Have a writ sandwich, Hairshirt Hamilton

I’ve cross-posted this both here and at Catallaxy. It’s important because it has the potential to influence the way advertising and marketing is perceived in all sorts of ways. I’m interested to see what libertarian parents think of the issues raised…

Couldn’t happen to a nicer bloke:

In what is believed to be a world first, David Jones begins a legal case tomorrow in which it is suing the left-leaning think tank the Australia Institute and its executive director, Clive Hamilton, over claims the giant retailer’s advertising eroticised and sexually exploited children

The case, in the Federal Court in Sydney, is thought to be the first time a court will consider the sexualisation of children in advertising.

The retailer is suing under the Trade Practices Act, claiming the institute engaged in misleading and deceptive conduct. The avenue of suing for defamation was closed to big companies after the introduction of uniform defamation laws in January 2006.

The case stems from a media release in October titled “Corporate paedophilia – sexualising children by advertising and marketing”, which announced the launching of a discussion paper. The release named retail chains such as David Jones and Myer as having “jumped on the bandwagon” in eroticising children in the interests of the bottom line.

It’s about time we had this conversation. A forensic analysis of just what advertising can and can’t do is sorely needed, and if ever a case is destined to be a ‘battle of the experts’, it’s this one. Oliver James, Clive Hamilton and others like them have made large claims about the capacity of advertising to achieve non-sales outcomes (and, by extension, negative consequences). However, various small studies seem to indicate that advertising is good at raising product profile and sales, but doesn’t actually do much else. Cultural studies theorist Greg Dening had this to say about one particularly well known advertising campaign:

Some years ago, the Commonwealth Government tried to educate the Australian public to the dangers of AIDS by creating some theatre in a television clip. Death, the Grim Reaper, was shown as a figure playing ten-pin bowling. The bowling pins were men, women and children. They bounced and clattered away randomly as death scored. There was some alarm expressed at the time at the brutal starkness of the advertisement. Many felt it was too shocking. It was overkill, some said. Then we learned in the weeks that followed that the chief effect of the advertisement was a sharp drop in the membership of ten-pin bowling clubs. It is a depressing story for anyone who thinks that writing history is theatre. How does one produce the effects one wants in one’s stories? Presumably, if one knew that, one could rule the world or at least sell a lot of something. Maybe the answer is that one can never be sure of producing the effects one wants.

Interestingly, David Jones have wheeled out section 52. This is the classic ‘misleading and deceptive conduct’ provision, and is more typically deployed by weaker parties against those in stronger bargaining positions. It has come to operate as a stand-in for contractual misrepresentation at common law, mainly because the remedies available for breach (under sections 80, 82 and 87 of the act) are more wide-ranging and better able to be tailored to individual litigants’ requirements. It is a major part of Australia’s consumer protection law, and has been effective in a Hayekian jurisprudential sense because it mimics the abstract, end-independent qualities of the common law.

Of course, the usual lawyerly caveats about ‘giving them oxygen’ apply. If the Australia Institute report in question was well known before the suit, it is exceptionally well-known now. However, as someone with a long-term interest in the capacity – first articulated in Plato – of visual stimuli to shape peoples’ minds (and particularly those of children) more generally, I know that much of the debate around censorship turns on a detailed understanding of just what things like advertisements can do.

Now all parties are put to the proof. It should be interesting.

62 thoughts on “Have a writ sandwich, Hairshirt Hamilton

  1. Up the dose again Parkos. Still not working.

    Did you know your email address is identifiable? Those are defamatory comments you are publishing.

  2. You have to be white to get a redneck..
    You are Australian its therefore a misnomer
    Remember the Battle of Brisbane

  3. Parkos
    What did I tell you about free diving? You’re not supposed to land on your head. That neural implant has dislodged and come out your nasal cavity again, hasn’t it?

  4. The biggest and most important city in the region, Jakarta, is flooded and you want to discuss a minor advertising incident which DJ’s should have let lie.

    Some think tanks must be impreganable fortresses against awareness..

  5. Soony,
    This talk of neural implants reminds me of the days when you had quite a reputation worldwide as a 9/11 conspiracy theorist, you were one of the leading tinfoil hats a USyd ..
    What happened? Why did you drop out?

  6. “no, Jase, it is an ocean/sea underwater sport”

    So why do you insist on practising it at Niagara Falls?

  7. Some of Australia’s best paid psychologists are paid to make people unhappy: they work in advertising. J. B. Watson, a founder of behaviorism, left academia to take up a post as an executive for an advertising firm. Advertising works in more ways than just sales, any message put out there has the ability to change our behavior in unexpected ways. In Sweden it is illegal to aim advertisements at under 12s. Lot of good psychological sense in that. To fully appreciate the power of advertising you need to read psychology and a lot of it.

    Children are entering puberty at earlier ages, the reasons for this unclear. I have seen studies suggesting that good milk intake in early years facilitates early puberty, as does good nutrition. I doubt advertising is playing any role in this. The argument will be to the effect that these advertisements are sexualising children and from a biological perspective that is a little silly because we are “sexualised” in the womb.

  8. Obviously children should not be involved in sexual acts or be subjected to the sexual advances of adults. However children are sexual beings with sexual thought and sexual initiative. Any parent (with boys in particullar)will note the delight with which they make joyful public explorations of their anatomy (often to the parents embaresment). So children are naturally sexualised.

    When it comes to eroticism and marketing I think that for products pitched at adults there is definite incentive to eroticise men and women and by association the product. Erotic generally means exotic and it is the quest for the exotic that keeps the fashion tredmill alive. This works however because adults want it and adults have consumer power.

    It is unclear to me how a business like David Jones would benefit from eroticising children. Such a strategy would seem to work only in so far as parents want their children to appear erotic and I doubt that many parents want this. Of course children enjoy playing at being adults and mimicking adult behaviour and most parents find this cute within certain bounds. The idea that David Jones would deliberately go beyond these boundaries to groom children for sex seem incredibly unikely and I can fully appreciate why staff and management would feel offended. I would think this court case is about protecting staff morale as much as defending the brand.

  9. If people are so worried about the sexualisation of children then how on earth did we put up with Barbie dolls for so long?

  10. And these don’t represent a sexualisation of our behavior????

    girls play with Barbie dolls, dead soul. I played with toy soldiers when I ws a kid.

  11. Girls like to dress up their dolls. What’s this to do with sexualisation? Grooming is part of civilisation.

    If Barbie dolls were made for grown men to get their kicks out of I could understand where you’re coming from.

  12. Grooming is part of civilisation.

    I think grooming predates civilisation. Most animals groom and most social animals groom eachother. We probably groom eachother less than most other primates.

  13. “We probably groom eachother less than most other primates.”

    Well Jason has been groomed online before but he is of an age to make his own decisions.

  14. Thanks for your input, Terje. I was hoping you’d have something to say. As I’ve commented over at Catallaxy, I’m now less sanguine about using the courts to resolve knotty social problems for us in this way. It’s not that they can’t, it’s more a case that they shouldn’t, because it’s not what we have courts for. I must admit that – when I wrote the post – I had the typical lawyer’s faith in the court system to do a nice job with a juicy piece of litigation. Jason then made an excellent point about using the courts to deal with issues we should have the maturity to thrash through in debate.

    That said, use of the tagline ‘paedophilia’ was exceptionally dumb on the Australia Institute’s part.

  15. Jason then made an excellent point about using the courts to deal with issues we should have the maturity to thrash through in debate.

    In terms of the public debate I think DJs has argued well. However I can also understand why they are now going to court looking for blood. Telling their staff just to cop it sweet is not good form. It makes sence to take an aggresive posture. However I hope that the court comes to the same decision as Jason.

    I don’t know the relevant laws well enough to offer any prediction.

  16. heck, grooming is the wrong word.

    girls like to play with clothes and design. I see nothing sexual about barbie dolls.

    I subjected my toy soldiers to countless atrocities, doesn’t mean I wanted to kill anybody.

    these are just gender specific forms of playing with the imagination.

  17. All that high minded stuff is good, and I don’t disagree, but I still have a sneaking desire to see Mr Hamilton lobbed with a big damages bill plus legal fees. It would make my day.

  18. Obviously, influence and advertising don’t involve force.
    I’d say the making of child pornography is wrong in all cases.

    Pornography definition: “Sexually explicit pictures, writing, or other material whose primary purpose is to cause sexual arousal”

    David Jone’s primary purpose is to sell clothes. I strongly doubt the children and their parents involved in the ads were intending on causing sexual arousal.

    The conscious mind can always over-ride an advertisement message, no matter how good the ad. Subliminal advertising has been shown to be ineffective and is hardly ever used anymore.

    Advertising lets people know about your product and often sets up emotional triggers to go with the product. But people are not in reality slaves to their emotional whims.

    I think kids model themselves on adults they see in the media. The Paris Hilton range of clothing is very popular with younger girls. They see a carefree person that society tells them has a lot of fun and they want to dress like her. If their parents let them, they will. Later they’ll realise that she’s a moron, and will change their clothes. What’s the problem with this?

    An important point is that even if advertising influences society’s values, people always have to take self responsibility and not violate other’s rights. eg/ You can never blame the child for an act of paedophilia.

    Dakota Fanning acts in a movie screening at Sundance festival where she is “raped”. (I think she’s 12 years old). Christian groups are calling for child pornography charges to be laid on the movie director. Dakota says “It wasn’t real, it’s only acting”. I agree. Acting is acting and can be left to parental consent. This movie is not meant to be pornography. It deals with real life issues, and art is a reflection of real life. Dakota won’t grow up thinking she did a porn piece. She’ll grow up thinking she did a hard hitting drama that confronted a criminal act that happened to be sexual.

    I think the psychology of people who draw attention to this kind of thing is similar to the psychology of that Muslim cleric insinuating that women who dress in skimpy clothing are to blame if they get raped.
    If a women walks down the street naked with a suggestive smile, she’d expect to get more male attention but no one has the right to rape her.

    Historical control on sexuality has been catostrophic to many people. Missionary position only, no masturbation, every sperm is sacred, shame, guilt etc all led to unnecessary unhappiness for many people. This extreme control never stopped paedophilia, so why would a lesser version of control? Personally I think the oppresion actually created more paedophilia by associating negative emotions with what should have been enjoyment and by demonizing a basic human need. But I can’t prove this except to say that paedophiles are commonly school chaplins or church leaders (if you believe the media anyway which in this case I do).
    Psychologists can’t tell us what makes a paedophile in every case but I suspect a sexually oppresive society creates more. Regulation of advertising deemed to be sexual is a low level version of state sexual control and I’d be surprised if it had any reductive impact on paedophilia.

  19. Unfortunately for DJs, even if they were correct in claiming damages, they dont have the intellectual or judicial muscle that Hamilton can muster.

    BTW If you live in Australia and you annoy me online without a brain like JC, you are a troll.

    My family named this country and if you dont like it you can go into international waters and pretend to be Ukranian for a living.
    I will be over later with a bunch of native flowers and three bottles of reisling skeptic becuase you are a feisty one!

  20. Yeah Parkos and your grand-dad was Christopher Columbus.

    How are your three professorships of Cheiromancy at Maharishi University going BTW ? Have they sent you off to retirement with a complimentary enema yet?

  21. John

    Seriously, I am not offended by him, but for the good of the site can you please remove Parkos and ask him never to come back. The guy is totally useless. He thinks we want to know that his family or whatever named oZ…. as though anyone at this site would even give a shit.

    Please remove the fool.

  22. He was over at Leftwrites suggesting they too ought to be worrying about the floods in Jakarta. The guy is a complete nimbus and 1/2s the IQ wherever he goes. No one would think less of you for removing this useless twerp from the site.

  23. No John, can’t we keep him as our little pet to kick around after a heavy discussion with Dead Soul? Please? Can we? Can we?

  24. Girls like to dress up their dolls. What’s this to do with sexualisation? Grooming is part of civilisation.

    Point taken Jason, perhaps I’m overstretching the idea of sexuality, but to me grooming is part of sexuality.

  25. Parkos — please stop your trolling. We are quite tolerant of criticism and different views, but we do want to maintain some minimum levels of behaviour and I would ask you to respect them or stop posting. Thanks.

  26. Politeness appreciated John,
    and I realise you are
    styling this website differently to others.
    So you were at the Maharishi University for real?

  27. I think Parkos is missing a chromosome

    I was thinking exactly the opposite, one too many me thinks.

  28. Clearly made a direct hit above with the edited comment number 3. If it needs stitches there is some accuracy.

  29. In recent days I happen to comment to my wife (74) that I find it inappropriate that women are appearing on television in their underwear.
    Sure, I admit that looking at a beautiful woman is not something I shy from. Albeit more of recent times, and because it is dished up, but quite frankly I for one hope none of my daughters and/or granddaughters will end up parading in their underwear on television or elsewhere.

    Perhaps the word discreet is not common any longer.

    My eldest daughter proudly announced I could see my daughter on a website in family photo’s. I logged in and there she was with mum and day near a swimming-pool shown frontal in the nude. I was furious about this and urged the removal of the photo’s and explained that this is not the kind of photo that should be displayed.

    Advertisers may like to display pictures of children, even so fully dressed, as to sell their wear but no matter how innocent the intentions may be, we must look at how can it be misused in the way society now is.

    Corporate responsible conduct must be applied. I for one see no justification to have children displayed in ways that may attract the wrong attention. Businesses using children for advertising purposes must keep it in mind that others may wish to misuse the publications, hence, be careful how they publish children.

    I take the position there is a time and place for everything. A woman sitting at the beach in a bikini may not be noticed, in the midst of everyone else doing it, however, if she were to parade in such manner in a shopping center then it may be deemed inappropriate, because of different circumstances.
    We cannot expect children to have the kind of knowledge to make judgment if a particular picture of them will be appropriate. Businesses must not exploit this, but must set boundaries as to what is deemed responsible advertising and what is not.

    Shooting the messenger, so to say, isn’t going to resolve the issue. Those who criticize in good faith should be understood not being crucified. As Author of INSPECTOR-RIKATI® book on CD series, I am too much aware that there are standards to be set as to what is appropriate and what is not. When I write articles about someone I always desire to give the subject of the article an opportunity to respond, and then publish their response together with the article and leave it up to the Reader to determine what they conclude from it all. When making a complaint to a business, I let them know I will publish the complaint and invite them to respond so their response can also be published.

    When seeking to access the link of the Australian Institute as to the article concerned, not being a member I was denied access. As such, I do not know if David Jones was given an opportunity to respond and if they did their response was included in the article. Now, to me it then becomes an issue if the information is merely as a product to sell, and hence the criticism regarding the abuse of children is in reality merely a “product” and as such David Jones entitled to challenge the product. I view, if the article was available freely to anyone, as a public criticism then I would not particularly have had an issue with it, however, as it might be an article only available against a purchase price then I do not see it as freedom of speech article, and hence David Jones may be justified to challenge the article, regardless if the children are or are not exploited. It is the article that ought to be seen if it is fair.

  30. Oops, an error in the previous posting’

    Where it stated;

    QUOTE
    My eldest daughter proudly announced I could see my daughter on a website in family photo’s.
    END QUOTE

    This ought to be;

    My eldest daughter proudly announced I could see my granddaughter on a website in family photo’s.

    Apology for the error.

  31. Mr G.H.Schorel-Hlavka,

    I don’t think anybody will get shot or crucified over this. Just publicly refuted. A vigourous public debate is not a violation of free speech principles. It is in fact a rather health aspect of liberal society.

    Do you think DJs was right to take this to court? What do you think the court outcome should be? And what should happen to daughters that post naked photos of granddaughters on the Internet? In essence what should be done and who should do it?

    Regards,
    Terje.

  32. People, all the personal argument is tedious and boring. Cut it out and if you have nothing intelligent to say, go away.

    I once read that the average age of puberty in girls in the western world has fallen by about three years in the last century. This is one of the major developmental change in the human race in the history of the world.

    It also means that the age of consent was fixed at 16 when the average age of puberty was about 15. But now it’s about 12, and that’s only the average. In my work last year I met a mother and daughter, both of whom had reached puberty at age 10.

    The hysteria over ‘paedophilia’ has now reached the stage where in my home town, parents are not allowed to take photos of their own children – fully-clothed – at the school concert. The given reason was something to do with ‘child pornography’. If that’s not a sexual perversion, I don’t know what is, but in this case it is entirely an artefact of the welfare state.

    For purposes of a discussion of sexuality, it is quite absurd to confuse the two categories of pre-pubescent babies, and post-pubescent teenagers who are developmentally mature, with fully functioning reproductive organs, and the full adult suite of sexual organs, hormones, neural circuits, thoughts, feelings and behaviours.

    Many, if not most, of the cases of so-called child sexual abusee involve consensual sex with sexually mature females above the age of puberty but below the age of consent.

    I have friends who work in the government department that adminsters the laws against child sexual abuse. I said to them ‘Come on, what percentage of these cases would be teenage girls having consensual sex with their boyfriends.’. They looked embarassed. ‘Oh, about 80′ laughed one. The other one slapped her and laughed ’95, more like it’.

    To confuse the categories of ordinary human sexual behaviour between consenting sexually mature people, with the violent rape of a baby, seems to me to be moral and intellectual mendacity, and itself a kind of sexual perversion.

    The problem with the laws on so-called child sexual abuse is that they wrongly assume that sex is intrinsically and necessarily abusive, for no other reason than that one of the participants is under a chronological age arbitrarily chosen, and bearing no logical relation to developmental maturity. According to their logic, if the age of consent, which is admittedly arbitrary, were fixed at 21, then consensual sex by 20 year-olds would be ‘child sex abuse’.

    The laws are also abusive because many young people, who have reached puberty at age 11, or 12, by the time they are 13 or 14, consider themselves ready to have sex, see no reason why they should have to wait for 2 or 3 years, and do have sex and are not harmed by it any more than other sexually mature persons. They then have welfare agencies hounding them pestering them with impudent questions about their sex life. It is almost always girls that people report not boys. So these girls then have the prerogative to persecute their boyfriends by having them charged with a serious criminal offence – all aided and abetted by the welfare state.

    Laws prohibiting sex above the age of sexual maturity are laws of sexual morality, not of child protection.

  33. JJ

    the problem is that the law cannot be exacting as you want it. I am not sure where are you trying to leave this? Are you suggsting that it would be ok for say a 14 year to have sex wih a 30 year old?

  34. The whole area is such a thornbush of sheer blind prejudice, I would rather hear you give a coherent rationale for the existing laws, or for the criminalisation that you are in favour of.

  35. JJ

    Please don’t misunderstand my comment. I thought yours were very well thought out and got to the real issues.

    Look I accept that kids these days reach puberty a lot earlier than they used to which probably has a lot to do with better more readily available food.

    However, in certain ways kids are far less mentally mature than they were when in the old days 12 year olds would get on a boat and leave for America from the old country. Those kids were grown up then. On arrival they would find a bed and go to work for $1 dollar per week. I had a grand father who went to Argentina when he was 12 by himself because he was told by his parents that there was no food for him any longer.

    Can you see these well pampered princes and princesses doing the same thing? I don’t. So I’m thinking mental maturity hasn’t progressed with physical maturity.

    I am not sure that lowering the age of consent will help things.

  36. It’s pretty simple.

    Laws are not perfect, we’re aware that the age of consent may not apply in all case. All we know is it should be set sometime after puberty. The discretion allowed to judges in sentencing gives us some flexibility in dealing with individual cases but unfortunately once we set a number we have to enforce the law.

  37. I think that having a legal age of consent set at 16 rather than “at sexual maturity” makes a lot of sense. In fact I would set the limit at 18 simply because I think we should have some consistency about defining when a person becomes an adult. Sex below 18 could be dealt with by judges discretion and personal discretion (ie don’t tell and don’t get caught). Sure such lines are arbitrary however their simplicity provides people with a lot of clarity.

    Legally there should be a consequence for crossing such a line, however the consequence should depend heavily on the nature of consent as well as any issues relating to positions of trust. And for minor breeches of the age line the courts should only really get involved if one of the parties (or their legal guardian) regards it as appropriate.

    As for Justins statistics on child sex crimes I think these should be better published (if they are not already).

  38. I have a lot of sympathy with what JJ wrote… though I’m not sure that I can think of any appropriate resolution with regards to the legal age of consent.

    JC asks about a sexual relationship between a 30 & 14 year old. Most people would find that age gap confronting. But under the current system it is illegal for a 16 & 15 y.o. couple to have sex but it is perfectly legal for a 50 & 16 y.o to have sex.

    In some states in America they have introduced “romeo & juliet” laws to cater for the 16/15 example.

    One important move we could make now is to be more clear about the distinction between illegal sex and child sex crimes.

    Recently I was thinking about the idea that a child can legally declare themselves an adult at any time and be treated as such (including their choice about sex).

    Effectively we could treat them as being part of an implicit contract with their parents & government as soon as they are born (Parent protect child; child obey parent; govt treats child differently) and they can renounce that contract when they choose. A more moderate alternative is that they can apply to a court to “divorce” their parents if they can show a sufficient level of maturity.

  39. At 16 you can legally exchange bodily fluids (and risk pregnancy or STDs) but you can’t legally drink alcohol, smoke tobacco, gamble or visit a strip club. If we are going to protect teenagers from self harm I would think sexual encounters pose a more immediate and enduring risk than any of these other activities. I personally think that parents have the primary responsibility for protecting children from themselves, however in so far as the state does get involved it should do so with some semblance of consistency and logic. Rather than yielding to pressures to lower the legal age of consent it makes more sence in my view to moderate the sanctions involved.

    I don’t agree with using the courts as an early gateway into adult status. I don’t think the real need is great enough and I think that there are two many downsides. Not least being the potential rift between parents and their offspring through court based power struggles. I suspect also that some parents would use it as a way to wash their hands of responsibility. The family law courts have not historically delivered satisfaction to those involved.

  40. The smoking age used to be 16… did they change it?

    You have to be 17 to get a drivers licence, 16 to fly an airplane solo with a student’s licence and 17 to get a full flying licence. The age for being able to watch non-kiddy movies is 15.

    I’m not sure if we need to bring all of these age limits into line… but if we do, then I would prefer that they were relatively low. There is already some support for allowing those >16 to vote and most 16 & 17 y.o’s already have access to alcohol.

    Of course, these are just the legal minimums. Parents can create additional home rules if they want.

  41. In NSW the law says you can not sell cigarettes to those that are under 16. Presumably you can sell them sex.

    The age limit to watch adult movies (R and X) is 18.

    I agree that these things don’t all need to line up. However their currently seems to be a lot of inconsistent logic.

  42. Bush and the Republicans were not protecting us on 9-11, and we aren’t a lot safer now. We may be more afraid due to george bush, but are we safer? Being fearful does not necessarily make one safer. Fear can cause people to hide and cower. What do you think? How does that work in a democracy again? How does being more threatening make us more likeable?Isn’t the country with
    the most weapons the biggest threat to the rest of the world? When one country is the biggest threat to the rest of the world, isn’t that likely to be the most hated country?
    If ever there was ever a time in our nation’s history that called for a change, this is it!
    The more people that the government puts in jails, the safer we are told to think we are. The real terrorists are wherever they are, but they aren’t living in a country with bars on the windows. We are.

  43. There is certainly an inconsistency between legal ages for different activities (sex, drinking, voting, movie ratings, etc), but I see no reason these should all be set to the same value.

    I certainly don’t think that 16 year olds should be able to vote, since they are (generally) not contributing members of society. Yeah, sometimes they’re not after that either, but it’s never going to be perfect.

    I don’t agree that age of consent should be increased as terje suggested. If there was going to be a change to the age of consent laws (to decrease) based on “physical maturity”, then I think the aforementioned “Romeo and Juliet” laws might be in order.

  44. The problem with the Romeo and Juliet laws is that they enshrine in law a particular sexual morality, and there is no reason based on child protection why those who don’t want to comply with them, should. It would be like a religious party succeeding in criminalising adultery: they might think it’s offensive, but why should other mature and consenting people be forced to complywith them just because they think so?

  45. I don’t disagree with your point that the difference between 16-15 y.o relationship and a 66-15 y.o. relationship is a moral distinction (albeit a widely shared one)… but in reality allowing romeo & juliet laws at least prevent a significant number of normal people being classed as criminals.

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