The following post was written by Fanhackers chair Nele Noppe.
For fans of manga, anime, and other Japanese media, pointing and laughing at inaccurate mass media portrayals of Japanese pop culture has been something of a sport for decades. A few weeks ago, however, things took a slightly more serious turn.
The ball got rolling when early in June, the Japanese House of Representatives approved a long-overdue law banning the possession of child pornography. Up to now, creating and distributing child pornography was as forbidden in Japan as anywhere else, but “simple possession” had not yet been criminalized. The new law applies only to “real” child pornography and leaves alone completely fictional depictions of underage characters in sexual situations in manga, anime and other media. This exception came about after vocal protests from manga publishers, creators, fans and free speech rights activists. The story was widely reported in non-Japanese media. However, most of these reports focused on handwringing about Japan’s “failure” to clamp down on sexually explicit manga. Most shared was a CNN article filled with outrage about how the new law supposedly permits Japanese bookstores to fill their shelves with shocking cartoon porn about children.
As the Comic Book Legal Defense Fund (CBLDF) pointed out in a scathing reaction post, CNN’s report was highly misleading and uninformed, misrepresenting manga in general as pornographic and painting the “freedom of speech” arguments against the new law as no more than the lobbying of a large industry bent on making profit from icky virtual child pornography. The comments section of the CNN article quickly filled with anime and manga fans fact-checking the text and refuting its arguments.
Their support, and that of the CBLDF, was of some small comfort to Japanese creators and activists who were aghast at their portrayal in Western media. Simple complaining about “Japanese cartoon porn” is, by now, no more than sadly familiar. Sensation-hungry Western news outlets have been creating miniature moral panics out of that ever since they realized that in Japan, comics and animation are media that are used to express not just “kiddy stuff” but every kind of content, including pornography.
This uproar went further in the sense that it represented manga creators and free speech activists as money-grubbing child pornographers. CNN and other news sources seemed unaware that in Japan, unlike in the United States, laws that restrict depictions of sexuality in media actually are a very serious freedom of speech issue, and have been so since immediately after WWII. Japanese creators and publishers of sexually explicit material who yell about free speech rights are not just demanding the right to do whatever they like; they are continuing half a century of protests against arbitrary and outdated censorship laws.
A look at Japanese legal history
Japanese authorities have used and continue to use laws against “obscenity” to attempt to control what gets published in the country. Before and during WWII, such laws were among several used to suppress any speech that did not support Japanese militarism. After the war, freedom of speech was guaranteed in Japan’s new constitution, but still restricted by only one remaining bit of pre-war legislation: Article 175 of the Criminal Code of Japan, which prohibits the sale or distribution of materials that contain “obscenity” (waisetsu).
Other countries at the time also attempted to legally curtail “obscene” media, of course, but Japan’s anti-obscenity law turned out to have bigger teeth than many others. For instance, in the 1950s and 1960s, the US, Britain, and Japan all held separate trials about obscenity contained in the D.H. Lawrence novel Lady Chatterley’s Lover. In the US and Britain, the trials ended in acquittals, greatly reducing the subsequent relevancy of obscenity laws for media in those countries. In Japan, however, Lady Chatterly was judged obscene. The victory of the prosecution in this first postwar Japanese “obscenity” trial was an important precedent, because it confirmed that obscenity laws were a stick that authorities could beat publishers and authors with whenever they were displeased with the direction Japan’s creative sector was going in. Lady Chatterley was the first in a series of protracted and much-publicized “obscenity” trials that covered many different media, from books to film to photographs to manga. (See Cather for in-depth analysis of censorship in Japan.)
Far from being discouraged, the Japanese media industry made dodging of the censors into an art form. Manga creators, for instance, got very creative in figuring out ways to depict naked bodies and sex without showing pubic hair (long a no-no) or genitalia. Article 175 and related laws and local ordinances were applied so rarely and so inconsistently that the creators and publishers who did end up getting charged were usually very surprised to be singled out. Still, many of the obscenity trials turned into platforms for broad swathes of Japan’s literary world and media industry to try and wrestle back their right to publish freely from the state. Many feel that bureaucrats and police have no business deciding what people are allowed to read in order to protect a vague and constantly-shifting idea of “public morality”.
No matter how rarely used, laws against obscenity, and (especially since the 1990s) a mushrooming multitude of local ordinances against “harmful” media, do influence what can get published, what can be on library shelves, and what people can write and draw. The chilling effect of even potential legal troubles was – and still is – considerable for authors and publishers. Only weeks ago, a new manga by an assistant mangaka working on the popular series Attack on Titan was cancelled because its publisher feared that it might run afoul of a local ordinance in Tokyo aimed at curtailing the spread of “unhealthy publications”.
The fandom effect
Censors’ attention turned to manga and fan culture after 1989, when a serial killer turned out to possess large amounts of sexually explicit anime and be a participant in Comiket, Japan’s largest convention for fan manga (doujinshi). This led Japanese media to engage in what fans called “otaku bashing”.
Although stigmatization of fans as socially maladjusted and possibly dangerous loners has lessened much since then, its effects are still felt. The most recent high-profile “obscenity” trial, a five-year legal battle that ended in 2007 with a guilty verdict from the Supreme Court of Japan, was about a manga (more on that trial). Commentators and scholars argue that manga has become a target for censorship, at least in part, because anime, manga, and Japanese fan culture in general have been gaining much attention and acclaim overseas. The Japanese government has been trying to turn that attention into money with various “Cool Japan” campaigns aimed at promoting Japanese media products and tourism to Japan.
Polemics in foreign media about the less photogenic parts of Japanese pop culture, like adult manga, are then unwelcome indeed. Some warn that with the Tokyo Olympics coming up in 2020, local and national authorities in Japan may get even more sensitive to foreign handwringing about “Japanese cartoon porn”. However valid that fear may or may not be, last month’s new flap about manga and anime highlights how uninformed many media outlets still are about Japan, and how little any articles about non-English fandoms in the mass media can be trusted. Shallow and alarmist reporting by major and (somewhat) respected news sources like the BBC and CNN reinforces orientalist stereotypes about Japan and its people being somehow lacking in sexual morals. Clearly, it also does great harm to the cause of activists who are fighting to keep bureaucrats and police from gaining tools to control what can be published by the Japanese media, professional and amateur.
Last month’s incident also highlights the growing importance of free speech rights to fan communities. Laws against “obscenity” or so-called “virtual child pornography” are still low on the radar of many English-speaking fans, especially compared to copyright woes. However, the example of Japan shows that these laws can and do have a very direct impact on what fans can make and distribute.
Past and recent cases
In Japan, the extremely popular fan-made manga called doujinshi have to follow the law just as much as commercially published manga. Fans are free to draw what they like in private, but if they want to distribute their fanworks in any way, they have to apply censor bars or mosaics to anything that might possibly catch the attention of censors. Just like with professional manga, the law is applied only rarely and inconsistently, but anti-obscenity laws have still led to legal troubles for individual fans and disruptions of fan activities and fannish infrastructure.
For instance, in the midst of a “harmful books” polemic that followed the arrest of the “otaku” serial killer in 1989, “police confiscated thousands of doujinshi from merchants in Tokyo’s Shinjuku Ward and arrested several shop owners” (Japan Times). In 1991, doujinshi convention Comiket was forced to move out of its convention site Makuhari Messe because police had received complaints about the fanworks being distributed there (Comiket welcomed over two hundred thousand visitors around that time and hosted 11,000 fanwork creators). Doujinshi conventions began to enforce anti-obscenity measures and check every fanwork on sale to make sure it followed guidelines about obscuring genitals and warning buyers of sexual content on the covers. Still, in 1994 and on several other occasions, further conventions had to be cancelled or moved because of complaints about possible “harmful material” being distributed.
“Obscenity” issues were shown to be connected with copyright problems in 1999 when a a female creator of sexually explicit doujinshi for the popular children’s game and anime series Pokemon was arrested for copyright infringement, apparently after someone complained about the explicit material to copyright holder Nintendo. In 2007, a doujinshi creator was arrested and eventually fined because his self-censorship of his works was not sufficient. This lead doujinshi conventions (and online doujinshi shop DLsite) to tighten enforcement of censorship regulations, and the Japan Doujinshi Printing Group to issue self-censorship guidelines for all fans who wanted to have their doujinshi printed by its member printing companies. Later in 2007, a building which had been used by several doujinshi conventions was closed to conventions that feature sexually explicit doujinshi. In 2009, the manager of a doujinshi shop shop was arrested on suspicion of distributing obscene material (NSFW link). Today, various links in the creation and distribution chain of doujinshi – doujinshi printers, conventions, and doujin shops – continue to impress upon fans the importance of “self-regulation” (jishu kisei, in practice “self-censorship”) when distributing fanworks.
Unsurprisingly, censorship issues are at least as important as copyright issues for Japanese fans. Around 2010, for instance, Japanese fan communities were actively involved in a battle to defeat a local ordinance in Tokyo that attempted to forbid the distribution of material containing sexual depictions of ill-defined “nonexistent youths” (more in this TWC article).
Japanese laws are not the only ones causing problems for fans. Outside Japan, several fans have gotten in serious trouble because the manga they love were considered “child pornography” by authorities. The CBLDF has been particularly active in chronicling these cases and sometimes providing legal support to fans. In 2010, for instance, a U.S. manga fan was sentenced to jail because manga in his collection contained “drawings of children being sexually abused”. Also in 2010, another U.S. manga fan was arrested at the Canadian border for similar reasons, at least the second time this sort of arrest happened in Canada. Several more fans have reported online that they were questioned at the Canadian border because they were carrying manga. In 2012, there was a small victory as Swedish manga translator Simon Lundström was cleared of child pornography charges brought on by several manga on his computer.
This string of worldwide incidents surrounding manga, and the uproar in Western media about Japan’s “refusal” to criminalize “virtual child pornography”, shines a light on how little attention most countries outside Japan have paid to the question of whether it makes sense to extend anti-child pornography laws to depictions of entirely fictional children. Some countries, like Australia and Canada, do extend their definitions of “child pornography” to media that contain absolutely no real children, only fictional characters. In the US, this cannot be prosecuted as child pornography, but it can be prosecuted under general obscenity laws if it meets the standard for obscenity (as judged by community standards, patently offensive sexually explicit depictions that lack literary, artistic, political, or scientific value).
However, these laws mostly passed with very little public consultation or debate (see McLelland). There was often no serious inquiry into the question of whether “virtual child pornography” is actually harmful to anyone, and why it should be banned while fictional depictions of other crimes are fine and dandy. Objections about a lack of scientific evidence to link “virtual child pornography” to real harm, and objections about potential censorship, are easily brushed aside in the midst of moral panics about “protecting children”. According to Kotaro Ogino of the Japanese free speech organization Uguisu Ribbon Campaign, this problem is occurring in Japan as well, leading to the constant battles about potential criminalization of “virtual child pornography” that are taking place there today (personal communication).
Also problematic is that, unlike in Japan, many citizens of these countries are not aware it may be illegal for them to make fictional depictions of sexual situations involving minors. Many fandoms such as Harry Potter or Attack on Titan have thriving shipping communities around underage characters. In theory, that puts some fan creators in the crosshairs of anti-child pornography laws. The fact that laws against “virtual child pornography” are rarely or inconsistently enforced does not mean they are harmless. The outcome of the constant fight that Japanese fans, mangaka, and publishers are waging against censorship laws may turn out to be very relevant for non-Japanese fans as well.
For more information
More news and information about censorship problems that impact Japanese and non-Japanese fans of anime and manga can be found on the CBLDF website, the blog of translator Dan Kanemitsu, Anime News Network, and in the articles tagged with “censorship” in the OTW’s fan studies bibliography.