A month is a long time in the fast-moving world of entertainment and television, so you might already have forgotten that Netflix found itself in hot water all over the world last month when it offered the French child exploitation film “Cuties” to its subscribers. While the film’s stated purpose was to highlight the perceived exploitation of children performing in dance and beauty pageants in the United States of America, many people found the promotional tactics used by Netflix in the advertising of the film to be in poor taste. Some even went as far as accusing the company of promoting child pornography and canceled their subscriptions in protest.
The widespread protest against the film and Netflix’s approach to advertising it made headlines in the USA and internationally. Eventually, it led to Netflix apologizing for sanctioning the offensive promotional poster. The poster was subsequently removed in favor of a new, less-salacious image, but the company didn’t remove the movie from its service, where it remains available to this day. While the apology placated some of the company’s critics, it fell a long way short of pleasing everybody. We can count Tyler County criminal district attorney Lucas Babin among the number of those who feel like Netflix didn’t go far enough. He’s the man behind the move that’s now seen a grand jury indict Netflix over the film in the state of Texas.
The wording of the indictment is damning. In it, the company stands accused of promoting lewd visual material depicting a child, appealing to “prurient interest in sex,” and promoting a film that’s said to have no scientific, artistic, literary, or political value. Babin asked a grand jury in Tyler County to consider whether there was probable cause for a felony to have been committed, and the grand jury responded in the positive. That means Netflix is now facing a headache that it must have started thinking had gone away.
Unsurprisingly, Netflix has spoken out to defend itself and the film vigorously. In a prepared statement, the company says that the film speaks out against the sexualization of children instead of promoting it, and confirmed its view that they believe that the charge has no merit. They also confirmed that they’ll stand by the film and the people who made it and still have no intention of withdrawing it from their streaming platform. They point out that “Cuties,” which is known as “Mignonnes” in its native France, received a positive reception at the prestigious Sundance Film Festival and also garnered an award for director Maimouna Doucoure. The controversy has been incredibly painful for Doucoure, who feels that her work has been misinterpreted and that most of the people who hold strong opinions about the movie have never seen it.
This entire controversy has called into question Netflix’s ethics and business practices. The service has been compared in the past to an online slots website, where the way to make money is to load up as much content as possible and hope that by including ‘something for everyone,’ they’ll attract a wide audience. This is how competitors distinguish themselves from each other in the competitive world of online slots websites too, where one site will try to out-perform another by offering better discounts and promotions and taking bigger risks. If the online slots metaphor resonates with anybody at Netflix, they should also have considered the fact that every player eventually loses if they play PayPal slots for long enough. Perhaps they should also have considered that conservative states exist, and they take a dim view of such contentious material. Online slots websites are illegal in the state of Texas, and Texas would like to make “Cuties” illegal, too.
What happens next in this case is unclear. Even some people who are sympathetic to the cause of those behind the indictment, like Thomas Leatherbury of the Southern Methodist University, worry that the charge falls down because of the First Amendment. The views expressed in the film – which don’t materially support the promotion of child pornography when correctly understood anyway – probably fall into the category of freedom of expression. Movies and theater are traditionally viewed as expressive activity by the law, and there’s little precedent for banning a film or finding in favor of legal action like this when no apparent crime has been committed.
The level at which Netflix could be sanctioned or punished by the court is also unclear. According to Texan law, the theoretical maximum fine that can be applied to a company that’s been found guilty of a felony is twenty thousand dollars. Netflix makes several times that amount every hour of every day. There is, however, a gray area. If a court were to find that a company has benefited financially from the commital of a crime, they might be able to fine the company twice the dollar amount that’s believed to have been made. To do that, though, the court would have to decide how much money Netflix has made specifically from screening “Cuties,” which may be impossible to do. The law also doesn’t clarify whether the rule applies only to the money earned in Tyler County or to money made across the world.
A fine of twenty thousand dollars won’t concern Netflix, and they won’t lose any sleep over the prospect of it happening. What the company definitely didn’t want, though, is more negative publicity about an issue that it thought it had put to bed some time ago. The indictment that’s been filed in Texas may or may not succeed, but the fact that it’s been filed at all has made newspaper and website headlines across the United States of America and Europe. Once again, Netflix is being forced to defend itself for an ill-advised promotional campaign that damaged the integrity of a film that had, until that moment, been viewed as a powerful piece of social commentary. Had such a deliberately provocative image not been used by the company’s marketing team, none of this would have happened, and the film may never have been imprinted on the world’s collective consciousness at all. We suspect that Netflix will be taking a more cautious and conservative approach to its promotional activities in the future. We also suspect that this is the outcome that Lucas Babin and his grand jury really want.