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Committee Secretary Senate Standing Committees on Environment and Communications PO Box 6100, Parliament House Canberra ACT 2600 [email protected] 10 March 2016

Dear Committee,

Inquiry into harm being done to Australian children through access to pornography on the Internet

I am a final year PhD Candidate studying the regulation of pornography in Australia at the University of New South Wales. My doctoral research is supervised by Associate Professor Kath Albury in the School of Arts and Media, co-supervised by Dr Daniel Joyce in UNSW Law. I write to you in my individual capacity, not representative of my institution, in regards to the current inquiry.

I recommend the Committee re-visit the recommendations of the Australian Law Reform Commission 2012 report on content regulation. As classification of online content is impossible in an age of convergent media, the ALRC recommend hybrid models of co-regulation whereby independent overseers can enforce industry codes. The Australian Law Reform Commission recommends that classification of adult content is unnecessary, providing reasonable steps are taken to restrict access.

Voluntary filters already exist, and adult producers are already signposting their material. A mandatory Internet filter is an unworkable response that will block important health promotion, harm reduction and educative materials. Access requirements should be consistent with the age of consent to sexual activity, and age verification should not involve consumers uploading identification that risks their privacy.

I believe the issue of free online access to pornography is in substance an issue about piracy and monopolisation that is not unique to pornography. The decriminalisation of pornography in Australia would assist in reducing stigma, allowing performers to speak in dialogue with young people to deconstruct the production process.

I urge the committee to re-consider the assumptions at the basis of this inquiry. Causal links between pornography and harm are highly contested. We cannot say in 2016 that anal sex is inherently degrading, consensual sex on film is inherently objectifying, or that spanking is inherently violent. Pornography is not a monolithic category, and precise and careful wording is essential to ensure law and policy have the appropriate and intended effects and do not capture unintended material.

In addition, the Committee should bear in mind that young people have a human right to appropriate, relevant, targeted sex education and information, including visual material. Pleasure-based education and sexual ethics can act as a violence prevention and cyber-safety strategy. Young people are critical media consumers and engage with pornography for a variety of reasons. Any reforms should be driven and informed by young people’s experiences and needs.

Please do not hesitate to email me on if you have any further questions.

Yours sincerely,

Ms Zahra Zsuzsanna Stardust BA (History), LLB (Hons), MA (Gender/Cultural Studies), PhD Candidate (Arts/Media)

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1. Examining the focus of the Inquiry: Defining harm in sexually explicit media

Terms of reference do not reflect evidence base

The title and terms of reference of this Inquiry rely on underlying fixed assumptions about what pornography is and what it does. As it is currently framed, the Inquiry assumes that sexually explicit media is inherently harmful and that this alleged harm is actively ‘done to’ viewers, which treats pornography as a monolithic genre, young people as passive victims endangered by media, and does not reflect the diversity of explicit media and the variety of ways in which young people interact with, use and produce it.

More fruitful questions for this Inquiry might have been:

 What is the quality and consistency of sex education young people are receiving in Australian schools?  How do young people use, learn from and critically engage with media?  What tools, skills, information and services do young people require to navigate risks and harms in the world, and develop healthy and respectful relationships?

The answer is that sex education is inconsistent and overwhelmingly risk-focused. Despite this, young people are critical media consumers, initiating discussions with each other about the politics, aesthetics and gendered aspects of all forms of media, including pornography. Government can support young people to navigate risks, de-code pornography, develop media literacy, and negotiate ethical, respectful relationships through providing pleasure-focused information, education, conceptual tools, resources and open dialogue.

‘Pornography’ is not a monolithic category and there is no singular aesthetic, process, product or audience. Precise and careful wording is essential to ensure law and policy have the appropriate and intended effects.

Pornography is not a monolithic category – its definition is contested, slippery and politicised. ‘Pornography’ is made up of mainstream, corporate, feminist, queer, ethical, alternative, amateur, independent, user-generated and post-porn content, that is screened online, on DVD, in international festivals, in feature films and in print.1 It is produced not only by companies, but by solo performer/producers, collaborative partnerships (including couples), independent producers, and as community projects. There is no single benchmark aesthetic, production value, process, product, distribution means or audience. We cannot speak of ‘pornography’ as if it is a single or unified entity or make sweeping assertions about what it is or what it does.

Changes to the production and distribution of pornography with the increasing availability and accessibility of technologies (some have described this as the ‘democratisation’ of porn), mean that there are fewer distinctions between ‘mainstream’ and ‘alternative’ pornographies, and that those terms are increasingly redundant and meaningless. Shifts towards ‘amateur’, ‘documentary’ and user- generated porn, as well as changes in labour practices thanks to feminist and sex worker interventions, mean that performers are increasingly directors of their scenes with increasing control over their representations. Although all pornography is performative in the sense that it is constructed for film, and can depict fantasy for the entertainment of the consumer, performers can also experience real

1 Biasin E, Maina G and Zecca F (eds), Porn After Porn: Contemporary Alternative Pornographies, Mimesis International, 2014; Tim Stüttgen (ed), Post/Porn/Politics: Queer Feminist Perspective on the Politics of Porn Performance and Sex Work as Culture Production, b books, Berlin, 2014; Anne Sabo, After Pornified: How Women are Transforming Pornography and Why it Really Matters, Zero Books, UJ, 2012; Taromino, Shimizum, Penley and Miller-Young (eds), The Feminist Porn Book, The Feminist Press, New York 2013.

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intimacies on set, whether the scene is between real-life partners, friends or professional colleagues. Binary distinctions between good/bad, real/fake, mainstream/alternative, and straight/gay porn are unhelpful with such a diverse and complex genre.

Sex workers have made important interventions into labour practices in pornography in Australia, demanding fair working conditions, adequate payment, control over their scenes, acts and representation, and often negotiating content shares or joint ownership of the final product, or specific conditions on how and where their scenes can be distributed.2

To ask the Committee to examine the effects of pornography upon young people is like asking the Committee to examine the effects of action films or romantic comedies in their entirety. We need to be careful and precise about definitions in policy and law-making, particularly when discussing access to and/or criminalisation of media content. Material that people use for arousal may contain no explicit images at all (footage of feet, for example), and other content that does contain explicit images may not be intended for arousal (photographs for medical training). Catch-all terminology or laws encompassing ‘pornography’ as an imagined category is too heavy handed and will inevitably be ineffective, inappropriate and unworkable.

Causal links between pornography and harm are highly contested, and research is characterised by personal anecdote and selective evidence. Criminalisation causes more harm than pornography.

Existing texts attesting to the harms of pornography have been demonstrated to be lacking methodological rigour. Research framed around normative assumptions that pornography is inherently harmful affects the definitions used, recruitment of participants, the questions asked and conclusions reached in studies of pornography. Academic reviews of key influential anti-pornography texts illustrate that these books rely substantially on personal anecdote, selective evidence, mass generalisations, journalistic writing and sloppy definitions, presenting the most ‘extreme’ examples as typical, and do not demonstrate best practice ethics in sex work research. 3 In their review of Gail Dines’ book Pornland: How Porn has Hijacked Our Sexuality, Amanda Kennedy and Cheryl Llewellyn write that Dines ‘gives us is ideology instead of evidence’4, and Professor of Sociology Ronald Weitzer writes that the account ‘stands in stark contrast to sound scholarly research’.5 A lack of information about how sources were collected, the sample size and representativeness, and the lumping together of ‘men’ and ‘women’ into broad categories means we cannot reach generalizable conclusions from such unreliable research.

Alleged causal links between viewing pornography and violent behaviour are highly contested. Controlled laboratory experiments of small convenience, rather than representative, samples cannot be translated to the real world, and broader comparisons of the availability of pornography with crime rates in specific jurisdictions do not take into account the multiplicity of other potential variables and

2 Zahra Stardust, ‘Performer-Centred Pornography as Sex Worker Rights: Developing Labour Standards in a Criminal Context’, Research for Sex Work, Issue 15: Resistance and Resilience, March 2016. 3 For literature on best practice sex work research see: Elena Jeffreys , ‘Sex Worker Driven Research Best Practice Ethics’, presented National Centre for HIV Social Research, UNSW, April 2010; Stephanie Wahab and Lacey Sloan, ‘Ethical Dilemmas in Sex Work Research’, in Research for Sex Work: HIV Prevention and Health Promotion in Prostitution, Issue 7, June 2004, 3-5. 4 Amanda Kennedy and Cheryl Llewellyn, ‘XXXtreme content: Why Pornland’s conclusions are hard to swallow’, Sexualities, April 2011 14: 257-259. 5 Ronald Weitzer, ‘Pornography’s Effects: The Need for Solid Evidence: A Review Essay of Everyday Pornography, edited by Karen Boyle (Routledge, 2010) and Pornland: How Porn has Hijacked Our Sexuality, by Gail Dines (Boston: Beacon, 2010)’, Violence Against Women, 17(5), 666 – 675.

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factors that contribute to crime.6 Dubious connections between pornography and harm have been used to justify increasing criminalisation and regressive legislation in the United Kingdom.7

Criminalisation of pornography poses obstacles to performers accessing workplace health and safety standards, service providers and labour organising, for fear of identification from law enforcement. Criminalisation feeds institutional discrimination from banks and landlords, and creates barriers to performers accessing justice. More harm is done by criminalisation than by pornography itself.8

Unpacking terminology: anal sex is not inherently degrading, consensual sex on film is not inherently offensive, spanking is not inherently violent, and women on film are not necessarily objectified.

An important task in deconstructing literature on pornography is to critically examine terms such as degradation, offensiveness and objectification and their use in both literature and classification. Practices that have been or can be classified as ‘offensive’ in Australia by either the Classification Board or Customs, include g-spot ejaculation, candle wax, small breasts and long inner labia. This illustrates that the current classification system is out of date and out of touch with Australians’ current sexual practices. Already, classification laws effectively prohibit the depiction of visible aspects of women’s pleasure, body shapes, body fluids and bodily functions.9 The Committee must be careful that the outcomes of this Inquiry do not perpetuate or increase these anachronistic laws, which were recommended for reform by the Australian Law Reform Commission in 2012.10

In addition, the Committee should be weary of blanket assertions that particular sexual practices are inherently degrading without reference to the experiences of the participants themselves. In 2016, we cannot say unequivocally that anal sex is inherently degrading, that consensual sex on film is inherently offensive, or that consumers necessarily and only bring an objectifying gaze to pornography. Anal sex is increasingly common among people of all genders and sexualities. Ordinary people film themselves and their partners engaging in sex within intimate relationships. The advent of social media as well as membership forums, behind-the-scenes interviews and autobiographies are just some of the mediums through which performers speak with fans, consumers and the wider public, acting as opportunities to have voice, speak back, answer questions, engage in activism, and share their hobbies, interests and opinions. These avenues lessen the ability of pornography to be read as objectifying. More nuanced understanding is warranted to ensure that this Inquiry is addressing sexism, not sex itself.

The Committee should be weary of blanket assertions of objectification without unpacking how this term is being defined. In his study published in The Journal of Sex Research, Alan McKee analyses fifty bestselling pornographic videos in Australia and found that women are not objectified more than men..11 In the films analysed, women were actively looking at the camera, returning the gaze, speaking to the camera, initiating sex and speaking with other characters.

Similarly, the Committee should be precise in what it is looking for when it is concerned with violence. In their Australian Research Council funded study Understanding Pornography in Australia, Alan McKee, Catharine Lumby and Kath Albury argued that when examining pornography, ‘violence’ should

6 Ronald Weitzer, above. 7 Anna Carline (2011), ‘Criminal justice, extreme pornography and prostitution: Protecting women or promoting morality?’, Sexualities 14(3) 312–333. 8 Zahra Stardust, ‘Human Rights Impacts of Criminalising Pornography’, 22nd Congress of the World Association of Sexual Health, Singapore, 2015. 9 Zahra Stardust (2014), ‘Fisting is Not Permitted: Criminal Intimacies, Queer Sexualities and Feminist Porn in the Australian Legal Context’ in Feona Attwood and Clarissa Smith (eds), Porn Studies, Volume 1, Issue 3, 258-275, United Kingdom: Routledge. 10 Australian Law Reform Commission, Classification—Content Regulation and Convergent Media (ALRC Report 118) tabled on 1 March 2012. http://www.alrc.gov.au/publications/classification-content-regulation-and-convergent-media-alrc-report-118 11 McKee, Alan (2005) ‘The objectification of women in mainstream porn videos in Australia’ The Journal of Sex Research 42(4), 277-290.

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not be defined to include activities such as consensual spanking. They used Robert Baron’s definition of violence as ‘Any form of behaviour directed toward the goal of harm; or injuring another living being who is motivated to avoid such treatment.’12 The researchers specifically looked for moments where the actors were uncomfortable, not enjoying themselves, being forced to do anything they didn’t want to do, as well as using aggressive language or dirty talk where the person did not look to be enjoying it. Of 838 scenes in these fifty best-selling porn videos, only 2% contained an element that might be described as violent, erring on the side of caution.13

Violence is not characteristic of Australian pornography, and it is important to note that the X18+ category is the only category that prohibits violence altogether. Young people can view violent material in films classified as low as G and PG. If the Committee is concerned with violence in media, it should be very careful not to further criminalise already marginalised sexual practices. Pornography should not be a scapegoat for levels of violence in media and society more broadly that are impacting on young people’s attitudes and behaviours.

Furthermore, we cannot assume that explicit imagery in and of itself causes misogynistic attitudes any more than other forms of media. We also cannot assume that young people absorb values from media without bringing their own critical lens to their interpretation and use of that media. In The Porn Report, McKee, Albury and Lumby found that One Nation voters, followed by Coalition voters, were more likely to be misogynist.14 And yet we are not seeing an Inquiry into how harm is being done to women and children by the current Coalition Government.

Pathologisation of consumers, focus on children, and invention of ‘porn addiction’ is an anti- pornography tactic that lacks scientific evidence, supports a ‘treatment industry’ and comprises a moral panic.

As sex workers became more visible in media and began writing their own accounts of their experiences and practices at work, including their struggles for decriminalisation, justice and labour rights, accusations of pornography as violence against women became less credible, and instead the focus turned towards alleged secondary harms perpetrated by the consumers of pornography. Recently, the pathologisation of consumers of pornography has become the defining focus within pornography debates in popular culture. Clinical psychologists and scientists have critiqued the invention of ‘sex addiction’ and ‘porn addiction’ as having no scientific basis, and stated that substance-based models of addiction cannot be translated onto engagement with cultural forms. David J Ley writes in his book The Myth of Sex Addiction that the concept of is ‘based on questionable research and subjective moral judgments’ (David Ley, 2012). In fact, he argues that viewing pornography consumption as a disorder – as something unnatural, unhealthy, dangerous – actually labels men as weak and powerless against an onslaught of lust, reducing men’s personal responsibility. Ley writes that media scandals of sex addiction are voyeuristic and exploitative and have replaced medical and scientific debate.15 Not only does this mean that explicit media is seen ‘as a dangerous evil temptation that must be constantly constrained’, but that ‘This diagnosis poses a real risk of stigma and shame to innocent people, simply because their sexual behaviours do not fit what is defined as the social norm’.16

Ley, Prause and Finn write that visual sexual stimuli (VSS) fail to meet standards of addiction, and that the theory and research behind ‘pornography addiction’ is hindered by poor experimental designs,

12 Alan McKee, Catharine Lumby and Katherine Albury, The Porn Report, Melbourne University Press, 2008, 52. 13 Alan McKee, Catharine Lumby and Katherine Albury, The Porn Report, Melbourne University Press, 2008, 53. 14 Alan McKee, Catharine Lumby and Katherine Albury, The Porn Report, Melbourne University Press, 2008, 82. 15 David J Ley, The Myth of Sex Addiction, Rowman and Little Publishers, Inc, UK, 2012, 2. 16 David J Ley, The Myth of Sex Addiction, Rowman and Little Publishers, Inc, UK, 2012, 3.

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limited methodological rigor, and lack of model specification.17 They argue that the term lacks specificity so as to make it useless, and that individuals reporting ‘addictive’ use of VSS could be better conceptualized by considering issues such as libido, desire for sensation, with internal and external conflicts influenced by religiosity and desire discrepancy. In fact, they make important and suspicious note of the large, lucrative treatment industry that has conveniently boomed with this new ‘addiction’.

The focus on the consumer of pornography is occurring at the same time as we are seeing an increased push among anti-sex work advocates for the criminalisation of clients of sex workers. This criminalisation has only resulted in increased policing and the reduction of sex workers control over their health, safety and work environments.18 Consumers of pornography, like clients of sex workers, have been marginalised and as Alan McKee describes, ‘Othered’19 by these debates, despite being affected by the potential law and policy outcomes. Feona Attwood of Middlesex University in London writes that the focus on the ‘child’ as the locus of this discourse is consistent with the way in which moral panics are constructed.20

2. Trends of online consumption of pornography by children

Young people are experts on their own lives, and their media cultures are not problems to be solved.

This Inquiry posits consumption of online pornography by young people as inherently harmful. But there may be different ways in which we can think about how young people are engaging with online media. In their workshops with secondary school teachers, health promoters and youth workers in New South Wales and Queensland, Kath Albury and Paul Byron found that educators and policy- makers need to move beyond asking ‘what does media do to young people?’ towards asking instead ‘what do young people do with media?’ They say that instead of seeing young people’s media cultures as a ‘problem to be solved’, ‘everyday media practices [can] be re-framed as valuable resources to inform sexual health promotion and education policy and practice.’21

People watch porn for leisure, boredom, stress, identity and relationships

Consumers of pornography are not a monolithic category. Studies indicate that one-third of consumers are female, and consumers include people of a variety of sexualities. A study of 5000 consumers by researchers at Sunderland University in the United Kingdom found that people access pornography for a range of reasons, including boredom, escaping stress, pleasure, leisure, inadequate sexual opportunities, as part of relationships, to try out fantasies, explore sexual identity and aesthetic/erotic experience.22

For this reason, using language about young people’s ‘exposure’ to pornography as if it has an immediate or long term negative effect is unhelpful. Consumers seek sexually explicit content for a variety of reasons, and these explicit texts function in different ways in different contexts. As Feona Attwood writes, they can be ‘a source of knowledge, a resource for intimate practices, a site for identity construction, and an occasion for performing gender and sexuality.’23 Further, studies show

17 David Ley, Nicole Prause, Peter Finn, (2014) ‘The Emperor Has No Clothes: A Review of the ‘Pornography Addiction’ Model’, Current Sexual Health Reports, 6:94–105. 18 Jay levy, Criminalising the Purchase of Sex: Lessons from Sweden, Routledge, 2014; Jay Levy and Pye Jakobsson (June 2013), ‘Abolitionist Feminism as Patriarchal Control’, Dialectical Anthropology, 37:2, 333-340. 19 Alan McKee, ‘The Pornography Consumer as Other’, forthcoming. 20 Feona Attwood, (2007) ‘“Other” or “one of us”’? The porn user in public and academic discourse’ Participations: Journal of Audience and Reception Studies 4(1). 21 Albury, K. & Byron, P. (2015) Rethinking media and sexuality education: research report, November 2015, Sydney: University of New South Wales. 22 Fiona Attwood, Clarissa Smith and Martin Barker, Preliminary Findings from Porn Research: http://pornresearch.org/results.html. 23 Feona Attwood (Spring 2005) ‘What do people do with porn? Qualitative research into the consumption, use and experience of pornography and other sexually explicit media’ Sexuality & Culture, 9:2, 65-86 at 65.

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‘young people select media texts that relate to their preoccupations and are able to interpret them critically.’24

Young people are critical media consumers and are talking about what they see online. Media can be an important source of self-esteem, belonging and identity.

Research on media and pornographies show that young people view pornography in multiple ways, and bring a critical lens to what they see. Young people have things to say about pornography, and these conversations are productive. Rather than accepting pornography as ‘truth’, they have feedback and ideas about the gender presentations, plausibility, sexual activities and aesthetics of what they watch. We also cannot assume that young people absorb values from media without bringing their own critical lens to their interpretation and use of that media.

Sexual and explicit media can also play a role in affirming desires, bodies and practices of young people, in particularly sexual minorities who are underrepresented in media representations. Accessing media images can be an important source of self-esteem for youth. Alan McKee argues following his qualitative study with gay men in Perth that media was ‘the most important source of information about gay identity for these men in their youth’ and can play a ‘potential role in overcoming the low-self-esteem and suicidal tendencies of young gay men’.25

3. Impact of online porn consumption on development of healthy and respectful relationships

Pornography is a scapegoat for the rife misogyny found in medicine, government, science and broader society. Targeting pornography avoids government responsibility for other systemic oppressions.

There is no doubt that young people are impacted by misogyny, in addition to the homophobia, transphobia and racism on which our systems of government, infrastructure and media are built. But to locate the primary source of oppression in pornography ignores the role of non-explicit media, behavioural practices and regulatory systems as sites from which young people learn about gender, relationships and sex. Binary concepts of sex and gender are imbricated in the medical profession and young people learn about gendered roles and expectations from birth. Emily Martin writes about how cultural gendered norms affect how we read scientific discourse, even at the level of biology.26

We cannot attribute misogyny to pornography without examining society more broadly: What is the government doing about closures to essential women’s services, cuts to welfare for single mothers, detention of women and children seeking asylum, forced medical interventions for intersex people, or safe environments for trans youth in schools? If the Government is not willing to act on these pressing and systemic issues, how is filtering or banning pornography going to end misogynistic attitudes and gender oppression?

24 Fiona Attwood, above at 79. 25 Alan McKee, (2000) ‘Images of gay men in the media and the development of self-esteem’, Australian Journal of Communication 27(2), 81-98. 26 Emily Martin (Spring, 1991), ‘The Egg and the Sperm: How Science has Constructed a Romance Based on Stereotypical Male-Female Roles’ Signs, 16:3, 485-501.

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Young people, including LGBTIQA+ youth, have a human right to appropriate, relevant and targeted sex education and information.

In Australia, we have no comprehensive sex education syllabus nor any standard age that sex education is required to begin. Marie Stopes International notes that in Australia a third of school children have had their first sexual experience at age 14 years or younger, yet almost one in ten say they have not been taught sex education at school. While just over half of teens who have received sex education at school claim to have been taught topics such as sexual decision making (51%), less than half have received information on the emotional aspects of sex (39%) and non-consensual sex (43%).27

We need a curriculum that provides developmentally appropriate information about pleasure (not just reproduction), sexual experimentation (not just monogamy), media literacy (de-coding, not just banning pornography), sexual ethics, non-violence, decision-making, and consent. All students need to be taught about gender diversity, homophobia, transphobia, collective historical struggles and ongoing fight for human rights that have a significant affect upon health and wellbeing. LGBTIQA+ health relies upon ‘the promotion of progressive sexuality education messages in classrooms addressing homophobia, sexual autonomy, sexual experimentation’.28 Listening to young people (not just what adults think they need), and providing information, skills and tools is the best way to prevent abuse, and to support young people in identifying dangers and navigating risks in the world. Young people have a human right to access education and information.

Pleasure-based education and sexual ethics can act as a violence prevention strategy

The call for a pleasure focus – as opposed to merely abstinence or reproduction in sex education – is not new, and can be dated back to 1988.29 In her work, Moira Carmody argues that instead of focusing on women managing risk and behaviour of unethical men, anti-violence strategies could instead focus on sexual ethics among young people. Her 2003 findings from in-depth qualitative interviews with 26 Australian women and men of diverse sexualities indicate that women and men regardless of erotic choice of partner have found multiple ways to explore sexual pleasure that is ethical, non-violent and where danger is reduced. People need to be able to negotiate ethical sexual intimacy, and require skills and tools to develop ethical and non-violent relating. This is a strategy to prevent sexual violence in intimate relationships, and yet is invisible in current discourses.30

One study concludes that young people are critical of ‘risk talk’ about the danger of pornography and vague allegations of harm, which ‘bother[s] young people more than the actual pornographic content they encounter’, and instead they ‘need diversity-embracing, safe environments in which to discuss sex, sexuality and pornography’.31 This study examined 4212 questions on sexuality sent by young people to experts on sexual health, of which only 1.5% focused on pornography, suggesting that there are more important concerns for young people than pornography.

27 Marie Stopes International, Sexual and Reproductive Healthcare: New Research Shows Sex Education and Knowledge Levels Lacking for Teens, 27 October 2009, http://www.mariestopes.com.au/news/136 now published here: http://www.mariestopes.org.au/wp- content/uploads/2013/11/Student-Resource-Kit-2014.pdf. 28 Tiffany Mary Jones and Lynne Hillier (2012) ‘Sexuality education school policy for Australian GLBTIQ students’, Sex Education, 12:4, 437- 454. 29 Fine, M, 1988, ‘Sexuality, schooling, and adolescent females: The missing discourse of desire’ Harvard Educational Review 58:1, 29–54, cited in Louisa Allen and Moira Carmody, ‘Pleasure has no passport’: re-visiting the potential of pleasure in sexuality education, Sex Education Vol. 12, No. 4, September 2012, 455–468. 30 Moira Carmody (2005) ‘Ethical Erotics: Reconceptualizing Anti-Rape Education’ Sexualities, 8:4, 465-480. 31 Sanna Spišák (2016), ‘Everywhere they say that it’s harmful but they don’t say how, so I’m asking here: Young people, pornography and negotiations with notions of risk and harm’, Sex Education, 16: 2, 130–142 at 139.

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Healthy sexual development includes being competent in mediated sexuality. More information, not less, will protect children from abuse. Education is key part of cyber-safety.

A group of Australian researchers from a range of disciplines involved in studying children’s sexual development developed a framework for researching healthy sexual development. These researchers included a psychologist specializing in preventing child sexual abuse, an early childhood expert, a legal expert in children’s rights, a specialist in sexuality education experts on sexual socialization, and experts on the media’s impact on children’s development). The 15 domains identified were:

freedom from unwanted activity; an understanding of consent; education about biological aspects; understanding of safety; relationship skills; agency; lifelong learning; resilience; open communication; sexual development should not be “aggressive, coercive or joyless;” self- acceptance; awareness and acceptance that sex is pleasurable; understanding of parental and societal values; awareness of public/private boundaries; and being competent in mediated sexuality.32

If the Committee is concerned with what expert researchers define as healthy sexual development, filtering pornography is not the answer. In pornography, young people can see visual examples in which performers assert their boundaries and say ‘no’ or ‘safe word’ to particular activities, negotiate consent in pre-scene interviews and de-brief about their experiences in post-scene footage. Sexually explicit media provides a context for communication and discussion within relationships, including understandings of and responses to the ways in which sexuality is mediated through various lenses.

Assisting young people to develop skills to negotiate risks, navigate the Internet, and understand what they see is a more effective strategy than hiding content from them. Being able to identify harmful behaviour, including online, is an important part of cyber-safety and will reduce likelihood of abuse. Over-protectionism is oppressive. Young people should be able to take calculated risks and identify dangers.

Decriminalising pornography would allow porn performers to speak publicly and deconstruct the process of creating pornography, sharing important insights on fantasy, labour, boundaries and sexual health.

Part of the response to supporting young people in de-coding and navigating online sexual content is hearing the voices and experiences of those who perform in and produce pornography. The decriminalisation of pornography – its production, advertising, sale and in some places consumption – is necessary to reduce stigma associated with this work, and allow performers and producers to come forward and share their valuable experiences of labour with young people without fear.

Porn producers have been pro-active in creating materials that are specifically educational in aim. From Candida Royalle’s series Bend Over Boyfriend, teaching women about the practice of male- receptive anal sex, to Nina Hartley’s instructional porn videos, Crashpad’s guide to fisting, and Madison Missina’s #safesexissexy campaign, women performers and directors have been at the forefront of demonstrating sexual health techniques and practices on video. Fitzroy High School in Victoria has held community forums on pornography for teens and parents, where porn performers have spoken alongside sexologists, family planning and psychologists. This has been an opportunity for teens to seek out information that parents fear to discuss.33 Sexually explicit media, including

32 Alan McKee PhD , Kath Albury PhD , Michael Dunne PhD , Sue Grieshaber, PhD , John Hartley PhD , Catharine Lumby PhD & Ben Mathews PhD (2010) ‘Healthy Sexual Development: A Multidisciplinary Framework for Research’, International Journal of Sexual Health, 22:1, 14-19. 33 ‘Generation Sex’, Fitzroy High School, August 24 2015; ‘What’s Missing in Sex Education’, Fitzroy High School, 3 June 2014.

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pornography, can be part of healthy sexual development, where is it de-coded, not proscriptive, and young people have the conceptual tools to navigate it.

4. The identification of any measures with the potential for implementation in Australia.

Content regulation in an age of convergent media means a move away from classification and towards hybrid forms of co-regulation. Classification of pornography is impossible and unnecessary if age restrictions are in place. Community standards are now based on shared values rather than geographical location.

This Inquiry raises broader legal and policy questions about how online content is regulated in an age of convergent media. Online classification is an impossible task, given the sheer amount of content. The internet also presents jurisdictional challenges for the law, as content may be produced, uploaded, sold and viewed across countries.

In 2012 the Australian Law Reform Commission produced a report on classification and content regulation, noting the ‘rapid pace of technological change’, the ‘size of the industries that generate potentially classifiable content’ and ‘minimising the regulatory burden’.34 In this report they recommended that sexually explicit content should not be classified at all, but that steps should just be taken to restrict access, and this could be something that is co-regulated by industry and government together.

This shift towards what Professor Terry Flew calls ‘hybrid’ forms of government regulation can also be seen in the way that the Australian Communications and Media Authority (ACMA) has moved from being, when it was created in 2005, a full administrative regulator for the four sectors of telecommunications, broadcasting, radio communications and the internet, to harm mitigation and collaborative partnership.35

Academics Alan McKee, Brian McNair and Anne-Frances Watson state that the Internet is mostly governed according to geographical location, rather than by virtual community. But ‘In the digital era, however, where community seems to have no geographical boundaries, censorship has become practically unworkable”. We can see online that there are virtual sexual communities, with terms of agreement based on shared values rather than geographical location. The authors write that within the ‘pornosphere’ there exist virtual 'suburbs' where like-minded people have a place to go and feel a sense of belonging and acceptance. Community standards should be determined in reference to the shared values of people who visit those sites, whether they are groups if individuals linked ‘by sexual lifestyle, orientation or fetishism’.36

The regulatory challenge, they write, is “how to help consumers navigate the pornosphere in ways which allow them to maximise their enjoyment of materials while simultaneously preventing their exposure to materials that might disturb them”.37 This is a similar rationale to the Guiding Principles

34 Australian Law Reform Commission, Classification—Content Regulation and Convergent Media (ALRC 118 Summary), Terms of Reference, 3 http://www.alrc.gov.au/publications/classification%E2%80%94content-regulation-and-convergent-media-alrc-118-summary. 35 Terry Flew, ‘Porn, Censorship, Classification and Free Speech: Global Paradoxes in the Governance of Media Content’ and ‘Regulation Beyond Government: Weber, Foucault and the Liberal Governance of Media Content’, presented at the Academic Research, New Media Technologies and the Culture of Control interdisciplinary workshop, University of Wollongong, 2-3 October, 2015. http://terryflew.com/2015/12/two-papers-on-censorship.html 36 McKee, Alan, McNair, Brian, & Watson, Anne-Frances (2015) ‘Sex and the virtual suburbs : the pornosphere and community standards’ in Maginn, Paul J. & Steinmetz, Christine (Eds.) (Sub)Urban Sexscapes : Geographies and Regulation of the Sex Industry. Routledge, Oxon, United Kingdom, pp. 159-174. 37 McKee, McNair, Watson, above.

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in Australia’s National Classification Code, that adults should be able to read, hear and see what they want and everyone should be protected from exposure to unsolicited material that they find offensive.

Voluntary filters already exist and are being used. A mandatory Internet filter will block important health promotion, harm reduction and educative materials.

The adult industry is already taking steps to restrict content to people under 18 and has been a pioneer for software in this regard. There is a range of parental control software available that parents can voluntarily install on their home computers to limit access to certain websites, such as Net Nanny. Companies and parents already utilise this software.

Previous government proposals for an internet filter have threatened to effectively blacklist extraneous materials, including academic, educational and harm reduction material and has been criticised by media academics.38 Material blocked in other countries includes information on non- pharmaceutical drugs, safe injecting, mental health, LGBTIQA+ sexuality education, family violence, child abuse, alcohol, gambling, maternity leave, and political material of public interest. These educative, discussion-based, networking and service provision sites are essential to people seeking assistance and guidance, including youth. An internet filter will close down more than discussions. It will block vital information that assist young people to navigate the world.

Specifically, a filter should not merely take the outdated definitions and contents of the current ‘refused classification’ category developed for film, and apply it to the Internet. This would be inappropriate and counter the recommendations of the Australian Law Reform Commission, who state that the content of the RC category should be reviewed and amended.39

Industry codes could outline reasonable steps to restrict access to sexually explicit content. However, age verification and access requirements should not involve consumers uploading identification or name/email registration on a database. There are significant risks for privacy, data sharing and surveillance.

Even the ALRC have stated that classification of adult content is not viable and instead all that is needed are reasonable steps to restrict access to adult content: ‘Requiring Australian classifiers to watch and classify all R 18+ and X 18+ content is not an effective or viable means of regulating adult content… If reasonable steps are taken to restrict access to adult content, there is no need to impose an obligation that the content also be classified’.40

The ALRC suggest that the various ‘reasonable steps’ that different types of content providers might be expected to take could be prescribed in industry codes, approved and enforced by an independent regulator. These could include codes on how and where to advertise, package and display hardcopy adult content; the promotion of parental locks and user-based computer filters; how to confirm the age of persons accessing adult content online; and how to provide warnings online. The ALRC specifically recommends that methods of restricting access to adult content should be set out in industry codes, rather than in legislation.41

38 John Hartley, Lelia Green, and Catharine Lumby, ‘Refused Classification and the proposed Australian Internet filter: An assault on the Open Society’, Australian Journal of Communication, Vol 37 (3) 2010. 39 Australian Law Reform Commission, Classification—Content Regulation and Convergent Media (ALRC 118 Summary), 259. 40 Australian Law Reform Commission, Classification—Content Regulation and Convergent Media (ALRC 118 Summary), 239. 41 Australian Law Reform Commission, Classification—Content Regulation and Convergent Media (ALRC 118 Summary), 243.

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In the UK, calls for age verification systems have raised concerns among experts. Eligibility to access goods and services online should not be conflated with processes to assure identity. People don’t usually stumble upon porn. Generally, porn is sought out through a number of steps – typing in text, swiping a screen or clicking to opt to continue forward.

Age restrictions mechanisms should not involve porn consumers being required to upload identifications, or register their identity details on any database. Processes in which consumers are requires to upload passports or drivers licences are firstly ineffective – young people could still use passports, licences or credit cards of an adult. The system is not foolproof. But also there is a substantial privacy risk for consumers in terms of their privacy and identity online. In some states of Australia, sex workers are required to register on government or police databases, and this information has been impossible to remove, even for retired workers, and has emerged in court cases completely unrelated to sex work. There is a substantial risk that porn consumers and their identities, a sizeable amount of the Australian population, will have their online behaviour tracked and recorded on a database that could be used for ill-purposes in future. This risk is heightened if governments were to require verification of the identification, such as through comparing a photo of the person asserting the evidence with the photo on the document, through use of smartphone apps.

It is sufficient for a consumer to click that they agree that they are of legal age in the jurisdiction in which they are accessing the content. It is unnecessary for identity details to be uploaded, verified and shared. Because online material is accessed across geographical borders, where the legal status of consumption varies, it would make sense to ask users whether they are of legal age to view the material in the jurisdiction in which they are accessing it (rather than a blanket 18+). A simple yes/no response will lessen the regulatory burden on government and protect people’s privacy in an age where there is already mass sharing of data.

In addition, industry codes could prescribe that adult sites include a ‘content-forecasting’ or ‘signposting’ of material that provides the user with information about the nature of content, and this process could have independent oversight. However, given that explicit content is already prohibited from any website hosted in Australia, there would be jurisdictional challenges in regulating content which is hosted overseas. It is important to note that Australian pornography producers are already role-modelling this practice, by including information in an opening title that outlines the processes for consent, safer sex negotiation, and the kinds of acts that will be depicted.42

Age of access to explicit media should be consistent with the age of consent to sexual activity

The use of the term ‘children’ implies an innocence and need for protection, while minors who are 16+ accessing pornography have legal capacity to consent to sex. There are inconsistencies between young people’s age of consent to participate in sexual activity, and age of consent to view sexual activity, meaning 18+ restrictions may make it illegal to view an act that is legal to do.

Big business tube sites provide free, largely pirated or archival content while small independent producers face institutional discrimination and structural barriers to selling their work. Availability of free online porn is about monopolisation and piracy, not unique to pornography. Government can support and subsidise independent pornography to diversify the content available online.

No doubt some of the submissions in response to this Inquiry will focus on material made available online through porn tube sites such as . Tube sites provide free video streaming similar to YouTube and include user-generated material. But they also buy archival content

42 Zahra Stardust, ‘Feminist Porn, Corporate Censorship and Community Standards’ Trans/Forming Feminisms: Media, Technology, Identity, University of Otago, New Zealand, November 2015.

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from defunct websites and often pirate content from competitors, meaning they have enormous quantities of content that is often available for free, without any requirements for credit cards, age verification or email log in.

Eight of the top ten porn tube sites (measured by traffic) are owned by Canadian company MindGeek. MindGeek is defending a piracy lawsuit for allegedly hosting and charging for access to pirated videos on its premium pay section. MindGeek have been reported to devalue companies through piracy, charge them for advertising space, and then purchase. MindGeek not only owns tube sites but also other big name content producers such as Digital Playground. Some describe MindGeek as fast becoming a ‘single, monopolistic owner’ of porn production and distribution.43

The concerns about the availability of online porn are actually related to a lack of regulation for big business, film piracy, and distribution of free content, alongside extremely tight regulation for independent producers who wish to sell their work. Independent producers face barriers that they say make the sale of porn virtually unviable.44 These include refusals from banks in processing adult payments, administrative and financial costs in securing billing from Australia, and higher fees due to the assumed risk of adult websites.45 Platforms such as Vimeo, Paypal and Amazon have all refused adult content.46 Combined with criminal laws in Australia that prohibit advertising of X18+ material, it is increasingly difficult and expensive to actually sell pornography.47

Availability of freely accessible online porn is an issue about big business and monopolisation, not unique to pornography. Cindy Gallop has said that instead of blocking porn governments should support and fund porn entrepreneurs who want to disrupt dominant representations of sex,48 and they could do this by ensuring that banks, payment platforms, video hosts and email partners stop discriminating against adult businesses and providing financial support or subsidies to independent producers.

Any reforms should be driven and informed by young people’s experiences and needs, not adult’s preoccupation with what we think young people need protection from.

I question what prompted this inquiry and whether it was actually driven by or in consultation with young people, or by other political and moral interests. Law reform initiatives should be informed by and driven by young people rather than by adult, anti-pornography campaigners or adult (mis)understandings of young people’s sexual cultures and practices.

Young people are critical of adult’s discourses of ‘sexualisation’ which does not resonate with them, and are sceptical of adults telling them what is appropriate, experiencing a burden of over- surveillance, and being a focal point for wider societal anxieties. In Kath Albury, Kate Crawford, Paul Byron and Ben Matthews’ focus groups with young people on sexting, youth reported that adults did

43 David Auerbach, ‘How a Canadian company you’ve never heard of took control of the porn industry’, National Post, 24 October 2014: http://news.nationalpost.com/news/how-a-canadian-founded-company-youve-never-heard-of-took-control-of-the-porn-industry; Stoya, ‘Tube and Torrents: the Ethics of Piracy’, Graphic Descriptions, 4 March 2014: http://graphicdescriptions.com/28-tubes-vs-torrents-the- ethics-of-piracy. 44 Tina Horn, ‘How the financial sector is making life miserable for sex workers’, 14 July 2014, http://www.vice.com/read/how-the- financial-sector-is-making-life-miserable-for-sex-workers-714. 45 Lux Alptraum, ‘Is porn really so high risk that porn stars shouldn’t have bank accounts?’ The Guardian, 30 April 2014, http://www.theguardian.com/commentisfree/2014/apr/29/porn-stars-high-risk-bank-accounts. 46 Kitty Stryker, ‘How PayPal and WePay discriminate against the adult industry’ 2 April 2014: http://www.thefrisky.com/2014-04-02/the- soapbox-how-paypal-wepay-discriminate-against-the-adult-industry/ ; EJ Dickson, 'Amazon is deleting sex workers wishlists without notice’, 2 May, 2014: http://www.dailydot.com/lifestyle/amazon-sex-worker-wish-lists/. 47 Zahra Stardust, ‘Women in the porn industry need rights and proper pay, not token gestures’, The Conversation, 8 March 2016: https://theconversation.com/women-in-the-porn-industry-need-rights-and-proper-pay-not-token-gestures-55825. 48 Cindy Gallop, ‘David Cameron, don't block porn, disrupt it’ The Wired, 14 August 2013: http://www.wired.co.uk/news/archive/2013- 08/14/cindy-gallop-open-letter.

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not understand the situation, used inappropriate language to describe it (sexting was seen as a hysterical term), and adults felt that young people should be ashamed. Research shows that the issues affecting young people are quite different to the issues adults think, and that adults’ lack of understanding about young people’s media cultures and practices impacts sexuality education and health promotion policy.49

The Committee should listen to young people and involve young people in articulating what they need in terms of media literacy, de-coding of pornography, sex education, safe relationships and negotiating mutual ethical sexual experiences.

49 Albury, Kath, Crawford, Kate, Byron, Paul and Mathews, Ben, Young People and Sexting in Australia: Ethics, Representation and the Law, April 2013: http://www.cci.edu.au/sites/default/files/Young_People_And_Sexting_Final.pdf.