clarified his position in this letter to shareholders.

http://investor.adultshop.com
AdultShop.com Limited
Annual Report 2006
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 l AdultShop.com Limited

***

Adultshop.com made good on their promise to try and overturn the censorship rules, when in October 2006 they challenged the X18+ (Explicit Sex) rating awarded to VIVA EROTICA.

Adultshop.com
Media Release: 27 October 2006

Community standards not reflected in the classification of Viva Erotica

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.

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

***

Adultshop.com
MEDIA RELEASE EMBARGOED: 3 November 2006

CLASSIFICATION CHALLENGE NOW A TEST CASE FOR CENSORSHIP

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.

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

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Australian Government
Classification Review Board
15 November 2006
MEDIA RELEASE

Review announced for the film Viva Erotica

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.

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Push to permit real sex in R films. SMH 20.11.06

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

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Adultshop.com
MEDIA RELEASE EMBARGOED: 22 November 2006

VIVA EROTICA CLASSIFICATION CHALLENGE TODAY

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.

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

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Australian Government
Classification Review Boars
7 December 2006
MEDIA RELEASE

Review Board determines Viva Erotica X 18+

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.

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adultshop.com
MEDIA RELEASE: 07 December 2006

VIVA EROTICA APPEAL WILL GO TO FEDERAL COURT OF AUSTRALIA

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.

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

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Ross Fitzgerald: We're a nation of lovers, not fighters. The Australian 12.12.06

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.

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censorship.adultshop.com
Friday, 5 January 2007
Censorship News
Classification Review Board disregards reserarch in their decision

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+ classifciation.

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'

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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”.

***

The Eros Association
Media Release 7.1.07

Censorship Ratings Scheme Hangs on Saddam

The Eros Association is considering a move to classify the controversial three minute film showing the hanging of Saddam Hussein, in an effort to expose the hypocrisy and immorality of Australia’s National Classification Code and the state Classification Enforcement Acts.

Under the current system, the film depicting the hanging of the former Iraqi dictator, (freely available on the internet), would receive an R rating if submitted for classification and would then be available to adults in all states of Australia, through family outlets like suburban video libraries and petrol stations.

In stark contrast to this scenario, a film which showed no violence or non-consent of any kind but only actual scenes of adult sexuality was refused an R rating in a controversial decision by the Classification Review Board (CRB) last month. The CRB’s decisions and rationale for classifying the film, Viva Erotica, have just been released (http://www.oflc.gov.au/special.html?n=262&p=66) and it has stated that the film ‘would cause offence to a reasonable adult’ and therefore must carry the most restrictive X rating at a federal level and a ban in every state. The film’s distributor, Adultshop.com. - a listed company on the Australian Stock Exchange – has vowed to take the issue into the Federal Court (http://censorship.adultshop.com/Default.aspx).

Eros CEO, Fiona Patten said that the 1995 UK film called Executions which showed a series of real-life, state-sponsored executions, almost identical to the Saddam film, had been given an R Rating by the Classification Board which had set a precedent for these types of films. “The CRB is basically saying to the Australian public that the film of Saddam’s execution cannot be said to ‘cause offence to a reasonable adult’ while Viva Erotica can. This determination is so far from the reality of what Australian public opinion is on these issues, that the federal Attorney General needs to urgently intervene and conduct an enquiry”, she said.

While not wanting to ban documentaries on any subject, Ms Patten said that films depicting real murders or executions and real or overly-intense simulated acts of violence, should be the most restricted films under the current censorship scheme. Currently this is not the case because films which show nonviolent and actual sex acts between consenting adults are the most restricted and can draw fines and jail sentences for sale in all states.

“State Attorney’s General need to be aware of the fact that they are supporting state regulation which could allow the Saddam film to be sold from convenience stores while at the same time sending an adult shop owner to jail for selling Viva Erotica through an adults-only premises”, she said. “This is not a popular or a logical approach to censorship in Australia and defies every opinion poll ever carried out on the issue.”

She also cautioned Federal Communications Minister, Helen Coonan, about where she will draw the line on mobile phone content later this month. “At present the Minister is indicating that she will allow adults to download the hanging of Saddam Hussein and the film Executions on a mobile phone with a PIN but not allow other adults to download Viva Erotica with the same PIN. If she allows this regime to go ahead she will be telling the Australian public to effectively ‘make war not love’ and will reinforce the notion within Australian youth that violence is somehow more acceptable or less offensive than consenting sexuality”.

Ms Patten said the issue was not about legalising pornography but was about governments setting moral agendas that were truthful and representative. “We all engage in sex acts throughout our adult lives”, she said. “But very few of us will be involved in killing or seriously assaulting someone. Our censorship ratings should follow these sort of precepts and in fact should mirror the criminal codes rather than the outmoded moral codes of religious groups or the dictates of political extremists”.

She called on the State and Commonwealth Attorney’s General to change the Classification Code to reflect killing and violence as the most restricted depictions with non violent erotica and sex being less restricted.

Fiona Patten: 0413 734 613

PO Box 69 Deakin West ACT 2600
Ph 02 6285 2477
Fax 02 6282 1499
www.eros.org.au

***

Classification Review Board
Annual Report 2006-2007

Complaints
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+.

***

Hanging is worse than porn: lobby The Age 08.01.07

Freely available on the internet, the Saddam film, which depicts hooded men hanging the former Iraqi dictator, likely would be rated R 18+ if sold commercially here, said Robbie Swan, Eros' chief executive officer.

He said the Classification Review Board viewed "consenting sexuality" more harmful than depictions of real-life murders and executions.

"In Victoria, you can go to jail for selling sexually explicit and consensual films, but you can sell a film that shows someone being murdered in a convenience store," he said.

It was illegal to sell X-rated films in Victoria, but not to possess or buy them from Canberra, where sale was legal. Mr Swan said he did not think the film of Saddam's hanging should be censored, but called for "a more even-handed approach" to violence and sex.

......Mr Swan said the classification system was out of touch with prevailing attitudes towards sex. In the past, Victorians probably thought depiction of explicit sex was worse than murder.

But young people now were more free-thinking.

***

Adultshop.com
MEDIA RELEASE
EMBARGOED UNTIL: 2 February 2007
FEDERAL COURT APPEAL OF X CLASSIFICATION

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.

For further information contact:

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

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.

***

Porn at X-roads. The Australian 28.02.07

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."

***

Be adult about porn, pleads industry. The Australian 27.02.07

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.

***

Readers Comments: Blue movies going for green light The Australian 28.02.07

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?

***

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

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

***

The case opened on March 1st 2007.

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 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 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. The Australian 01.03.07

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.

Maureen Shelley, the Convenor of the Classification Review Board replied:

Classification Review Board Wednesday, March 07, 2007 Letters

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 01.03.07

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?

***

The following extracts from the 2007 Annual Report of AdultShop.com illustrate how much of a problem the X18+ ban is 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.

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.

***

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

Sex doesn't always sell for erotica company. Herald-Sun 27.11.07

"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 havin