Classification of 'Viva Erotica'

An online company called Adultshop.com - which sells sex films etc - produced a film to test the film classification guidelines in Australia. The film, Viva Erotica, is a 98 minute compilation of six vignettes of various 'real sex' scenes taken from X18+ films. It was rated X18+, in 2006, by the Classification Board because it contained actual explicit sex scenes.

Adultshop.com wanted an R18+ rating for the film. To qualify for an R18+ rating, the sex scenes must only be simulated, not real, according to the Guidelines.
[Read the Guidelines for Classification of films and computer games - click here .]

Following the Classification Board's decision to classify the film X18+, the company took their case to the Classification Review Board in 2006, then to the Federal Court in 2007 and finally appealed to the full bench of the Federal Court.

The company has almost exhausted its legal avenues of appeal. We are pleased to report that, in May 2008, the full bench of the Federal Court rejected an appeal by Adultshop.com against the classification of Viva Erotica as X18+. The only avenue left is an appeal to the High Court.

During the legal battles, various groups have acted as 'interested parties' or 'friend of the court'. These include the NSW Council of Civil Liberties and the Australian Family Association. The AFA solicitor, Damien Tudehope, presented arguments for keeping the rating at X18+ - a strategy we endorse. Read the AFA report following the first Federal Court decision. Click here .

An detailed outline of the decisions and appeals

The film
The company, Adultshop.com produced a film containing actual sex scenes and then submitted it to the Classification Board for them to give it a classification rating.

Films with actual sex scenes should be classified X18+ if they contain actual sex scenes - they cannot be sold in Australia except in the ACT and the NT - they can be sent by mail order from the two territories.

The Classification Board decision
The OFLC made a decision to classify the film X18+ in 2006.

Classification Review Board
Adultshop.com objected to the classification - they wanted it to be rated R18+. They also objected to the label 'explicit sex'.
With an R18+ rating it could be sold in regular video stores and adult shops and shown at movie theatres.

In November 2006, Adultshop.com appealed to the Classification Review Board.
The Classification Review Board announced that Adultshop.com had applied for a review of the classification on 15 November 2006:

Media release: Review announced for the film Viva Erotica

On 7 December 2006, the Classification Review Board released its decision, reaffirming the X18+ classification.

Review Board determines Viva Erotica X 18+
7 December 2006 - MEDIA RELEASE
The full seven-member Classification Review Board has determined, in a unanimous decision, that the film, Viva Erotica is classified X 18+. Films classified X 18+ carry the consumer advice, "Explicit sex"....

FULL DECISION: click here (9 pages, pdf)

Federal Court
Adultshop.com then took the case to the Federal Court seeking a review of the decision made by the Classification Review Board.
Justice Jacobson heard the case on 6 September 2007.
He handed down his decision on 29 November 2007. His conclusion: "All of the grounds of review fail. The orders I will make are that the application be dismissed with costs."
The decision provides an excellent overview of the case and the issues involved.

FULL DECISION:
Adultshop.Com Ltd v Members of the Classification Review Board [2007] FCA 1871 (29 November 2007)

Full Bench of the Federal Court dismisses appeal
Adultshop.com appealed to the full Bench of the Federal Court against Justice Jacobson's decision. The appeal was heard in Perth from 14 May 2008. Reference.

The full Bench announced on 21 May 2008 that they had rejected Adultshop.com's appeal!
Full Bench decision: click here.

MEDIA report:
This article has an overview of the case.
Porn store loses film sex challenge
The Australian, 21 May 2008.

The full bench of the Federal Court decision is not online.