An open letter to Livejournal
ETA 4: This whole thing was getting a bit unwieldy, so I've reorganized the entire post a little bit. Hopefully this will make it a bit easier to understand and navigate now!
This will be a public post. For once.
Over the next few days, I want to collect a list of contradictory statements that LiveJournal and SixApart have posted regarding the Strikethrough '07 debacle. In addition, any official statements you can find to support or refute the legality of fictional sex with minors will be listed as well, for posterity. And finally, I want to collect and archive a list of works published in the United States that feature explicit sexual scenes with characters under the age of 18. I do this in the hopes that it will help the LJ/SA administration that a)they're only making things worse by making promises and then going back on them and THAT is why we are leaving, not because of a silly hissy fit like they seem to think, and b)contrary to their recent statement regarding what they can and cannot host, written fiction. I also hope that by sending this to other news site, prospective new users who could be affected by this will forewarned about the activities and ambiguous business practices this company now engages in.
Conflicting Statements Issued By LiveJournal/SixApart Regarding the Journal Suspension Controversy and Subsequent Policy Changes:
Original Statement
- Posted May 31, 2007: Barak states that the following types of journals were suspended in error and would be restored: "1. All Fandom journals[,] 2. All fiction journals [emphasis mine][,] 3. All journals who that had problems in their profile only."
Contradiction
- Posted July 19, 2007: "This includes...child pornography (photos or videos), or other material -- including drawings and text -- that explicitly depicts minors under the age of 18 (real or not) [emphasis mine] in a graphic sexual context. Or, in other words: Romeo and Juliet is okay. Teens talking about their experiences with sex is okay. Smut focused on a twelve year old is not okay."
Original Statement(s...there are a LOT for this!)
Posted June 20th, 2007: Barak states in an exchange with an LJ user that there has been nothing reported in the Harry Potter fandom that fails to pass the Miller Test or that violates obscenity laws.
Posted July 19th, 2007: LJ biz states that, "Over the years, we've looked at thousands of reported journals and communities, and we rarely have come across a case of creative fiction or fanfic text that warrants review. If the content is similar in tone, context, feel, and level of explicitness to something that could be found on the shelves of a national chain bookstores,{emphasis mine] we'll take that into consideration as well." As an added note, chain bookstores carry copies of erotic art books as well.
Posted July 20th, 2007: burr86 says, clarifying this is not the official statement but a summation of the news policies: "If it's "hmmm, this is probably in violation, but maybe not 100%" [...]then what happens is a "temporary" suspend. [...]And what happens in those cases is that you'll get an email saying "hey, this is still a violation, but not unambiguously so. please delete it and we'll unsuspend you ASAP."[emphasis mine] So there's provisions in place even to account for the edge cases, because we don't really want to permanently suspend someone just because they tripped across the line of acceptability, where they probably don't know any better, etc." The full discourse with violet_quill can be read here.
Posted in LJ FAQ #106 re: account suspensions: The official FAQ states that, "Account suspensions are generally used by the Abuse Prevention Team as a last resort. In most cases, a user will be provided with an opportunity to delete any content that is in violation of the Terms of Service before his or her account is suspended [emphasis mine]." It also lists what would be grounds for permanent suspension, which does mention TOS violations as grounds, but nowhere in the TOS does it say that artwork/fiction reported will automatically be suspended permanently.
Posted June 20th, 2007: Barak explains, to an extent, what is and isn't allowed on the site and what the rules for suspension are to try to allay fears: "Our number one goal is to encourage and promote a free and open community. We will only intervene to the extent needed to avoid the site being used as a vehicle for illegal activities."
Contradiction
Posted August 3rd, 2007: ponderosa121 is suspended without warning for posting this piece of artwork (NSFW) in a community here. Repeat: this suspension was without warning. The email she received states: "It has come to our attention that one of your entries, located at http://community.livejournal.com/pornish_pixies/470020.html, contains drawings depicting minors in explicit sexual situations. Such content is in violation of our policies, and we take action when it is reported to us.Due to the nature of this violation, your accounts have been permanently suspended, and we regret that we cannot allow you to create additional accounts on LiveJournal."
Original Statement:
Posted June 20th, 2006: Barak states, "We are making no major policy changes, we have made no changes to the TOS, and we do not anticipate making any changes in the future."
Contradiction
Note: By request, please don't spam the linked journal with comments. The person kind enough to link this to me was a bit concerned about that happening, so please respect their wishes.
Posted August 4th, 2007: The head of the LJ abuse team states that, "Your statement there isn't correct. I think the major disconnect here is that in the past, we said "Artistic merit is too hard to determine, so we'll just say nothing fails the Miller Test." Now, a group of... I think it's 8 or so people consisting of abuse volunteers, LJ staff, and 6A management, are actually applying it in very specific circumstances[...]. Things don't automatically fail it as soon as a minor in a sexual situation shows up, they essentially just have to have other context that offsets it/gives it a credible reason for it being there." (I would highly advise that everyone reads the rest of this comment as well, as it gives the closest answer to what will and won't be allowed to remain on the site if reported)
Original Statement
Posted June 8th, 2007: Barak states in a news posts that, "One thing that people have been upset about has been the implication that the community standards would be set by Six Apart and not the community. [...] We know we can learn a lot from other communities that use a combination of reputation software and human judgment to gauge community opinion, and we are now actively exploring how we can let the community "vote" on what is acceptable content in order to create greater consistency."
Contradiction
Posted July 19th, 2007: Abe states, "Groups of people from various parts of the LiveJournal team [emphasis mine] are going to evaluate anything that's reported to us using a standard that we hope accommodates as many of the diverse views of our global community as possible, within the constraints placed on us by United States law."
Original Statement
Posted August 3rd, 2007: A communication with an LJ user from the Abuse team explains that, "the Terms of Service (http://www.livejournal.com/legal/tos.bml) does not include any statement indicating that users will be warned prior to alternate actions."
Contradiction
Posted in LJ FAQ #106 re: account suspensions: As noted above, the official LJ FAQ states that, in the case of account suspensions: "Account suspensions are generally used by the Abuse Prevention Team as a last resort. In most cases, a user will be provided with an opportunity to delete any content that is in violation of the Terms of Service before his or her account is suspended [emphasis mine]." So while the TOS may not say that users will be warned, the FAQ does, and that is a MAJOR contradiction within the LJ site.
Original Statement(s)
Posted June 20th, 2007: Barak explains, to an extent, what is and isn't allowed on the site and what the rules for suspension are to try to allay fears: "Our number one goal is to encourage and promote a free and open community. We will only intervene to the extent needed to avoid the site being used as a vehicle for illegal activities."
Posted July 19th, 2007: Abe further elaborates on the fact that LJ/SA is supposedly only doing this because of legal issues. "1. Material which violates United States law [...]2. Material which encourages or advocates hate crimes, rape, or child abuse or pedophilia. [...]3. Material that asks for assistance in committing illegal activities that cause serious physical/economic harm to others."
Contradiction
Posted May 30th, 2007: Barak gives an interview to CNet.com saying that, ""Our decision here was not based on pure legal issues. It was based on what community we want to build and what we think is appropriate within that community and what's not."
Original Statement
Posted May 31st, 2007: Barak apologizes for the May 29th account suspensions, and states in regards to the worried fan communities that, "We love our members of fandom and respect their role in our community." (Note: In addition, LJ/SA has made a point in many of their news posts pre-Strikethrough and in hundreds of comments to users afterwards that they care very much about their userbase, especially in fandom.)
Contradictions
Posted August 4th, 2007: Abe posts comments in a since-deleted entry clearly mocking fandom and those up in arms over this issue.
Posted May 30th, 2007: As stated above, Barak's interview to CNEt.com talks about how the May 29th suspensions were based entirely on LJ/SA's decision on what sort of community they wanted to build and that he doubted more than a dozen of the journals suspended were done in error and the other 400 were intentional. This is a huge slight to users, especially in fandom as they were the most heavily affected.
Original Statement
Posted June 8th, 2007: Barak offers clarification on what LJ/SA is working on in response to Strikethrough 2007, and mentions, "We realized that we need to clarify policies and procedures BEFORE we give feedback to journals that were taken down and then put back up."
Contradiction
Posted August 3rd, 2007: The entire issue with the suspension of ponderosa21, elaboration, and all of the rest of the banned artists without clarifying their policies regarding how the company would react to reported content and what exactly falls under content the site is unwilling to host is a direct contradiction of Barak's post.
Original Statement
Disclaimer available on all suspended user profiles: As taken from ponderosa21's own suspended profile page, "Please note that in order to maintain our users' privacy, LiveJournal.com cannot discuss the reasons for any suspension with anyone except the account's owner [emphasis mine]."
Contradiction
Posted August 3rd, 2007: The LJ staff responds to stormcloude's questions regarding why exactly ponderosa21 was suspended, explaining exactly why the suspension occurred.
Original Statement(s)
LJ's TOS Article XVI Section 13: Livejournal's terms of Service clearly states that content Livejournal will not host includes, "Promote or provide instructional information about [...]promote physical harm or injury against any governmental entity, group or individual [emphasis mine], or promote any act of cruelty to animals."
Posted July 19th, 2007: Abe restates the major things LJ is unwilling to host: "1. Material which violates United States law[...,] 2. Material which encourages or advocates hate crimes, rape, or child abuse or pedophilia[...,] 3. Material that asks for assistance in committing illegal activities that cause serious physical/economic harm to others [emphasis mine]."
Posted in Abuse Policies and Procedures: As of November 4th, 2004, the APaP has a section titled Self-Harm that specifically states, "Summary[:] Material posted which discusses in positive terms or advocates self-destructive behavior such as anorexia or self-injury [emphasis mine]. Action[:] [...]If material provides instructions on how to best commit self-destructive behavior, along with incitement for others to do same, require removal of material, following Standard Compliance Timeline. If entire community is dedicated to providing instructions on how to best commit self-destructive behavior, along with frequent incitement for others to do the same, terminate community."
Posted August 7th, 2007: A member of the LJ Staff responds to queries that no, LJ does not allow hate groups to stay on the site as per the TOS: "We don't allow any hate-crime promoting communities to stay."
Contradictions
Posted August 7th, 2007: In the same post as mentioned immediately above, the OCP points out examples of hate communities that have been reported and still allowed to stay on LJ.
Posted August 7th, 2007: The same LJ staffer explains why proana communities have not been removed from the site: "[I]t's not illegal to aspire to be thin. It's not against the ToS to give people bad advice [emphasis mine]."
Posted August 8th, 2007: An LJ user chronicles two particular communities that promote child abuse both psychological and physical, with the inclusion of at least once instance of animal abuse being encouraged, and includes proof that these communities have been reported to LJ Abuse at least once, but have been allowed to remain on the site.
Posted August 11th, 2007: Another archive of groups actively supporting hate crimes that have been reported to LJ and allowed to stay. Warning: these contain VERY disturbing content and some of the linked content includes graphic images with the linked OPs commenting on how "justice was served."
Original Statement
Posted in Abuse Policies and Procedures: As posted in the APaP, LJ states that they "can't address any content which resides off of LiveJournal as, quite frankly, it's none of our business what occurs off our servers."
Contradiction
Posted August 9th, 2007: When an LJ user asks whether linking to fiction and artwork from outside of LJ is allowed, the staff responds to say that in general, linking will also be prohibited now: "I sent in a support request with the exact wording from the open letter: Is posting a link to prohibited content that is posted elsewhere going to receive the same punishment as it would if the prohibited content were posted on LiveJournal servers? This is the response that I just received: In general, yes."
Original Statement
Posted in Abuse Policies and Procedures: "The LiveJournal Terms of Service is always the definitive guide to site policies [emphasis mine]; this material is provided as a convenience only."
Contradiction
Posted August 7th, 2007: "The Terms of Service is not a document designed to detail every specific situation." (Which, as I understand it, is the opposite of the definition of "definitive.")
This does not even begin to address the number of times LJ/SA has stated that a statement regarding these situations would be forthcoming within a certain time period...and then not followed through until considerably after the time period had elapsed. Conclusion: LJ/SA cannot be relied upon to stand by their own word.
Information Regarding the Legality of Fictional Minors Engaging in Explicit Sexual Activities:
Note: elfwreck has clarified for us non-legal types that while the age of consent may vary from state to state, the age of MAJORITY (ie when one is no longer considered a minor) is 18 across the US. However, LJ/SA has not addressed this as a reason for their new TOS but rather the age of consent, and the fact that it is legal for minors to engage in sexual activity if the age of consent in their state is under 18 may still be an issue we can contest. Thanks for the info!
CNN.com article on the Supreme Court decision to strike down the ban on "virtual porn:" "The 6-3 ruling says the law [which "had banned a range of techniques -- including computer-generated images and the use of youthful-looking adults -- which were designed to convey the impression of minors engaging in sexually explicit conduct"] violates the First Amendment guarantee of freedom of speech. The decision hands a major setback to the Justice Department and the majority of Congress in their legislative efforts to fight child pornography."
Transcript of Ashcroft vs. the American Civil Liberties Union about protecting children from harmful materials on the Internet: This transcript does confirm the Child Online Protection Act (COPA) and that companies and individuals who knowing post content harmful to minors can be fined $50,000 and sentences to 6 months on jail; however, this trial was brought about due to fears that COPA would restrict freedom of speech and the final outcome judged that this was a valid concern and instead the Internet would enact other, less restrictive alternatives to COPA, namely filtering technology and rules on public servers like the LiveJournal cut text tags, Friends' filters, and LJ's privacy locking options.
Three different links that clarify that the age of consent (which determines whether or not a person can be involved in sexual acts with a minor) is NOT 18 across the United States: chaos_rose clarifies that, "There are exceptions for close-in-age relations, homosexual relations, and cases in which a child as young as thirteen may marry with consent of their parents. So, the age of consent being touted as eighteen is, in fact, a myth. It is, however, a fact that only a person of eighteen or older is legally able to consent to depict sexual activity on film or in photographs - commonly called pornography and requiring models' release forms and so on." Notice that this does not include written works, nor are those specified on the linked websites.
NOTE: This does not relate to the legality of erotic fiction on the internet, but rather LJ/SA's policy changes: News article about a decision regarding online TOS changes: this article explains a federal court decision regarding Terms of Service changes by online companies:"A federal appeals court has ruled that companies can't change their contracts and post those revisions online without notifying customers first. " This is particularly important as LJ/SA, while they claim have not been altered sing April 2006, did at some point alter their TOS without telling their customers (I checked, and there were no posts in April 2006 or anywhere else in any of the communities here) who had been signed up since before April 2006. (Myself included, as I joined up in June of 2002)
US Code Collection information regarding visual depictions of minors in sexual situations: This demonstrates the level of what is considered unacceptable portrayal of real minors, all of which would support LJ/SA's decisions in banning certain works of artwork on their site; however, these standards do not apply to fictional minors according to this.
CNN.com article about laws regarding fictional minors in sexual situations: This clarifies that in 2002, the Supreme Court struck down previous laws stating that it was illegal to possess and distribute pornography with fictional minors. This means that minors in sexual situations in fiction is currently legal in the United States, as I have been unable to find anything stating that this decision has since been reversed.
Three additional articles regarding amateur BBS actions.
Conclusion: LJ/SA had minimal to no grounds claiming that their policies and the suspensions were solely a legal decisions and not a discretionary one...yet another contradiction not clearly stated in any entries I could link, but still an example of the site's ambiguous and unreliable business practices.
Note: For the following section, only certain literary works are eligible for inclusion here...those which, based on LJ/SA's actions and criteria as stated since May 29th, 2007, would be at risk for account deletion were they original posted here. This is NOT a repost of the list made during the first Strikethrough cataloging all works featuring underage sex and incest, but only those of an explicit nature that can be purchased at any chain bookstore without being ID'd. As of 8/6/2007, LJ/SA's definition of obscene includes only: penetration, fluids, graphic descriptions of other sexual acts, and basically anything that would rate a Mature film rating...R or higher in the USA. Books like Romeo and Juliet or anything where the act is most euphemisms would not qualify. Most romance novels, works by Stephen King, Anne Rice, or Poppy Z Brite would qualify, but would be the least explicit works listed. If I receive any information that less explicit works or illustrations would be bannable on this site now, I will edit the list to include those works as well.
This list includes: art, graphic novels, and other illustrated works, works written in another country but available for purchase through US distributors, and other fictional works, but not nonfiction instructional novels or filmed works featuring live actors. I will also specify which of these published and wholly legal books use those scenes either without portraying them in a negative light (read-not rape or molestation or designed to show the consequences of underage sex), in a way designed to be erotic, and/or as a central theme to the story.
Lists of Published (and Therefore Legal) Fictional Works Available in the United States Involving Minors in Explicit Sexual Situations:
-All books by JD Robb
-"She's Come Undone," Wally Lamb
-"Mysterious Skin," Scott Heim
-"Lolita," Vladmir Nabokov
-"Lost Girls," Alan Moore
-"Bloodtide," Milton Burgess
-"Bastard Out of Carolina," Dorothy Allison
-"Go Ask Alice," Anonymous
-"The Lovely Bones," Alice Sebold
-"My Sweet Audrina," VC Andrews
-"A Game of Thrones," George RR Martin
-"A Clash of Kings," George RR Martin
-"A Storm of Swords," George RR Martin
-"A Feast of Crows," George RR Martin
-"Isle of Women," Piers Anthony
-"The Brothers Bishop," Bart Yates
-"The Tommyknockers," Stephen King
-"Roots," Alex Haley
-"ecstasie," Francesca Lia Block
-"I was a Teenage Fairy," Francesca Lia Block
Subset: Works Which Do Not Show Consequences To Underage Sex
-"Middlesex," Jeffrey Eugenides
-The "Sleeping Beauty" trilogy, A. N. Roquelaure aka Anne Rice
-"Lasher," Anne Rice
-"The Perks of Being a Wallflower," Stephen Chobsky
-"Richocet River," Robin Cody
-"Lost Souls," Poppy Z Brite
-"Cry to Heaven," Anne Rice
-"Dawn," VC Andrews
-"Clan of the Cave Bear," Jean Auel
-"The Book of the Damned," Tanith Lee
-"The Borgia Bride," Jeanne Kalogridis
-"The Persian Boy," Mary Renault
-"Fanny Hill, or Memoirs of a Woman of Pleasure," John Cleland
-"Obsidian Butterfly," Laurel K Hamilton
Subset: Works Which Additionally Portray Underage Sex in an Glamorized and/or Plot Centric Manner:
-"One Hundred Dollar Misunderstanding," Robert Gover
-"Endless Summer"
-"The Pearl," Anonymous/Collected Work
-"One Hundred Years of Solitude," Gabriel Garcia Marquez
-"Love in the Time of Cholera," Gabriel Garcia Marquez
-"My Melancholy Whore," Gabriel Garcia Marquez
-"In Praise of the September," Mario Vargas Llosa
-"Flowers in the Attic," VC Andrews
-"Petals on the Wind," VC Andrews
-"Heaven," VC Andrews
-"Dark Angel," VC Andrews
-"Venus Butterfly"
-"Belinda," Anne Rice
-"The Heart is Deceitful Above All Things," JT Leroy
-"Sarah," JT Leroy
-"Valley of the Horses," Jean Auel
-"Mammoth Hunters," Jean Auel
-"Plains of Passage," Jean Auel
-"Notes on a Scandal," Zoe Heller
-"Doing It," Melvin Burgess
-"Here I Live Now," Meg Rosoff
-"Taming the Beast," Emily Maguire
-"A Clockwork Orange," Anthony Burgess
-"Naked Lunch," William S Burroughs
-"Call Me By Your Name," André Aciman
-"Kite" (Note: This is an ANIMATED film, featuring graphic visual imagery, and as the art books are readily available including many of these scenes, it is eligible for this list)
-"Nunnery Tales," Anonymous
-"The Vampire Armand," Anne Rice
-"Forever," Judy Blume
-"The Ninja," Eric Van Lustbaders
-"The Miko," Eric Van Lustbaders
-"White Ninja," Eric Van Lustbaders
-"Jian," Eric Van Lustbaders
-"Shan," Eric Van Lustbaders
-"Sirens," Eric Van Lustbaders
-"Black Heart," Eric Van Lustbaders
-"Zero," Eric Van Lustbaders
-"Moll Flanders,"
-"Hades Daughter," Sara Douglass
-"Bio of a Space Tyrant," Piers Anthony
-"The History Boys," Alan Bennett
-"Echo," Francesca Lia Block
-"The Rose and the Beast," Francesca Lia Block
-"Violet and Claire," Francesca Lia Block
-"The Hanged Man," Francesca Lia Block
-"dangerous angels: the weetzie bat books," Francesca Lia Block
-"Psyche in a Dress," Francesca Lia Block
-"Wasteland," Francesca Lia Block
-"Ruby," Francesca Lia Block and Carmen Staton.
-"Rin," Satoru Kannagi and Yukine
-"Gravitation," Maki Murakami
-"Here is Greenwood," Yukie Nasu
-"Descendants of Darkness," Toko Matsushita
Conclusion: If these books and illustrated literature, all of which can be purchased without ID by minors, are seen as not being in violation of obscenity laws and having artistic merit, then how can LJ/SA claim that works on their site similar or less graphic in tone DO violate obscenity laws and lack artistic merit and therefore cannot be legally hosted? Their decisions to delete accounts and entries are based solely on discretionary issues, not legal ones, and were this not a private business on the internet, this site would have been slapped with at least a dozen censorship suits by now.
Please comment away. Links and direct quotes in regards to contradictory statements issued by LJ/SA are much appreciated. For the literary list, please list the title, author, and if any of the sub-categories I mentioned are applicable and which. ETA 5: As of now, this list is closed. I need time to compile this information into a letter to forward out, specifically with a focus on LJ/SA's ambiguous business practices as illustrated in the first section of contradictory statements. Thank you all for your help compiling all of this information! Much love!
This will be a public post. For once.
Over the next few days, I want to collect a list of contradictory statements that LiveJournal and SixApart have posted regarding the Strikethrough '07 debacle. In addition, any official statements you can find to support or refute the legality of fictional sex with minors will be listed as well, for posterity. And finally, I want to collect and archive a list of works published in the United States that feature explicit sexual scenes with characters under the age of 18. I do this in the hopes that it will help the LJ/SA administration that a)they're only making things worse by making promises and then going back on them and THAT is why we are leaving, not because of a silly hissy fit like they seem to think, and b)contrary to their recent statement regarding what they can and cannot host, written fiction. I also hope that by sending this to other news site, prospective new users who could be affected by this will forewarned about the activities and ambiguous business practices this company now engages in.
Conflicting Statements Issued By LiveJournal/SixApart Regarding the Journal Suspension Controversy and Subsequent Policy Changes:
Original Statement
- Posted May 31, 2007: Barak states that the following types of journals were suspended in error and would be restored: "1. All Fandom journals[,] 2. All fiction journals [emphasis mine][,] 3. All journals who that had problems in their profile only."
Contradiction
- Posted July 19, 2007: "This includes...child pornography (photos or videos), or other material -- including drawings and text -- that explicitly depicts minors under the age of 18 (real or not) [emphasis mine] in a graphic sexual context. Or, in other words: Romeo and Juliet is okay. Teens talking about their experiences with sex is okay. Smut focused on a twelve year old is not okay."
Original Statement(s...there are a LOT for this!)
Posted June 20th, 2007: Barak states in an exchange with an LJ user that there has been nothing reported in the Harry Potter fandom that fails to pass the Miller Test or that violates obscenity laws.
Posted July 19th, 2007: LJ biz states that, "Over the years, we've looked at thousands of reported journals and communities, and we rarely have come across a case of creative fiction or fanfic text that warrants review. If the content is similar in tone, context, feel, and level of explicitness to something that could be found on the shelves of a national chain bookstores,{emphasis mine] we'll take that into consideration as well." As an added note, chain bookstores carry copies of erotic art books as well.
Posted July 20th, 2007: burr86 says, clarifying this is not the official statement but a summation of the news policies: "If it's "hmmm, this is probably in violation, but maybe not 100%" [...]then what happens is a "temporary" suspend. [...]And what happens in those cases is that you'll get an email saying "hey, this is still a violation, but not unambiguously so. please delete it and we'll unsuspend you ASAP."[emphasis mine] So there's provisions in place even to account for the edge cases, because we don't really want to permanently suspend someone just because they tripped across the line of acceptability, where they probably don't know any better, etc." The full discourse with violet_quill can be read here.
Posted in LJ FAQ #106 re: account suspensions: The official FAQ states that, "Account suspensions are generally used by the Abuse Prevention Team as a last resort. In most cases, a user will be provided with an opportunity to delete any content that is in violation of the Terms of Service before his or her account is suspended [emphasis mine]." It also lists what would be grounds for permanent suspension, which does mention TOS violations as grounds, but nowhere in the TOS does it say that artwork/fiction reported will automatically be suspended permanently.
Posted June 20th, 2007: Barak explains, to an extent, what is and isn't allowed on the site and what the rules for suspension are to try to allay fears: "Our number one goal is to encourage and promote a free and open community. We will only intervene to the extent needed to avoid the site being used as a vehicle for illegal activities."
Contradiction
Posted August 3rd, 2007: ponderosa121 is suspended without warning for posting this piece of artwork (NSFW) in a community here. Repeat: this suspension was without warning. The email she received states: "It has come to our attention that one of your entries, located at http://community.livejournal.com/pornish_pixies/470020.html, contains drawings depicting minors in explicit sexual situations. Such content is in violation of our policies, and we take action when it is reported to us.Due to the nature of this violation, your accounts have been permanently suspended, and we regret that we cannot allow you to create additional accounts on LiveJournal."
Original Statement:
Posted June 20th, 2006: Barak states, "We are making no major policy changes, we have made no changes to the TOS, and we do not anticipate making any changes in the future."
Contradiction
Note: By request, please don't spam the linked journal with comments. The person kind enough to link this to me was a bit concerned about that happening, so please respect their wishes.
Posted August 4th, 2007: The head of the LJ abuse team states that, "Your statement there isn't correct. I think the major disconnect here is that in the past, we said "Artistic merit is too hard to determine, so we'll just say nothing fails the Miller Test." Now, a group of... I think it's 8 or so people consisting of abuse volunteers, LJ staff, and 6A management, are actually applying it in very specific circumstances[...]. Things don't automatically fail it as soon as a minor in a sexual situation shows up, they essentially just have to have other context that offsets it/gives it a credible reason for it being there." (I would highly advise that everyone reads the rest of this comment as well, as it gives the closest answer to what will and won't be allowed to remain on the site if reported)
Original Statement
Posted June 8th, 2007: Barak states in a news posts that, "One thing that people have been upset about has been the implication that the community standards would be set by Six Apart and not the community. [...] We know we can learn a lot from other communities that use a combination of reputation software and human judgment to gauge community opinion, and we are now actively exploring how we can let the community "vote" on what is acceptable content in order to create greater consistency."
Contradiction
Posted July 19th, 2007: Abe states, "Groups of people from various parts of the LiveJournal team [emphasis mine] are going to evaluate anything that's reported to us using a standard that we hope accommodates as many of the diverse views of our global community as possible, within the constraints placed on us by United States law."
Original Statement
Posted August 3rd, 2007: A communication with an LJ user from the Abuse team explains that, "the Terms of Service (http://www.livejournal.com/legal/tos.bml) does not include any statement indicating that users will be warned prior to alternate actions."
Contradiction
Posted in LJ FAQ #106 re: account suspensions: As noted above, the official LJ FAQ states that, in the case of account suspensions: "Account suspensions are generally used by the Abuse Prevention Team as a last resort. In most cases, a user will be provided with an opportunity to delete any content that is in violation of the Terms of Service before his or her account is suspended [emphasis mine]." So while the TOS may not say that users will be warned, the FAQ does, and that is a MAJOR contradiction within the LJ site.
Original Statement(s)
Posted June 20th, 2007: Barak explains, to an extent, what is and isn't allowed on the site and what the rules for suspension are to try to allay fears: "Our number one goal is to encourage and promote a free and open community. We will only intervene to the extent needed to avoid the site being used as a vehicle for illegal activities."
Posted July 19th, 2007: Abe further elaborates on the fact that LJ/SA is supposedly only doing this because of legal issues. "1. Material which violates United States law [...]2. Material which encourages or advocates hate crimes, rape, or child abuse or pedophilia. [...]3. Material that asks for assistance in committing illegal activities that cause serious physical/economic harm to others."
Contradiction
Posted May 30th, 2007: Barak gives an interview to CNet.com saying that, ""Our decision here was not based on pure legal issues. It was based on what community we want to build and what we think is appropriate within that community and what's not."
Original Statement
Posted May 31st, 2007: Barak apologizes for the May 29th account suspensions, and states in regards to the worried fan communities that, "We love our members of fandom and respect their role in our community." (Note: In addition, LJ/SA has made a point in many of their news posts pre-Strikethrough and in hundreds of comments to users afterwards that they care very much about their userbase, especially in fandom.)
Contradictions
Posted August 4th, 2007: Abe posts comments in a since-deleted entry clearly mocking fandom and those up in arms over this issue.
Posted May 30th, 2007: As stated above, Barak's interview to CNEt.com talks about how the May 29th suspensions were based entirely on LJ/SA's decision on what sort of community they wanted to build and that he doubted more than a dozen of the journals suspended were done in error and the other 400 were intentional. This is a huge slight to users, especially in fandom as they were the most heavily affected.
Original Statement
Posted June 8th, 2007: Barak offers clarification on what LJ/SA is working on in response to Strikethrough 2007, and mentions, "We realized that we need to clarify policies and procedures BEFORE we give feedback to journals that were taken down and then put back up."
Contradiction
Posted August 3rd, 2007: The entire issue with the suspension of ponderosa21, elaboration, and all of the rest of the banned artists without clarifying their policies regarding how the company would react to reported content and what exactly falls under content the site is unwilling to host is a direct contradiction of Barak's post.
Original Statement
Disclaimer available on all suspended user profiles: As taken from ponderosa21's own suspended profile page, "Please note that in order to maintain our users' privacy, LiveJournal.com cannot discuss the reasons for any suspension with anyone except the account's owner [emphasis mine]."
Contradiction
Posted August 3rd, 2007: The LJ staff responds to stormcloude's questions regarding why exactly ponderosa21 was suspended, explaining exactly why the suspension occurred.
Original Statement(s)
LJ's TOS Article XVI Section 13: Livejournal's terms of Service clearly states that content Livejournal will not host includes, "Promote or provide instructional information about [...]promote physical harm or injury against any governmental entity, group or individual [emphasis mine], or promote any act of cruelty to animals."
Posted July 19th, 2007: Abe restates the major things LJ is unwilling to host: "1. Material which violates United States law[...,] 2. Material which encourages or advocates hate crimes, rape, or child abuse or pedophilia[...,] 3. Material that asks for assistance in committing illegal activities that cause serious physical/economic harm to others [emphasis mine]."
Posted in Abuse Policies and Procedures: As of November 4th, 2004, the APaP has a section titled Self-Harm that specifically states, "Summary[:] Material posted which discusses in positive terms or advocates self-destructive behavior such as anorexia or self-injury [emphasis mine]. Action[:] [...]If material provides instructions on how to best commit self-destructive behavior, along with incitement for others to do same, require removal of material, following Standard Compliance Timeline. If entire community is dedicated to providing instructions on how to best commit self-destructive behavior, along with frequent incitement for others to do the same, terminate community."
Posted August 7th, 2007: A member of the LJ Staff responds to queries that no, LJ does not allow hate groups to stay on the site as per the TOS: "We don't allow any hate-crime promoting communities to stay."
Contradictions
Posted August 7th, 2007: In the same post as mentioned immediately above, the OCP points out examples of hate communities that have been reported and still allowed to stay on LJ.
Posted August 7th, 2007: The same LJ staffer explains why proana communities have not been removed from the site: "[I]t's not illegal to aspire to be thin. It's not against the ToS to give people bad advice [emphasis mine]."
Posted August 8th, 2007: An LJ user chronicles two particular communities that promote child abuse both psychological and physical, with the inclusion of at least once instance of animal abuse being encouraged, and includes proof that these communities have been reported to LJ Abuse at least once, but have been allowed to remain on the site.
Posted August 11th, 2007: Another archive of groups actively supporting hate crimes that have been reported to LJ and allowed to stay. Warning: these contain VERY disturbing content and some of the linked content includes graphic images with the linked OPs commenting on how "justice was served."
Original Statement
Posted in Abuse Policies and Procedures: As posted in the APaP, LJ states that they "can't address any content which resides off of LiveJournal as, quite frankly, it's none of our business what occurs off our servers."
Contradiction
Posted August 9th, 2007: When an LJ user asks whether linking to fiction and artwork from outside of LJ is allowed, the staff responds to say that in general, linking will also be prohibited now: "I sent in a support request with the exact wording from the open letter: Is posting a link to prohibited content that is posted elsewhere going to receive the same punishment as it would if the prohibited content were posted on LiveJournal servers? This is the response that I just received: In general, yes."
Original Statement
Posted in Abuse Policies and Procedures: "The LiveJournal Terms of Service is always the definitive guide to site policies [emphasis mine]; this material is provided as a convenience only."
Contradiction
Posted August 7th, 2007: "The Terms of Service is not a document designed to detail every specific situation." (Which, as I understand it, is the opposite of the definition of "definitive.")
This does not even begin to address the number of times LJ/SA has stated that a statement regarding these situations would be forthcoming within a certain time period...and then not followed through until considerably after the time period had elapsed. Conclusion: LJ/SA cannot be relied upon to stand by their own word.
Information Regarding the Legality of Fictional Minors Engaging in Explicit Sexual Activities:
Note: elfwreck has clarified for us non-legal types that while the age of consent may vary from state to state, the age of MAJORITY (ie when one is no longer considered a minor) is 18 across the US. However, LJ/SA has not addressed this as a reason for their new TOS but rather the age of consent, and the fact that it is legal for minors to engage in sexual activity if the age of consent in their state is under 18 may still be an issue we can contest. Thanks for the info!
CNN.com article on the Supreme Court decision to strike down the ban on "virtual porn:" "The 6-3 ruling says the law [which "had banned a range of techniques -- including computer-generated images and the use of youthful-looking adults -- which were designed to convey the impression of minors engaging in sexually explicit conduct"] violates the First Amendment guarantee of freedom of speech. The decision hands a major setback to the Justice Department and the majority of Congress in their legislative efforts to fight child pornography."
Transcript of Ashcroft vs. the American Civil Liberties Union about protecting children from harmful materials on the Internet: This transcript does confirm the Child Online Protection Act (COPA) and that companies and individuals who knowing post content harmful to minors can be fined $50,000 and sentences to 6 months on jail; however, this trial was brought about due to fears that COPA would restrict freedom of speech and the final outcome judged that this was a valid concern and instead the Internet would enact other, less restrictive alternatives to COPA, namely filtering technology and rules on public servers like the LiveJournal cut text tags, Friends' filters, and LJ's privacy locking options.
Three different links that clarify that the age of consent (which determines whether or not a person can be involved in sexual acts with a minor) is NOT 18 across the United States: chaos_rose clarifies that, "There are exceptions for close-in-age relations, homosexual relations, and cases in which a child as young as thirteen may marry with consent of their parents. So, the age of consent being touted as eighteen is, in fact, a myth. It is, however, a fact that only a person of eighteen or older is legally able to consent to depict sexual activity on film or in photographs - commonly called pornography and requiring models' release forms and so on." Notice that this does not include written works, nor are those specified on the linked websites.
NOTE: This does not relate to the legality of erotic fiction on the internet, but rather LJ/SA's policy changes: News article about a decision regarding online TOS changes: this article explains a federal court decision regarding Terms of Service changes by online companies:"A federal appeals court has ruled that companies can't change their contracts and post those revisions online without notifying customers first. " This is particularly important as LJ/SA, while they claim have not been altered sing April 2006, did at some point alter their TOS without telling their customers (I checked, and there were no posts in April 2006 or anywhere else in any of the communities here) who had been signed up since before April 2006. (Myself included, as I joined up in June of 2002)
US Code Collection information regarding visual depictions of minors in sexual situations: This demonstrates the level of what is considered unacceptable portrayal of real minors, all of which would support LJ/SA's decisions in banning certain works of artwork on their site; however, these standards do not apply to fictional minors according to this.
CNN.com article about laws regarding fictional minors in sexual situations: This clarifies that in 2002, the Supreme Court struck down previous laws stating that it was illegal to possess and distribute pornography with fictional minors. This means that minors in sexual situations in fiction is currently legal in the United States, as I have been unable to find anything stating that this decision has since been reversed.
Three additional articles regarding amateur BBS actions.
Conclusion: LJ/SA had minimal to no grounds claiming that their policies and the suspensions were solely a legal decisions and not a discretionary one...yet another contradiction not clearly stated in any entries I could link, but still an example of the site's ambiguous and unreliable business practices.
Note: For the following section, only certain literary works are eligible for inclusion here...those which, based on LJ/SA's actions and criteria as stated since May 29th, 2007, would be at risk for account deletion were they original posted here. This is NOT a repost of the list made during the first Strikethrough cataloging all works featuring underage sex and incest, but only those of an explicit nature that can be purchased at any chain bookstore without being ID'd. As of 8/6/2007, LJ/SA's definition of obscene includes only: penetration, fluids, graphic descriptions of other sexual acts, and basically anything that would rate a Mature film rating...R or higher in the USA. Books like Romeo and Juliet or anything where the act is most euphemisms would not qualify. Most romance novels, works by Stephen King, Anne Rice, or Poppy Z Brite would qualify, but would be the least explicit works listed. If I receive any information that less explicit works or illustrations would be bannable on this site now, I will edit the list to include those works as well.
This list includes: art, graphic novels, and other illustrated works, works written in another country but available for purchase through US distributors, and other fictional works, but not nonfiction instructional novels or filmed works featuring live actors. I will also specify which of these published and wholly legal books use those scenes either without portraying them in a negative light (read-not rape or molestation or designed to show the consequences of underage sex), in a way designed to be erotic, and/or as a central theme to the story.
Lists of Published (and Therefore Legal) Fictional Works Available in the United States Involving Minors in Explicit Sexual Situations:
-All books by JD Robb
-"She's Come Undone," Wally Lamb
-"Mysterious Skin," Scott Heim
-"Lolita," Vladmir Nabokov
-"Lost Girls," Alan Moore
-"Bloodtide," Milton Burgess
-"Bastard Out of Carolina," Dorothy Allison
-"Go Ask Alice," Anonymous
-"The Lovely Bones," Alice Sebold
-"My Sweet Audrina," VC Andrews
-"A Game of Thrones," George RR Martin
-"A Clash of Kings," George RR Martin
-"A Storm of Swords," George RR Martin
-"A Feast of Crows," George RR Martin
-"Isle of Women," Piers Anthony
-"The Brothers Bishop," Bart Yates
-"The Tommyknockers," Stephen King
-"Roots," Alex Haley
-"ecstasie," Francesca Lia Block
-"I was a Teenage Fairy," Francesca Lia Block
Subset: Works Which Do Not Show Consequences To Underage Sex
-"Middlesex," Jeffrey Eugenides
-The "Sleeping Beauty" trilogy, A. N. Roquelaure aka Anne Rice
-"Lasher," Anne Rice
-"The Perks of Being a Wallflower," Stephen Chobsky
-"Richocet River," Robin Cody
-"Lost Souls," Poppy Z Brite
-"Cry to Heaven," Anne Rice
-"Dawn," VC Andrews
-"Clan of the Cave Bear," Jean Auel
-"The Book of the Damned," Tanith Lee
-"The Borgia Bride," Jeanne Kalogridis
-"The Persian Boy," Mary Renault
-"Fanny Hill, or Memoirs of a Woman of Pleasure," John Cleland
-"Obsidian Butterfly," Laurel K Hamilton
Subset: Works Which Additionally Portray Underage Sex in an Glamorized and/or Plot Centric Manner:
-"One Hundred Dollar Misunderstanding," Robert Gover
-"Endless Summer"
-"The Pearl," Anonymous/Collected Work
-"One Hundred Years of Solitude," Gabriel Garcia Marquez
-"Love in the Time of Cholera," Gabriel Garcia Marquez
-"My Melancholy Whore," Gabriel Garcia Marquez
-"In Praise of the September," Mario Vargas Llosa
-"Flowers in the Attic," VC Andrews
-"Petals on the Wind," VC Andrews
-"Heaven," VC Andrews
-"Dark Angel," VC Andrews
-"Venus Butterfly"
-"Belinda," Anne Rice
-"The Heart is Deceitful Above All Things," JT Leroy
-"Sarah," JT Leroy
-"Valley of the Horses," Jean Auel
-"Mammoth Hunters," Jean Auel
-"Plains of Passage," Jean Auel
-"Notes on a Scandal," Zoe Heller
-"Doing It," Melvin Burgess
-"Here I Live Now," Meg Rosoff
-"Taming the Beast," Emily Maguire
-"A Clockwork Orange," Anthony Burgess
-"Naked Lunch," William S Burroughs
-"Call Me By Your Name," André Aciman
-"Kite" (Note: This is an ANIMATED film, featuring graphic visual imagery, and as the art books are readily available including many of these scenes, it is eligible for this list)
-"Nunnery Tales," Anonymous
-"The Vampire Armand," Anne Rice
-"Forever," Judy Blume
-"The Ninja," Eric Van Lustbaders
-"The Miko," Eric Van Lustbaders
-"White Ninja," Eric Van Lustbaders
-"Jian," Eric Van Lustbaders
-"Shan," Eric Van Lustbaders
-"Sirens," Eric Van Lustbaders
-"Black Heart," Eric Van Lustbaders
-"Zero," Eric Van Lustbaders
-"Moll Flanders,"
-"Hades Daughter," Sara Douglass
-"Bio of a Space Tyrant," Piers Anthony
-"The History Boys," Alan Bennett
-"Echo," Francesca Lia Block
-"The Rose and the Beast," Francesca Lia Block
-"Violet and Claire," Francesca Lia Block
-"The Hanged Man," Francesca Lia Block
-"dangerous angels: the weetzie bat books," Francesca Lia Block
-"Psyche in a Dress," Francesca Lia Block
-"Wasteland," Francesca Lia Block
-"Ruby," Francesca Lia Block and Carmen Staton.
-"Rin," Satoru Kannagi and Yukine
-"Gravitation," Maki Murakami
-"Here is Greenwood," Yukie Nasu
-"Descendants of Darkness," Toko Matsushita
Conclusion: If these books and illustrated literature, all of which can be purchased without ID by minors, are seen as not being in violation of obscenity laws and having artistic merit, then how can LJ/SA claim that works on their site similar or less graphic in tone DO violate obscenity laws and lack artistic merit and therefore cannot be legally hosted? Their decisions to delete accounts and entries are based solely on discretionary issues, not legal ones, and were this not a private business on the internet, this site would have been slapped with at least a dozen censorship suits by now.
Please comment away. Links and direct quotes in regards to contradictory statements issued by LJ/SA are much appreciated. For the literary list, please list the title, author, and if any of the sub-categories I mentioned are applicable and which. ETA 5: As of now, this list is closed. I need time to compile this information into a letter to forward out, specifically with a focus on LJ/SA's ambiguous business practices as illustrated in the first section of contradictory statements. Thank you all for your help compiling all of this information! Much love!