In the light of the recent arrest of a doujin artist on obscenity charges we take a look back at the past five years in the history of free speech regulation and litigation vis a vis drawn pornography in Japan. We examine the current state of affairs and speculate as to the fate of the free speech right enshrined in article 13 of Japan’s constitution, one that now seems to rest on a very fragile footing indeed.

Laying the Groundwork: Misshitsu

A history of legal developments in the realm of free speech in Japan as it relates to fictional drawn media is hard to trace due to the complex language involved and the lack of civil liberties defense organizations in the country, specifically a corollary to the American Comic Book Legal Defense Fund. However, there is evidence of concern online since at least 2002 and the foundation of the Save the Otaku Webring (the webring host has since disappeared). That initial concern was sparked by fears that “reduction of harmful influences to youth” laws being enacted throughout the country would have a stifling effect on fictional art. In coming years those concerns would be seen as tragically prescient.

the first manga to be banned on grounds of obscenity, Beauty Hair's Misshitsu
Beauty Hair’s

The first challenge to freedom of artistic expression came in the fall of 2002 in the form of the arrest of manga artist Beauty Hair as well as the president and editor in chief of Shobunkan Co. for the publication of eromanga compilation Misshitsu. This was the first ever arrest on obscenity grounds of a mangaka, and resulted in a prison sentence (later reduced to a fine) for the publishing house president. Icarus has coverage of the recent developments in the case, as does ComiPress. As Simon of Icarus points out, Beauty Hair is still active and his more recent work is readily available (albeit highly censored compared to earlier fare). presence at an anti-JSDF Iraq mobilization protest in 2004 at a
2004 Iraq war protest

Interest in the preservation of free speech in manga was renewed in 2003-2004 by the Yamaguchi Takashi / petition drive against “wholesome lifestyle promotion” legislation enacted by the Tokyo Metropolitan government; the prominent presence of this banner at Comic Market 65 and other events around that time caught the attention of many, though the ultimate effect of the campaign is unknown. ceased activity in early 2004, and by the middle of the year most activity on the broader manga free speech front had also ceased, and has since dwindled to almost nothing.

Otaku Bashing News

The only site still actively promoting the 2D free speech agenda is the AMI-Web Network (AMI for “animation, manga, and interactive-game”), which hasn’t had a top page update in more than two years, but keeps an up to date news BBS and has been active in distributing surveys regarding free speech in fictional media to candidates for diet elections (most recently the July 29th, 2007 upper house election). Results of the most recent survey can be found here. It seems that the only party willing to consistently give them the time of day is the Japanese Communist Party, members of which generally respond favorably to the free speech position. Another currently active source of political news relevant to free speech interests is the Otaku Bashing News blog, though the author seems primarily engaged in raising awareness and not promoting policy.

The Doujin Arrest

On July 5th, 2007 the Japanese association of doujinshi publishers presented clarified guidelines regarding the publication of adult material (Canned Dogs scoop). The clarified regulations apply to all adult-oriented doujinshi published in the country, and can be found here (August 27th, 2007 revision). A direct translation of the clarified guidelines follows:

The member companies of the Japan Printing Association would like to make the following requests of those producing doujinshi and etc. containing sexually explicit materials:

1. We cannot print items in which “obscene drawings” are present. Please avoid the graphic depiction of genitalia and detailed portrayal of the point of union during sexual intercourse. Where these subjects are depicted, please hide them through the use of censorship. The perception of the “intent to censor” in these cases is of utmost importance. Therefore, we recommend the use of black or white [zones] to clearly indicate the censorship. Please keep in mind that the perception of a weak intent to censor can be dangerous. Especially with the recent trend toward digital production, even if the intent to censor is present in such works the danger of them being perceived as “obscene drawings” has increased. Please take the time to rethink your own censorship procedures. Examples of techniques perceived as “weak intent to censor” include the usage of transparent analog screentones, the digital application of fine-resolution mosaic (especially to color images of flesh tones), grey overlays, and halftone overlays. These methods have the strong chance of being perceived as “obscene drawings”. Should you be unsure whether your work falls within these guidelines, do not fail to consult with an Association member print shop.

2. Each prefecture has passed laws governing the regulation of minors, and common among them is the provision that “material unsuitable for the viewing and/or reading of youths under age 18 must be clearly labeled as such.” This provision establishes the principle of voluntary restraints in regard to “harmful books”. Based on your own judgment, it is your responsibility to determine whether your work falls into this classification as harmful to minors and should be labeled accordingly. Simply because matters of a sexual nature are discussed does not automatically mean a work is “adults only”; however if you are not sure you should err on the side of caution and label it as such. The “adults only” mark acts as your declaration of intent not to distribute to or allow the viewing of the work by minors; as such the mark should be clearly displayed on the book’s cover. Should your book be deemed inappropriate for minors, its distribution or active display to them is punishable by law. Regardless of labeling, [the distribution or display of] “obscene drawings” is also punishable by law [see point 1].

3. You must without fail include the following information within each book: circle name, [circle] contact information, publication date, and printing company name. The act of public expression bears with it responsibility to society for that expression. If the party upon which that responsibility falls is not made clear, it will be seen as a lack of intent to accept responsibility. Depending on the circumstances, should it be deemed that you are intentionally avoiding responsibility, it is possible that you will be subject to severe legal action. Please avoid thinking that “it’s only a meaningless credit”. Additionally, in this day and age when the dissemination of personal data is a serious problem, we understand that circles wishing to hide their home addresses are increasing in number. In that case, please include your circle website URL or email address instead.

Zepy of Canned Dogs speculates that these reinforced regulations were announced following the commencement of actions that resulted in the arrest of doujin author Yasamata Shiyami last week on obscenity charges, presumably prompted by his scanty genital censorship and/or lack of “adults only” label on the covers of his books.

Following the recent tightening of regulations at Comic Market, news of this arrest has the doujin community buzzing. While it seems that the new printing guidelines may provide a clear bulwark against prosecution for circles who follow them to the letter, Simon over at Icarus points out several of the inconsistencies in logic leading to the prosecution of not only the doujin author but the printer and bookstores who sold his work. It is clear that there is no established standard either for “obscene drawings” or what constitutes “harm to youth”, or what measures must be taken to protect them from exposure to it.

Like the Misshitsu case is this just another highly publicized spasm of an ineffectual police force looking to pad its resume at the expense of easy targets, or does this represent a de facto shift in policy toward 2D art arbitrarily dubbed “obscene”? This is the question on the minds of many, and the environment of tension that surrounds this post as it is written today. With standards of prosecution that conflate obscenity with inappropriate exposure of minors to adult material it is unclear whether a coherent position on the government’s part will ever emerge; to this end it seems imperative that further self-policing action is required if the status quo is to be preserved against this amply documented swell of paternalistic political influence.

What can be Done?

Given the current political climate, without action on the part of free speech advocates it is likely that prosecutions based on prefectural youth protection laws will continue, and the conflation of “obscenity” with the illegal exposure of adult material to minors will also increase. This isn’t hyperbole; a list of such cases waiting to happen can be found in the Tokyo Metropolitan government press archives, where monthly meetings chronicle several volumes of media – films, magazines, books, and etc. that contain “the potential to be harmful to the development of youth” (the most recent examples, from August 2007, can be found here). Any one of these could turn into another Misshitsu case, or worse.

In my opinion it is imperative that Japan’s adult fiction industry take strong preemptive steps to reduce the likelihood of such cases reccurring. Possible courses of action include, but are not limited to:

  1. Strict adherence to the printing industry guidelines described above. This is ground zero, the only potential defense currently afforded artists striving to exercise their rights of expression. The envelope isn’t ready to be pushed yet, and in a legal system with a 99%+ conviction rate it’s better to be safe than sorry.
  2. A highly organized and disciplined campaign of strictly regimented prohibition of sales and other exposure to minors. This should include ID carding, blatant labeling and protective packaging, physical barriers in shops, carding at doujin conventions, and etc. When properly mobilized Japan is capable of necessary action such as this in a very short time frame, and while inconvenient for all concerned such preemptive controls are superior to the looming specter of a crackdown. This could possibly be extended online as well – a few lines of code voluntarily inserted into adult websites to make them easy to blacklist with parental controls software could go a long way (though enterprising kids could just as easily code a browser designed to surf such sites specifically…).
  3. A political and social action campaign of awareness of free speech issues. There are many rhetorical devices available to the proponents of free speech, which when used in concert with a program of responsible adult access as outlined above could form a convincing argument. Comparisons can profitably be made to other age-controlled substances such as alcohol and tobacco, as well as arguments regarding detrimental effects to society from the slippery slope of curtailments to free speech and the lack of causal evidence linking consumption of adult-oriented media to criminal behavior.

What you and I can do as (mostly) non-Japanese citizens is less clear. We can watch, and wait, and advise, and express concern and support for our Japanese brothers and sisters in arms. It’s ultimately their fight, but perhaps just the knowledge that we’re out here will help convince them that it’s one worth winning. If nothing else I hope that in some small way the scratchings of the surface of the issue presented here will help spark further dialogue and awareness among fans of Japan’s two-dimensional adult media around the world. I often say this, but this time it’s more urgent than most: we’ll keep you informed on this issue as it develops.

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Shingo is a fan of fictional adult media who believes that just as the sexual abuse and exploitation of children is abhorrent and reprehensible, there are varieties of speech that are not appropriate for the consumption of children in the course of their development into rational actors and functioning members of society. He believes equally that unabridged freedom of speech is vital to a vibrant, free and democratic society and that the exercise of free speech rights by responsible adult individuals is not a crime.