Sex or nude scenes featuring teenagers in anime and manga could disappear from the Internet and be driven into underground “dark web” sites, thanks to a decision equating art with child pornography. The decision was made by a United Nations Committee that describes itself as comprising “persons of high moral character.”
This stigma-driven recommendation that was first published today (and is due to be launched on September 26) comes despite Prostasia Foundation raising an incredible 17 thousand voices to warn the Committee that such a change would infringe human rights by trashing a wealth of legitimate art and literature.
We don’t need “persons of high moral character” nominated by governments to be making decisions about what sort of cartoons people can watch or draw. What we actually need is a community of people who are committed to preventing child sexual abuse—something that this decision will not do. In fact, it could do the opposite.
What is the decision?
In February this year, the United Nations Committee on the Rights of the Child, released a set of draft guidelines on the implementation of the international treaty that bans child pornography, proposing to expand its interpretation to include bans on drawings and stories that sexually depict minors. The Committee took in comments from the public and is currently meeting in Geneva, having just released the final version of its Guidelines.
Although the decision to equate art with child pornography was a negative one from every perspective, it could have been worse, and our advocacy definitely had an impact. Thanks to your support, we managed to convince the Committee to drop its claim that child pornography as already defined in international law includes
visual material such as photographs, movies, drawings and cartoons; audio representations; any digital media representation; live performances; written materials in print or online; and physical objects such as sculptures, toys, or ornaments.
Even while dropping this absurdly broad definition, the Committee doubled-down on its central contention that at least visual works such as drawings should be banned, and that it should be a criminal offense to possess them. This is a frightening proposition, and one completely at odds with other United Nations texts, such as the Universal Declaration of Human Rights.
Unpacking the text
The relevant paragraph of the final version of the guidelines is paragraph 63, which begins like this:
The Committee is deeply concerned about the large amount of online and offline material, including drawings and virtual representations, depicting non-existing children or persons appearing to be children involved in sexually explicit conduct, and about the serious effect that such material can have on children’s right to dignity and protection.
Let’s pause here. Although seemingly narrower than in the original draft, this still takes in an extremely broad array of material, ranging from cartoon art, to 2D animation, to adults cosplaying as underage characters. Governments aren’t meant to be art critics or dungeon monitors. The simplest and most ethical way to draw the line between what is acceptable in art is simply to determine whether it depicts a real child. If it doesn’t, it’s not child pornography. It’s really as simple as that.
There is also an unexamined assumption in this paragraph that depictions of non-existing children have a “serious effect” on children’s rights, but without stating what effect that is or referring to any sources. As we pointed out in our submission to the Committee, the best scientific data that we have suggests that depictions of non-existing children don’t lead to the sexual abuse of real children, and that they may even do the opposite—a possibility that we aim to research further.
Now let’s continue with the rest of the paragraph:
The Committee encourages States parties to include in their legal provisions regarding child sexual abuse material (child pornography) representations of non-existing children or of persons appearing to be children, in particular when such representations are used as part of a process to sexually exploit children.
The first part of this paragraph makes it clear that the Committee isn’t simply asking for drawings to be voluntarily taken down from the Internet and from bookstores. It is actually recommending that drawings should be treated in law as equivalent to photographs and videos of real children being sexually abused. Even to suggest this equivalency is shocking, especially coming from a United Nations body. It is also directly contrary to U.S. law, which specifies that the only justification for the criminalization of child pornography is that its production and distribution directly harms real children.
The remainder of the paragraph, “in particular when such representations are used as part of a process to sexually exploit children,” disingenuously spins it as a measure to combat sexual grooming. But this doesn’t stand up to scrutiny. Candy can be used as part of a process to sexually exploit children too, but we wouldn’t think of criminalizing the possession of candy. Grooming children for sexual exploitation is already a criminal offense in most countries, and if it isn’t, then it should be—but banning drawings doesn’t need to be a part of this.
What does this mean?
The guidelines aren’t binding, but they are still powerful. To understand why, you need to understand something about the Committee and how it works. The Committee on the Rights of the Child is a group of government representatives who are nominated as experts—and in a narrow sense, they are: they are predominantly lawyers, judges, and law professors, some heads of government departments, and so on.
Their main job is to regularly assess countries’ compliance with the Convention on the Rights of the Child and its optional protocols. This set of guidelines will be used by the Committee, at its own subsequent meetings, as a baseline indication of what it expects countries to be doing. Therefore, this document signals to the countries of the world that they are expected to criminalize cartoons—and that’s what they are going to do.
For example, at the current meeting of the Committee, South Korea’s compliance is being assessed. It amended its law in 2011 to equate child pornography with artistic images, and the following year there was a “22-times” increase in the number of child pornography charges brought—most of them over cartoon imagery, and many of them against women. ECPAT, the child protection organization that facilitated the development of the guidelines, lauded Korea’s laws as “very comprehensive and in compliance with the OPSC” in its submission to the Committee this year.
Although the Guidelines aren’t binding, they don’t need to be: they are still a form of “soft law.” Their impact will be real and could be quite sudden. Concretely, bans on manga and anime are likely to be the first changes that we see. But we’ll also see a lot of censorship of other cartoons, a lot of other pornography, a lot of art and literature, and a lot of sex education materials.
There are various ways in which this content will start to disappear. In some countries, there are already regimes of official Internet filtering or, at least, “voluntary” filtering, which may or may not be limited to child pornography. This will be easy to expand, and governments will welcome the opportunity to set that precedent.
Laws will also change to ensure that anyone possessing banned literature can be charged as a criminal, payment companies will stop accepting payments to purchase such content, titles will be deleted from app stores and removed from libraries, and an entire generation of content creators will be silenced from addressing sexual themes in works about children or teens.
Who will this affect and how?
The people who will be most affected by the Committee’s decision are not, perhaps, widely regarded as “people of high moral character.” They will include artists, fans, sex educators, sex workers, and the LGBTQ+ and sex-positive communities. We’ve already seen wide censorship of these groups in the wake of FOSTA. Get ready for more.
We’ll also very probably see greater consumption of illegal sexual images of real minors. Why? Because equating such images to cartoons sends the false message that they are equally bad to access and share. They are not. Drawings, at their worst, can be gross or unsettling; photos and videos of children being sexually abused are crime scenes. Treating the two types as equivalent is abhorrent.
Yet that is the message that the Committee’s decision is sending fans, some of whom will certainly attempt to access banned cartoons on dark web forums where far worse materials are shared. From the perspective of an organization dedicated to the prevention rather than the promotion of child sexual abuse, this seems like a less than sensible approach.
What happens next?
Since the Committee wouldn’t listen to us, we are going above its head. On October 4, we will be attending a conference on Digital Free Speech Issues in Korea hosted by United Nations Special Rapporteur on Freedom of Expression and Opinion David Kaye and presented by Open Net Korea.
Astonishingly, there is not a single mention of freedom of expression in the Committee’s Guidelines—a fact that we imagine the Special Rapporteur might take note of during our discussions. If he determines that the recommendation given by the Committee would contravene international human rights standards, then that could considerably weaken them and further delegitimize the Committee’s views on censorship.
Equating art to child sexual abuse is wrong, and it’s also against the Constitution and international human rights law. Next month, we’ll be exposing the guidelines for the mistake that they are. We ought to be putting all our efforts into preventing the abuse of real children, not wasting them on censoring drawings.