The Chilling Effect – How Censorship Begins without Censorship

Censorship thrives on fear. Sometimes the mere threat of censorship arising can cause businesses to change policies and authors to avoid certain subjects.

This is particularly true in cases where the legal boundaries are left extremely vague and enforced unevenly. If authorities retain the power to curtail certain activities which are popular but legally dubious, then accommodating the authorities gain priority over complying with laws that are vague. Accommodating the authorities does not necessarily entail overt corruption or embezzlement, but instead can mean changing one’s behavior to match the mood of the authorities.

It is very common for the Japanese police to leave certain activities undisturbed for decades, only to raid the operation once it becomes “embarrassing” or “inconvenient.” An extremely telling example of this took place January of this year. (This incident has been written about in English here and here but these are not safe for work sites. Just to prove that this case did take place, here is the link to the new story as written by Sankei, which is one Japan’s largest news outlets.)

Conversely, by curtailing certain activities and imposing self-censorship, the businesses hope to be able to present themselves as being “sensitive” and “respecting the authority of the police.”

I will not go into the moral issues inartistic to such backstage deal making and face saving gestures, although I personally believe that this is very dangerous and counterproductive. Engaging in such “accommodation” tends to encourage authorities to seek as much power as possible, then “benevolently” limit their enforcement so then not to appear as oppressive authoritarians to the electorate, yet retain the power to prosecute a large swath of the population any time they wish, cementing their control of the populace. Thus, legality is dictated by the police’s decisions, not what is defined by law.

One consequence of this type of relationship is the tendency to over-self censor.

In April 2011, after the passage of Bill 156 by the Tokyo Metropolitan Assembly, there was talk within the Japanese publishing industry for an industry wide self-imposed ban on all sexual depictions of characters that would appear to be under age of 13, regardless of the nature, purpose, or explicitness of the depiction. The story was broken by Takashi Hiruma, and many others followed up  on it. Here is the fax that was circulated. Fortunately, it appears many publishers were dissatisfied at such talk and the leak was the result of such discontent. Manga author Takeshi Nogami talked about this, revealing that this was part of an ongoing debate that was taking place within the Japanese publishing industry.

In March 2012, one person wrote emails to Amazon Japan, complaining that they were selling certain manga as she claimed as child pornography. She made her efforts public, and because Amazon Japan complied, the incident became an important news item. The details regarding this incident are worthy of an entire different blog entry, but it is important to note that in both cases, the question of what constitutes child pornography were completely left out. The simple accusation of engaging in child pornography, even if no real children were involved in its production, is enough to compel firms to self-censor. Part of this is the simple desire of firms to avoid being embarrassed, but another part is how advocates of censorship have been successful in combining talk of real child sex abuse with depictions of fictitious children.

Going back to topic of police authority, if the new child pornography law does go into effect, the police will have wide discretion in determining what is and what is not child pornography. The desire to control fictional depictions of sexual situations involving minors is nothing new. When Japan first enacted a child pornography law in 1999, the original draft created by the ruling Liberal Democratic Party made it clear that all depictions of sexual situations involving minors would be made illegal, even in cases where minors did not exist. The original draft covered all photographs, artwork, video tapes, and more. It was only after aggressive lobbying by concerned parties that the part about “artwork” was struck out.

Now the proponents of censorship are claiming that “international pressures” are pushing Japan to accept a wider definition of what constitutes child pornography. It is very convenient to pick and chose voices from overseas that amplify calls for more censorship while ignoring the foreign voices that call for restraint and seek to preserve artistic freedom while maintaining safety for real children.

But since the proponents of censorship have powerful advocates within the ruling party, and many top police officials have repeatedly made it clear that they seek the power to regulate depictions of sexuality in fiction, the issue not only remains active, but strikes fear within the minds of many businesses.

The power of the police to arbitrarily determine illegality is most directly felt in conjunction with Article 175 of the Japanese Penal Code, the anti-obscenity law. It is illegal to distribute obscene material in Japan, but the police continue to only selectively enforce this law while the courts have passed down guidelines that are very vague. (For those that would like additional information, I highly recommend this article by Joaquin da Silva. I would like to note that as of now, verdicts are issued by judges and not juries regarding violations of Article 175.)

This power to define legality ferments an environment where there is a strong motivation for firms to change business practices in such a way so that they can plead their case to the police as being cooperative and therefore do not warrant being prosecuted. This creates strange circumstances where some firms may decide to self-censor in ways that seem to make no sense whatsoever.

In June of 2012, DMM.R18, the adult arm of one of Japan’s largest online media distribution services, DMM.com, wrote to their content providers that they will classify certain sexually explicit fictional titles as being “child pornography” and no longer feature them on the top page, but will continue selling them. While completely ignoring the fact that Japanese law stipulates real children must be involved for something to be treated as child pornography, DMM.R18 policy writers seem to suffer a mental block as well since the law explicit states that selling child pornography is illegal. DMM.R18 further stipulated that certain key words would be censored, (i.e. grade schooler will be displayed as “XXXXX XXXXXXXX.”) To top it off, they stated that if anyone should disclose this information publicly, the restriction standards may have to be straightened.

Many content providers were offended by such brazen attempt to muzzle critics of their new flawed policy and the information was leaked immediately. DMM.R18 was forced to reword “child pornography” to “works that involve images and text that the audience would associate with minors.”

And all this happened before the LDP returned to power in December of 2012 and talk of revising the child pornography law was revived earlier this year.

Once the news that the revision was being considered, the chilling effect took hold immediately.

In late April of 2013, Taiki Nishimura, a director that has worked on multiple mainstream anime series as well as adult themed anime and video games, revealed that a distributor of adult anime requested animation production companies to refrain from making erotic anime featuring characters that appear to be minors. The distributor’s request caused some anime projects to be cancelled and certain animation production firms were stated to have gotten out of the business because of this. Nishimura further states that the distributor’s logic was that companies should refrain from producing material that could be construed child pornography as a new law was being considered, plus this would meet the needs of overseas buyers of Japanese anime. The director relays rumors that adult anime featuring housewives were going become more prevalent in the future.

Then news broke on May 24th of 2013 that Yahoo Auction (a.k.a. Yafuoku,) Japan’s largest auction site, was going to prohibit sales of all material that could be construed as depictions of minor in sexually provocative poses, regardless of whether or not the minor really exists. The detailed guidelines can be read here.

Ken Akamatsu revealed that Yahoo was willing to approach him to talk about why they made their decision. He states that he hopes to publicly disclose any information that he comes by through this meeting.

What’s even more, adult manga magazine have started to increase the size and the frequency with which the small black boxes are applied to the genitals. The standards of self-censorship to comply with Article 175 has been relatively stable for nearly a decade, giving further credence that fear and loathing against the revision of the child pornography law is real and rampant.

In the January 2012 issue of Animage magazine, attorney Takahashi Yamaguchi gave an interview where he brought up the issue of self-censorship. While the subject of the interview was pertaining to overzealous attempts of some doujinshi marketplace organizers and certain fans to curtail access and restrict content, the point he makes still holds today. Responding to how some felt things were too liberal in Japan, he states “Excessive self-censorship does not lessen restrictions on free speech. Freedom of expression is always threatened, and attempts to restrict it will probably never end. Excessive self-censorship only makes the next wave of restrictions on free speech all the more extreme.”

I fully believe this observation should be kept in heart by anybody that appreciates artistic freedom regardless of where they live, what subject matter they specialize in, and what medium them employ.