DJs sues thinktank over report on sexualised images of children in advertising

Todays SMH: Sex, lies and advertising: DJs sues over child exploitation claims

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 Australia Institute’s report “Corporate Paedophilia: Sexualisation of Children in Australia” was widely publicised amid much controversy last October. The main thesis of the report is that the increased sexualisation of all advertising in the last decades has led to a creeping normalisation of portraying young female models in poses that are inappropriately sexualised for their age, and that the fashions marketed to young girls are becoming more and more sexualised as well. Many people agreed, while others thought that people perceiving sexualisation of children in advertising were either prudes or perverts. (A long and nasty discussion ensued in my crosspost to Larvatus Prodeo.) I’ve been getting intermittent comments telling me I’m dreaming on this related post as recently as last week.

The David Jones action (and a similiar suit by Australian Wool Innovation against PETA regarding PETA’s campaign against mulesing) have been brought under Section 52, outlawing misleading or deceptive conduct, which is the part of the act dealing with consumer protection. There are raised eybrows from some legal commenters at these attempts to use Section 52 in these suits, as it has generally been considered to apply to commercial competitors acting to enhance their own profits at the expense of a rival rather than non-profit organisations making commentary and criticism of a corporation.

The SMH article quotes Australia Institute director Clive Hamilton defending the report, Sydney academic Catharine Lumby criticising the title “Corporate Paedophilia” as irresponsible, and Brian Walters, SC, the author of Slapping on the Writs and vice-president of Free Speech Victoria, who said:

it was becoming more common for powerful corporations to sue people who criticised them, which was distorting the democratic system.

Crossposted at Hoyden About Town

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65 Responses to “DJs sues thinktank over report on sexualised images of children in advertising”


  1. 1 hannahNo Gravatar

    So what is the chief worry here, the sexualisation of children for profit or the silencing of political dissent by large companies using expensive litigation as a weapon?
    Or both?

  2. 2 glenNo Gravatar

    tomorrow night’s sold out discussion at gleebooks with Hamilton suddenly just got busier…

    David Jones clothes suck anyway, at least amongst my demographic (it is all god awful screen-printed faux-authentic design shit), so I am not sure what their problem is. This just makes them look like an even bigger waste of time.

    Poor little corporations going about their capitalist business by tapping into the developing libidinal energies of pre-teen girls. The girls just want to look ‘good’ surely DJs can sell them what the little girls want to wear?

  3. 3 Nick CaldwellNo Gravatar

    At a simplistic level, I have to wonder what David Jones thinks this will actually accomplish. The action will simply increase the exposure of the original report. I can’t really think of worse publicity.

  4. 4 AlexNo Gravatar

    Briggs and Kensington, released a book last year –

    “Managing men who sexually abuse”

    As part of a multi faceted approach to the issue, they recommend the cessation of fashion advertising that sexualises children, and are highly critical of this practice that they refer to as pervasive.

    DJ’s should stop their whinging, and instead take a leadership role in eliminating this sick practice.

  5. 5 wbbNo Gravatar

    David Jones ought to take a shower. And good to see poor old Clive getting some backing (round these parts ) at last!

    Poor little corporations going about their capitalist business by tapping into the developing libidinal energies of pre-teen girls.

    Well yes, that’s half the problem. The other half is casting females at the youngest age in the role of a potential sexual partner for men. Which’d be alright in some eras and places, but here it’s pretty well much against law and moral in quite a big way.

    The sales catalog is not a sacred work of art that can earn special dispensation from normal social prohibitions.

  6. 6 pabloNo Gravatar

    Clive Hamilton has been a very vocal critic of the ad industry in both Australia Institute books – Affluenza, Growth Fetish – with good reason in my view. My guess is that the informed public would have a very dim view of self regulating bodies such as the Advertising Standards Council. Witness the kiwi bashing over the ‘feeling horny’ ad that got the shove by the Auckland Airport Authority recently. DJ’s is obviously feeling a bit precious about their ‘reputation’ in this case and is prepared to risk big bucks. Clive should do a Stephen Meany, open the public support contributions box and think about counter-sueing – if that is possible.

  7. 7 AlexNo Gravatar

    The Catalaxy Clique are practice their favourite pastime (one that I once fell for), bashing LP.

    In their world, the evil lefties are attacking the poor benevolent charity oriented, Corporations for daring to sexualise little girls.

    I mean if the market is calling for 7 year old girls to be depicted as legitimate sex objects, then I’m all for it. After all the market defines our morality and we should just submit to the invisible hand.

  8. 8 AlexNo Gravatar

    Sorry, Helen has also made the claim that -

    However, various small studies seem to indicate that advertising is good at raising product profile and sales, but doesn’t actually do much else.

    Which is FUCKING BUllSHIT!!! Numerous peer reviewed studies have demonstrated a link between the sexualization of children and offending behaviours.

  9. 9 AndycNo Gravatar

    David Jones can get back into their bloody locker, and consider themselves permanently boycotted by myself and anyone else I persuade.

    Bloody totalitarian corporate pervs.

    Go, Clive!

  10. 10 PeterTBNo Gravatar

    But doesn’t there have to be some limits to the actions of so-called protestors? And aren’t the courts exactly the right place to resolve disputes? Would your views be different if it was say the ABC taking a group of dishonest neo-Nazis to court for vilifying their staff?

  11. 11 MarkNo Gravatar

    I think I made the argument on the earlier thread (though I may have decided not to participate – I can’t remember) but I don’t find the methodology of the Australia Institute paper at all robust. My experience of a lot of work from that Institute and academics associated with it is that the same problems are present, viz:

    (a) methodological sloppiness;
    (b) looking for evidence to confirm ideological predilections rather than letting the data speak for itself.

    That’s not necessarily a comment on whether or not there are links between the sexualisation of children in advertising and negative individual or societal outcomes. There may be – I haven’t looked at any other studies myself. I just don’t think the conclusion that there are is supported by the AI study.

    I can also understand how using a phrase like “corporate pedophilia” which is highly inflammatory would provoke a response.

    Having said that, I disagree with DJ’s actions in suing. These matters should be resolved through debate and argument not legal tactics.

  12. 12 MarkNo Gravatar

    I don’t think Alex posted a link to the relevant Catallaxy thread:

    http://catallaxyfiles.com/?p=2511

  13. 13 The bloke who wrote "Lalito"No Gravatar

    I’d agree that Clive and co throwing around phrases like “corporate pedophiliaâ€? was going it a bit.

    I mean DJ’s can afford some of the best market researchers in the world so presumably they’d be in touch with what their A/B family target audience thought would be cool.

    On the other hand, if they’re gonna mount what will be a very high profile law suit, and one which will be covered in lipsmacking salacious detail by the media, then perhaps DJ’s ain’t quite getting the quality of advive it’s paying for.

    Anyway, one way or another this should be another juicy moral panic with everyone everywhere having a very pulse-quickening time mounting their high horses.

  14. 14 Jason SoonNo Gravatar

    Alex
    what a two-faced lying hypocrite you are. you went behind Mark’s back and bashed LP yourself over at catallaxy and now you’re back here trying to curry favour (and incidentally I was the one who tried to reign that in). People have already chosen to overlook your last act of deceit (if you know what I mean, I think only a few people would) so don’t stretch it.

    Where’s this LP bashing you talk of? Andrew Reynolds, a commenter, mentions LP once. Neither I nor Helen do. And incidentally I disagree with Helen.

  15. 15 MarkNo Gravatar

    Yes, it seems that Andrew Reynolds is the only person on that thread who mentions LP.

    I thought Helen’s take was interesting in part because I don’t quite understand how this case can be brought using trade practises law.

  16. 16 MarkNo Gravatar

    Further to that, can any legally qualified readers here please explain how trade practices law can encompass this sort of action? Obviously since DJs no longer has a remedy in terms of defamation, this is being floated as an alternative remedy. But I don’t see how the Institute, which wasn’t seeking to profit from the study, can be said to be engaging in deceptive conduct in a commercial sense.

  17. 17 MarkNo Gravatar

    Andrew Norton’s take:

    I think this is a regrettable action by David Jones. The best course of action here was a debate over the value of the Australia Institute’s claims, which indeed occurred last year. Clearly the Australia Institute was engaged in hyperbole (otherwise the DJ’s advertising people would be behind bars), but there were divided views over whether their advertising in question went too far or not. But if people didn’t like the advertising, nobody is forcing them to shop at DJ’s.

    http://andrewnorton.info/blog/2007/02/05/david-jones-vs-clive-hamilton/

    I’d agree with that.

  18. 18 NabakovNo Gravatar

    Perhaps Alex and Robwangler could start a blog together called the Janus Agenda?

    Look Alex, I do like a good stoush as much as the next bloggite but bustling round the playground telling everyone that so-and-so said this-and-that about them is pretty damn infantile.

    There are so many more imaginative, entertaining, skilful and productive ways to get a right royal barney going.

    Exhibit A: This comment.

  19. 19 AlexNo Gravatar

    Jason,

    Try reading the thread before you mouth off. I specifically made mention of my part in LP bashing, and you know it.

    Helen’s post is ignorant ideological drivel and deserves to be condemned.

    People have already chosen to overlook your last act of deceit (if you know what I mean, I think only a few people would) so don’t stretch it.

    Threat, Jason?

  20. 20 AlexNo Gravatar

    Look Alex, I do like a good stoush as much as the next bloggite but bustling round the playground telling everyone that so-and-so said this-and-that about them is pretty damn infantile.

    Jeez, you just undermined the entire blogospere.

  21. 21 MarkNo Gravatar

    Some clarification on the legal issues:

    http://catallaxyfiles.com/?p=2511#comment-17488

  22. 22 BismarckNo Gravatar

    SL’s analysis at catallaxy is pretty right. The key issue will be whether the conduct of the Australia Institute in pushing these claims was in trade or commerce. You need to look at the extent to which the the comments/reports were designed to advance the commercial interests of the Institute or its clients, or of commercial entities associated with them.

    It would be interesting to see the statement of claim and how the nexus between the comments and the Institute’s trading or commercial activities is pleaded. I imagine that DJ’s lawyers would have had the issue at the forefront of their minds and, unless the drafting was pretty sloppy, it should be able to survive an application to strike it out at a preliminary stage.

  23. 23 amusedNo Gravatar

    As a side issue, is there anyone who can find any analysis by Catherine Lumby that does not reflexively endorse any and every and all popular communication on the issue of gender and sexuality, as being ‘empowering’ ‘playful’ and as having ‘no effect’ in the real world? Whatever the arguments about the ads, (and they have been had on this site) it never fails to amaze me when otherwise canny and of course ‘cool’ people, deny that advertising and popular commercial culture constructs anything at all. It’s amazing that an acitivity of such supposed marginal utility consumes so many billions and billions of dollars. Just wondering.

  24. 24 Bill PostersNo Gravatar

    Corporates are casting around for plausible lawsuits now that defo is out.

    Favourites at this early stage appear to be ingenious readings of the Trade Practices Act and the tort of malicious falsehood.

    The latter is great for threatening, as it sounds especially impressive, but is very hard to prove; looks like DJs reckon a TPA action is more likely to get up.

  25. 25 dogpossumNo Gravatar

    Is there a copy of the entire report anywhere online? I don’t feel I can comment without reading it first…

  26. 26 Captain OatsNo Gravatar

    As a side issue, is there anyone who can find any analysis by Catherine Lumby that does not reflexively endorse any and every and all popular communication on the issue of gender and sexuality, as being ‘empowering’ ‘playful’ and as having ‘no effect’ in the real world? Whatever the arguments about the ads, (and they have been had on this site) it never fails to amaze me when otherwise canny and of course ‘cool’ people, deny that advertising and popular commercial culture constructs anything at all.

    The thing about Lumby’s take is that — however much it may overstate or simplify (largely for reasons of accessibility) the potential of women to ‘appropriate’ representations for ‘their own’ purposes, etc. — it is nevertheless needed as a means of undermining the kind of knee-jerk conservative moralising that is sometimes, perhaps, as oppressive and self-interested as the practices of ’sexualising’ female bodies (though not only female bodies) for the purpose of turning a profit.

    A case in point: I, too, think that the DJ suit is ludicrous, and I find apalling its attempt to ‘reconstruct’ the sphere of public and intellectual debate as an arena of commercial conduct. But denouncing DJs on this point runs the risk of seeming to endorse the debatable claims of the initial report, thereby lending support to the potentially conservative logic which underpins those claims. It’s a risk I am willing to run, but I have to admit that the fact that arguments like Lumby’s are already present within the purview of the debate that makes it easier to run that risk.

    By the same token, Lumby’s own position is unavoidably simplified by virtue of the way it gets positioned in such debates. There are moments in Bad Girls where Lumby indicates that what’s at stake is not the inevitability but rather the possibility that people may reappropriate ’sexist’ images (for example), and that therefore a progressive (not her word), properly liberal (her word) feminism would be more concerned with cultivating the capacity to critically and creatively engage with such representations. E.g.:

    Why teach women to read images in a way that makes them feel embarrassed about themselves? Why not encourage them to make creative readings of images and to appropriate and reinvent female stereotypes to their own advantage? Continually stressing the patriarchal reading of an image which can be read in other ways is hardly empowering for women. (pp.8-9)

    And again:

    For feminists who believe the women’s movement should be focused on producing speaking positions, this extraordinary concern [of pro-censorship feminism] with suppressing speech is more than disturbing — it’s a betrayal of feminist ideals (p.xvi)

    To be sure, these moments in Lumby’s work aren’t as readily seen as others, but that’s largely an effect of the usual processes of simplification, etc. which accompany any attempt to participate in a public debate as polarising as the pro-censorship/anti-censorship one. (Though, that’s not for a second to suggest that the present issue is simply a censorship issue).

    In the end, moreover, I think Lumby’s demonstration of how ready certain forms of feminism are to throw their rhetorical-political power behind fundamentally conservative organisations and campaigns is far too valuable to let her arguments be reduced to their most simplistic forms.

  27. 27 amusedNo Gravatar

    Thank you Captain Oates,
    I understand the issue of teaching people to ‘read’ images and ‘deconstruct’ constructions of gender and sexual identity, and as far as it goes, it is a more ‘liberal’ and rational position than conservative campaigns to censor and otherwise panic about public images of sex and girls having fun. But my problem with Lumby is her ‘uncritical’ stance towards the commercial production of images and desires and her almost total inability to properly account for issues of unequal power and control over the ways that images of desire and potency are deployed, and her silence about the absence of just about any public ’space’ where those issues may be thought about and dealt with in ways which are not already saturated with market values.

    Her work is chiefly characterised by a rather old fashioned notion of the ’struggle’ between conservative moral panics designed to ’shut people up’, and an unproblemmatic celebration of the ‘freedom’ that market culture promises, in contrast to the threat of conservative censorship. The absolute retreat of the latter in the face of a relentless market for ‘images’ which compete for attenton and assent, is the really interesting thing, not the fulminations of a by now, almost totally defeated, ‘old’ moral economy.

    It is this silence, or ‘absence’ in her work that I find, well, problemmatic.

  28. 28 dogpossumNo Gravatar

    Why not encourage them to make creative readings of images and to appropriate and reinvent female stereotypes to their own advantage?

    Call me old skewl, but I think I’d rather be faced with images of [me] and [my sex] and [my sexuality] that actually were empowering and positive and nice, rather than having to go to all the trouble of re-imagining the scary crap I see on the telly and in newspapers and magazines and… so on.

    I’m also concerned that that argument implicitly lets the producers of these sorts of images off the hook (dang, that’s a clunky phrase) – it effectively removes any responsibility for the images they produce and the contributions they make to public discussions of what it means to be a woman or wearing a woman’s body.

    But that’s a little too far off track.

    I think I’m more interested in the legal ramifications of the case.
    Does this mean that I have to second-guess every feminist analysis I make? Do I have to start being worried about doing fairly middle of the road feminist work (let alone radical feminist work)?
    But I still want to read the original report – I have reservations about Lumby’s work and want to see how she went about this.

    Here’s how I see this story going down in the mainstream ‘verse:

    - nutjob feminazi slags off respectible DJs with crazed accusations of paedophilia (’how ridiculous! DJs doing anything radical or crazy or ‘inapropriate? They make such nice sheets – how could they be peddling kiddie pron?!’)
    - sensible DJs acts to safeguard its profits
    - general public see nutjob feminazi publicly told off and breath a sigh of relief.
    - feminism (and academics) once again safely relegated to the realms of lah-lah.

  29. 29 jeanNo Gravatar

    hmmm….I think you’ll find the ’stream media sounds precisely like this:

    “corporate bully silences critics”

    dogpossum, I reckon you and every other person who produces actual academic research into this and similar issues who grounds their work not in wild polemic but in expertise, the principles of scholarship and/or rigorous empirical research will be pretty much safe from lawsuits. Even if such work produces critique.

    btw, these are clearly weird times for a postfeminist cultural studies that thinks of itself as left.

  30. 30 jeanNo Gravatar

    PS That is, whatever you think about whether or not the lawsuit’s a good idea…

  31. 31 MarkNo Gravatar

    dogpossum, you can access the full report via this link, but apparently only if you pay for it:

    http://www.tai.org.au/index.php?option=com_remository&Itemid=36&func=select&id=2

    That doesn’t bode too well for the Institute being able to argue that there’s no commercial aspect to the production of the report, and thus seek to have the charges struck out.

  32. 32 amusedNo Gravatar

    So it take it jean that people doing feminist agitprop, that is not scholarly and well hidden behind the walls of academe can expect to just cop the lawsuits?

  33. 33 MarkNo Gravatar

    I guess it would depend if they were making any money out of it. The use of the TPA to chill speech seems to me to be an absurd misreading of its legislative intent. I didn’t follow the debates, but there must have been a good reason for removing the right of corporations to sue for defamation. Finding some backdoor reason to get around this through twisting the meaning of a provision designed to protect consumers from misleading advertising and representations (the irony!) is just outrageous. The High Court should make this sort of lawsuit impossible, but from the mob who gave us “the constitution is what the Commonwealth wants it to be” in the decision on WorkChoices, I’m not holding my breath.

    Regardless of the merits or otherwise of the report, there are some very important freedom of speech issues here.

  34. 34 jeanNo Gravatar

    amused, I don’t think so. What I was trying to point out was that I think some of the discussion conflates the freedom to critique with the issue that the AI paper was presented as _research_. If you issue a media release asserting that the things you say are based on _research_ (and therefore possibly true in some sense of the word), and then ’stand by’ that research when challenged, then the quality of that ‘research’ is, and should be, part of the debate. I’m not a lawyer, but I would have thought if you frame something as research it has a different status and places an onus of responsibility, at least ethically if not legally, on you that polemic, or agitprop doesn’t.

  35. 35 amusedNo Gravatar

    How does ‘framing’ something as ‘research’ make it less than ‘research’? Does this mean that the authors called something ‘research’ that was really something they put to paper without thinking or reading about anything at all? In fact I read the original paper and looked carefully at the photographs. One may or may not agree with the conclusions of the AI, but there is no doubt in my mind that what they did was ‘research’ in the same kind of way that the Centre for Independent Studies ‘research’ for example, the lax and inadequate parenting skills that create the need for welfare payments to otherwise able bodied scroungers. What a pity that the scroungers, layabouts and job snobs and their unrepresentative and rent seeking ’spokespersons’ who have had such a right and proper bollocking over the years are nor able to hire lawyers and sue. Oh, I forgot, CIS does ‘research’, everybody else does agitprop.

  36. 36 KatzNo Gravatar

    As I understand it, s.52 of the TPA hasn’t yet been used successfully in any action of the kind discussed.

    That doesn’t stop lawyers whispering provocative words into DJ’s corporate suits’ shell-pinks.

    Who knows? The entire justice system, thoroughly imbued with the spirit of Howard’s special-interest dirigisme, may decide in favour of twisting the meaning of s.52 far beyond its sensible intent. This may be the end of free, frank and fierce comment.

    But until that happens, this whole exercise may only be sleek lawyers picnicking high on the hog at the expense of corporate execs who are spendthrift with someone else’s (the stockholders’) money.

  37. 37 Captain OatsNo Gravatar

    And thanks to you too, amused

    my problem with Lumby is her ‘uncritical’ stance towards the commercial production of images and desires and her almost total inability to properly account for issues of unequal power and control over the ways that images of desire and potency are deployed, and her silence about the absence of just about any public ’space’ where those issues may be thought about and dealt with in ways which are not already saturated with market values…

    It is this silence, or ‘absence’ in her work that I find, well, problemmatic.

    Oh, I’m with you on that. I’m also concerned about the way she has become or has positioned herself as a kind of gun for hire (e.g. providing, ahem, consultancy for Big Brother) for big media — though I’d also be concerned to point out the restructuring of higher ed/research which has precipitated that kind of move.

    Likewise dogpossum’s point about letting media producers “off the hook”.

    I guess I just hold on to a kind of faith (everybody needs a little faith in something) that calling for more criticality (for want of a better word) generally — and therefore with regard also to the means by which we make critical judgements — may count as one means by which to call such producers into account over their work, etc.

  38. 38 jeanNo Gravatar

    amused said:

    How does ‘framing’ something as ‘research’ make it less than ‘research’?

    OK, of course it doesn’t. It is research, and then when you present it to the world you tell them that it is research, hence ‘framing’ it for the audience. But let’s forget about framing: if the things that you say are explicitly based on research, then the quality of that research should be part of the debate. And it is only proper that it’s brought into critical dialogue with other perspectives on the issues, such as the postfeminist cultural studies approach of people like Lumby. It’s not a big point I’m making, I would have thought.

    Captain Oats said:

    I guess I just hold on to a kind of faith (everybody needs a little faith in something) that calling for more criticality (for want of a better word) generally — and therefore with regard also to the means by which we make critical judgements — may count as one means by which to call such producers into account over their work, etc.

    I agree with that.

  39. 39 tigtogNo Gravatar

    For general information: Google has a cached html version of the report: [link]

  40. 40 Andrew BartlettNo Gravatar

    trackback

    I can understand why any body or company would dislike being linked to a term like paedophilia. However, leaving aside the validity or otherwise of Clive Hamilton’s thesis about the deliberate sexualisation of children in advertising, this seems to me to be another attempt to use the Trade Practices Act for purposes which could set some dangerous precedents.

    Australian Wool International has had a court case runnning for nearly two years now using the Trade Practices Act to sue some Australian animal welfare advocates and the USA based group PETA in response to their campaign to boycott Australian wool until the practice of mulesing is stopped. For some reason, this action hasn’t received too much criticism for its potential to impact on freedom of speech and consumer choice campaigns, but it could have quite serious implications if it is successful. AWI has also been able to access a nice pool of taxpayer funds that is supposed to be used for research and promotion to run their legal action.

    I’m not certain if the action against Clive Hamilton is trying to use the same section of the Trade Practices Act, but it seems to have some similarities.

  41. 41 tigtogNo Gravatar

    According to the SMH article I linked to, both DJs and AWI are suing their critics under Section 52 of the Trade Practises Act.

  42. 42 Andrew BartlettNo Gravatar

    Thanks Tigtog.

    From memory, AWI’s initial lawsuit was wider, including some stuff under Section 45D, but much of it was struck out. A bit like the Gunns case against anti-logging protesters, which also has involved the plaintiff making repeated efforts and resubmission of claims – also so far without success and at great cost.

  43. 43 Enemy CombatantNo Gravatar

    To cash in on the absolutely fabulous publicity DJs are getting from suing Clive and AI over their suggestion that DJs are involved in Corporate Pedophilia, perhaps DJs could blitz the media with a “JonBenet Ramsay Memorial Sale”.

    Tasteful,understated and fwightfully DJs dahling.

  44. 44 Armagnac EsqNo Gravatar

    Not up on the TPA these days, however I think the best approach is to damage them by continuing to link them, without making improper allegations as such, to the claims they are suing to deny.

    For example I’d have written the title of this post, which will appear on google searches, as:

    “David Jones on attack over corporate paedophilia allegations”

    How much attention do they really want to draw to the issue.

    As for PETA their campaigns are a wee tad more aggressive than anything put out by the oz institute; I’m surprised they can’t be hit with something buried in common law like the tort of intentional infliction of economic harm.

    As for s52 though I’d be surprised if either the AI or PETA would fall under the commercial activity requirement; I’m sure there’s a case out there somewhere distinguishing bodies that raise moneys for non-profiteering aims and those seeking profit as a primary goal. It’s probably buried in tax or trust law…

  45. 45 Sir Henry CasingbrokeNo Gravatar

    As a general principle, suing, a very public activity, is a very stupid tactic, especially for something somebody has said. Helen Dale (skepticlawyer) makes a purely legal case suggesting that DJs has a case. But that is similar in kind to the lawyerly advice to McDonald’s and Gunn’s in their similar pursuits of public advocates.

    Here are my reasons why David Jones is on a hiding to nothing in the court that matters most to a retailer who lives or dies by public goodwill: the court of public opinion.

    No matter what the issue, an individual sued by a large corporations tends to get the sympathy of the public at large.

    Public advocates taking on corporations are seen as champions of the public, i.e. acting for the public good, often in absence of perceived lack of control of corporate behaviour by regulatory authorities.

    McDonald’s changed its menu, began serving salads and changed its cooking oil – tacit admission that the tremendous publicity that resulted from its lawsuit in the UK had hurt it worldwide, regardless of the legal outcome.

    The legal case has every chance of turning into a media circus thus fuelling the debacle about sexualisation of children.

    Sexuality and little girls is a very very emotive issue, especially out in the suburbs, like Castle Hill, the home of Hillsong.

    A wily lawyer for Hamilton leading evidence could do a lot of collateral damage, the fallout from which would be spread on the telly and in the tabloids. This is meaty stuff.

    David Jones is an upmarket retailer where propriety and good taste are a part of its corporate personality – a tacky courtcase dealing with pedophilia will not do its image much good. Many will no longer want to be seen carrying a DJs shopping bag because it may be seen as approving of sexualisation of children..

    Hamilton does not have to win to win but DJs will always lose this one, irrespective of the strictly legal outcome.

    DJs makes most of its money from its credit card, which is usurious at 21%. The reason people use it is because it carries a certain amount of cachet. This court case will besmirch that carefully nurtured unique selling proposition and with it the brand and thus eat into DJs bottom line. Stupid, stupid move.

  46. 46 David JackmansonNo Gravatar

    Ouch. 3 days of Hamilton’s lawyer grilling DJ’s representative over their ads:

    - So, Sir, it is your opinion that this ad, and this one, and this one (brandishes glossy A3 copies of the most sexualised pictures of small girls he can find in 5 years of catalogues to the press gallery), is absolutely not paedophilia?

    - No.

    - No. Indeed. How would you describe it, sir? Perhaps we could flesh out your understanding of the term?

    I think Sir Henry is on a winner.

  47. 47 BismarckNo Gravatar

    Armagnac, the important issue is not the profit or non-profit status of the corporation, but whether the conduct complained of was made in trade or commerce. Have a look at Orion Pet Products v RSPCA at paragraphs 144 to 194 for a pretty comprehensive explanation of the principles involved.

  48. 48 grace pettigrewNo Gravatar

    It is very difficult to see how DJs can win this – Clive should get himself top silk and go for broke.

  49. 49 Stephen LNo Gravatar

    First up an admission. The AI research was not largely done by Hamilton, but by a researcher there, who is a good friend of mine. Despite this I have not read the report in full, only media accounts.

    I don’t know whether DJs themselves have engaged in corporate pedophilia. But anyone who doesn’t think some advertisers do must be wearing blinkers. Just after the report came out I came across an ad that had children of about seven posed so sexually if you saw it on the net you would be hitting the back button before the cops came and charged you with possession of child pornography. The term is totally legitimate, although it may be that AI cast too wide a net, including some people under it who didn’t deserve it.

    I agree with a lot of what Lumby says on many things. There are plenty of debates where I am closer to her than Hamilton, but surely her talk about women reclaiming images for themselves only applies to adults? To suggest that it is ok to sexualise children, and then up to the kids to interpret this in ways they find empowering is just bizarre.

  50. 50 LauraNo Gravatar

    Stephen L, that last point is incredibly sensible and well-made.

    I agree with people who have expressed some doubt over the wisdom of the title TAI chose for the report, if for no other reason than it seems to be impossible for some to interpret the words ‘corporate paedophilia’ as describing anything but actual child abuse or the deliberate production of pornography.

    I have a copy of the report with images which I can email to anybody who’s interested – sillsbend AT gmail.com

  51. 51 MarkNo Gravatar

    I’m sure the title was Clive Hamilton’s not Emma Rush’s. It’s his style, really.

  52. 52 steve munnNo Gravatar

    For the free dictionary:

    “Noun 1. paedophilia – sexual activity of an adult with a child”

    http://www.thefreedictionary.com/paedophilia

    My Collins dictionary has the same definition. I’m not sure what the pomo dictionaries say but the mainstream ones give unequivocal defintions.

    The AI should offer an apology for inappropriately using this word.

  53. 53 FDBNo Gravatar

    Technically, the word implies no action of any sort. A person who feels sexual urges towards children is a paedophile regardless of “acting out”.

    Legally speaking, I doubt that the word is used at all in the laying of charges. Sexual assault of a minor, etc etc

  54. 54 LauraNo Gravatar

    OED says “Sexual desire directed towards children.”

  55. 55 FDBNo Gravatar

    OTOH, I agree that the AI piece was heavy-handed.

  56. 56 FDBNo Gravatar

    Laura:

    *snap*

  57. 57 steve munnNo Gravatar

    I should point out that I doubt DJs has suffered any financial loss. Unless they can prove financial loss I don’t think they should be entitled to sue as free speech must be protected.

    However the AI claim is vastly overblown and in the interests of common decency they should apologize for their actions. That includes an apology to the children whose pictures they have used to support their claims. How distressing that must be for the parents. Shame, AI, shame.

  58. 58 LauraNo Gravatar

    What is a pomo dictionary, anyway?

  59. 59 steve munnNo Gravatar

    Oh that was just some meaningless bloated rhetoric on my part Laura. Please ignore it. ;)

  60. 60 Anna WinterNo Gravatar

    This is what the report says in its intro:

    Corporate paedophilia is a metaphor coined by Phillip Adams to describe the selling of products to children before they are able to understand advertising and thus before they are able to consent to the process of corporate-led consumption.1 The metaphor draws a parallel between actual paedophilia, the use of children for the sexual pleasure of adults, and corporate use of children for the financial benefit of adults who own and manage corporations.

    In this paper, the metaphor of corporate paedophilia is used more specifically to refer only to advertising and marketing that either seek to present children in sexually suggestive ways, or seek to sell products to children using overt forms of adult sexuality. It encapsulates the idea that such advertising and marketing is an abuse of children and contravenes public norms.

  61. 61 AdrienNo Gravatar

    A pedophile is someone who’s sexually wired toward pre-pubescent children defined clinically as someone who has sexual fantasies involving children over a period of six months or more.

  62. 62 wbbNo Gravatar

    What’s a metaphor? And is it legal?

  63. 63 Armagnac EsqNo Gravatar

    Maybe Lefty Jeremy should run the case pro bono, it’d be a better profile builder than blogging… ;p

  64. 64 wbbNo Gravatar
  65. 65 LauraNo Gravatar

    Yup. Bye bye DJs.

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