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New Zealand Film and Literature Board of Review |
Last Updated: 25 August 2010
IN THE MATTER of The Films, Videos, and Publications Classification Act 1993
AND
IN THE MATTER of an application under Section 49 of the Act by the Society for the Promotion of Community Standards Inc. of the film “Kill Bill Part 1”
(aka “Kill Bill Vol. 1” “Kill Bill - Part 1”) (hereinafter called “Kill Bill Part 1”)
DECISION OF THE FILM AND LITERATURE BOARD OF REVIEW
DECISION NUMBER FIVE
THE BOARD
1. Claudia Elliott, President
2. Greg Presland, Vice President
3. Mark Andersen
4. Dr Brian McDonnell
5. Marion Orme
6. Stephen Stehlin
7. Ani Waaka
Meeting at Wellington 21 January 2004.
APPEARANCES
1. Mr David H Lane, Secretary for the applicant
2. Mr Graham Fox for the applicant
3. Mr Mike Petrus for the applicant
In attendance during submissions only:
1. Mr David Wilson, Department of Internal Affairs
2. Ms Rebecca Scott, Ministry of Justice
3. Mr Owen Davie, Board Secretary
THE CONTRIBUTORS
1. The Society for the Promotion of Community Standards
Inc. (hereinafter called “the Society”)
2. The Office of Film & Literature Classification
(hereinafter called “the Classification Office”)
3. Buena Vista International (NZ) (hereinafter called “Buena
Vista”).
BACKGROUND
[1] The applicant has applied for a review of the decision of the Classification Office pursuant to Section 47 of the Films, Videos and Publications Classification Act 1993 (hereinafter called “the Act”) in respect to the film “Kill Bill Part 1” (aka “Kill Bill Volume 1”, “Kill Bill – Part 1” (hereinafter called “Kill Bill Part 1”).
[2] Pursuant to Section 52 of the Act, the Film and Literature Board of Review (hereinafter called “the Board”) re-examined the publication without regard to the decision of the Classification Office.
THE FILM
[3] “Kill Bill Part 1” is a feature film from the USA (2003), and is 111 min long. It is predominantly in English, although there are substantial sequences with Japanese dialogue and English subtitles. There is also a segment involving animation in the Japanese style of “anime”.
[4] Part 1 of a two-part story the film is a tale of revenge and retribution. It was written and directed by Quentin Tarantino - a
popular filmmaker well-known for a distinctive style of fast- paced and graphic action movies such as “Reservoir Dogs” and “Pulp Fiction”.
[5] Violence is pervasive throughout “Kill Bill Part 1”, but it is generally fantastical in nature - the participants engage in elaborate and skilfully choreographed martial arts routines that go beyond anything that could actually happen.
[6] The story is not revealed in a simple linear fashion, but jumps back and forth in time.
[7] The film begins with a wedding party attacked by an elite group of killers - the Deadly Viper Assassination Squad - of which “The Bride” had been a member. As the visibly pregnant bride lies severely wounded she tells Bill (the leader of the squad) that the baby she is carrying is his. He then shoots her in the head leaving her for dead.
[8] Present day, four years later, the woman known only as “The Bride” (or her nom de guere “Black Mamba”) tracks down former squad member, Vernita Green, and they fight, pausing only when Vernita’s young daughter arrives home from school. “The Bride” kills Vernita and turns to discover that Vernita’s daughter had witnessed the killing.
[9] We then go back in time to fill in the gap between the wedding day massacre and the present day.
[10] Despite having wounds that would have been fatal for most mortals “The Bride” survives and spends four years in a coma. Through dialogue between a male orderly and another man we learn that during that time the orderly has raped her, and has allowed other men to rape her in return for payment. Brought out of the coma by a mosquito bite, the bride escapes from the hospital but not before killing two of the men who abused her in the hospital.
[11] “The Bride” travels to Okinawa where she has a sword made by a master sword maker, and then travels to Tokyo to seek out another member of the DVAS - O-Ren Ishii. The backstory of O-Ren is told in anime and reveals how she killed the yakuza boss responsible for her parents’ death. She was able to gain access to the gangster because she was a little girl, and he was a paedophile.
[12] O-Ren is now in charge of the yakuza clans, and has surrounded herself with a formidable entourage of Sofie Fatale (advisor), Gogo (body guard), and a private army called “Crazy
88”. Having tracked O-Ren to a restaurant “The Bride” proceeds to take on and defeat Gogo, and the entire Crazy 88, in a long and fantastically drawn-out fight scene. Some are killed and others merely relieved of body parts. Finally “The Bride” takes on and defeats O-Ren Ishii in the restaurant’s zen garden. Having severed Sofie’s arm “The Bride” spares her life so that she may reveal where the other members of the DVAS can be found.
[13] As “The Bride” is flying away from Tokyo we see her compose a list of the members of the Deadly Viper Assassination Squad. The first person is O-Ren Ishii whom she crosses off. The last name on the list is “Bill”. At the end of the film we hear Bill ask Sofie if “The Bride knows that her daughter is alive.
SUBMISSIONS
[14] The Society’s Submissions
1. Application for leave states:
i) The Classification Office has failed to address the dominant effect. “The content matter is grossly derogatory of women, glorifies graphic violence and cruelty at a level that contravenes the FVPC Act 1993.”
ii) The sexual violence and level of abuse of the comatose woman falls within Section 3(2). The OFLC has failed to consider Section 3(4).
iii) Excisions should have been considered to remove the content that constitutes it “objectionable”.
there is a material difference between the concept of content and effect “the latter looks at the effect on the mind of the viewer in the case of a film”. The Board must relate this to Section 3(1).
ii) The impact of the medium pursuant to Section
3(4)(b) in respect to the release on DVD makes it “inevitably, readily available for viewing by young persons”.
iii) Questions whether the publication “promotes or supports or tends to promote or support” activities in Section 3(2) particularly Section 3(2)(c) describing “sex with a corpse”. Section 3(2)(f) also needs to be considered.
iv) Section 3(a) extent and degree includes “extreme acts of violence, mutilation, criminal activity, etc”.
3. Application for interim restriction order dated 4
November 2003:
i) Refers to leave being granted by the Secretary of Internal Affairs (hereinafter called “the Secretary”).
ii) Summarises the reasons for seeking a review, namely that the Classification Office has failed to address the “dominant effect”.
iii) The content is “grossly degrading for women, glorifies graphic violence and cruelty in a manner that contravenes the Act”.
iv) The sexual violence and level of abuse of a woman in the film meets the criteria for an objectionable publication and was ignored by the Classification Office.
v) The Classification Office has failed to consider other matters under the Act that make the publication objectionable or to consider excisions.
vi) The film has been “acknowledged by film critics to arguably contain the highest level of graphic violence to have ever been seen in New Zealand cinemas”.
vii) Refers to the problems of release in DVD and video format in respect to access by children.
viii) Submits the sexual activity on the comatose woman comes within Section 3(2).
i) Refers to two articles, the first by Philip Kennicot from the Washington Post, which deals with the issue of the gratuitous violence in the film pursuant to Section 3 when a “clearly defined limit” is passed. A copy of the review is attached to the submission.
ii) Disputes the Classification Office view on
“dominant effect”.
iii) “Dominant effect” must take into account the
“effect” of the publication upon the audience.
iv) The effect is of “normalising” extreme graphic violence and its gratuitous portrayal of such violence both “promotes and tends to promote and support acts of torture and the infliction of extreme violence or extreme cruelty”.
v) “Public interest” should not be based on the level of complaint to the Classification Office or the Labelling Body.
vi) Refers to John Laughland’s review in “Spectator”, which states that “the fantasy element that pervades much of the gratuitous high level graphic violence in films is far more injurious to the public good, due to the overlay of so called humour and animation inserts” refers to real life incidents of extreme violence which have recently occurred in New Zealand. A copy of the review is attached to submission.
5. Submission dated 25 November 2003
i) Refers to Section 26 of the Act in respect to identical copies. Alleges that the Classification Office takes a “looser definition” of “substantially the same, involving no significant additional material [to the main feature]”.
ii) Discusses the distributor’s obligations in respect to labelling of DVD’s where no additional material is included.
iii) Refers to the role of the Labelling Body. iv) Refers to the film “Lies”.
i) Provides a critique of the Society’s view of the
President’s interim restriction orders. ii) Includes an internet review.
7. Application for interim restriction dated 21 November
2003
i) Refers to the potential release on DVD on 9
February 2004.
ii) Gives information on Walt Disney International. iii) Provides a further review by Kim Newman.
9. Submission dated 19.12.2003
10. Review by Michael Medved
12. Submission Release of “Kill Bill Part 1” on to DVD and
VHS tapes
Part 1” on to home video formats of DVD and
VHS tape.
i) The ability to repeat and edit viewing on DVD and VHS tape in a non-theatrical environment would be “injurious to the public good”.
ii) The home viewing environment is often uncontrolled. The media reports of children viewing unsavoury publications in domestic situations.
iii) Video libraries have demonstrated a lack of compliance on rentals of R18 publications. Refers to TV3’s Target programme.
iv) Officials of the Department of Internal Affairs are reactive rather that proactive in compliance matters. It advised the Target programme that it would only respond to formal complaints.
v) Lack of compliance by retailers.
vi) Seeks that the Board “prevent the release of identical versions of “Kill Bill Part 1” on to DVD and VHS”.
[15] Buena Vista International (NZ)
1. Submission dated 9 December 2003
i) Sets out the current classification.
iii) Of 116,354 people who have viewed the film to date only one complaint, being from the Society, has been made.
iv) It is likely that the film version of “Kill Bill Part 1”
will continue through to at least Boxing Day.
v) BVI undertook the correct procedure in submitting the film for consideration by the Censor.
vi) “There is strict enforcement of the classification by exhibitors and BVI supports all efforts to limit inappropriate admissions. No international territory has either rejected the film content or asked for through the appropriate channels a reconsideration of its classification.”
vii) The current restrictive rating is “sufficient and appropriate”.
viii) The violent parts of the film are understood by the “public and critics alike to be stylistic, campy, cartoonish and even humorous. They are not perceived to be authentic like the violent depictions in films such as Mel Gibson’s Braveheart”.
ix) Refers to various New Zealand newspaper reviewers.
x) BVI has made a significant investment in the release of the film.
[16] The Classification Office
1. Submission dated 16 December 2003.
i) The Society asks the Board to consider its earlier communications in its current review of the film.
ii) Section 52(2) requires every review to be by way of “re-examination of the publication...without regard to the decision of the Classification Office”. The submission will therefore not address the applicant’s criticism of the Classification Office decision.
iii) The film fits through the sex, crime, cruelty, and violence “subject matter gateways” of Section
3(1).
iv) The film depicts the infliction of extreme violence in terms of Section 3(2)(f). The question is as to whether the film “promotes, supports, or tends or promote or support” the subject matter of Section
3(2)(f).
v) Quotes from Moonen v Film & Literature Board of Review [1999] NZCA 329; (1999) 5 HRNZ 224 when the Court of Appeal held that “mere depiction of activities is not enough, there must be something about the way the film depicts the Section 3(2)(f) activities that can be “fairly” said to have the effect of promoting or supporting those activities before it can be banned under Section 3(2) or excised”.
vi) “The film’s manner of presentation of violence is so “stylistically varied, exaggerated and over the top” that it would be unfair to say that it “promoted or supported” the activities it depicts. The film’s stylistic excesses indicate that the film is better read as a homage to the 1970’s B grade Kung Fu, rape revenge, amine and blaxploitation movies.”
vii) If the Board finds that the manner in which the film depicts Section 3(2) activities cannot be said to have the effect of “promoting” or “supporting” those activities then the Board must consider Section 3(3).
viii) “Kill Bill Part 1” has content attracting the application of Section 3(3). The Board must give “particular weight” to “the extent and degree to which and the manner in which” the film depicts that content. In “Kill Bill Part 1” this relates to serious physical harm and acts of significant cruelty, Section 3(3)(a)(i).
ix) The treatment of violence varies in tone and style in different scenes. The fight sequences include depictions of characters being stabbed, slashed, beaten, beheaded, and shot. The characters spray copious quantities of blood and the characters and
set becomes blood drenched. The actors and camera are fast moving so a fleeting glimpse of the effect of the violence is seen. “In keeping with the feature’s theme of vengeance the focus is more intense and lengthy when The Bride is committing violence on someone who has made her suffer. The over-riding impression of the violence in the feature is of over the top, unrealistic, but gory fight scenes. The one-dimensional characters are frequently only introduced in order to be killed in a spectacular manner. There is an abundance of blood but very little realistic viscera and few portrayals of the characters pain in anything more than a cartoonish manner”.
x) There are two brief scenes in which children are involved in sexual situations, the first, an anime or cartoon sequence when O-Ren Ishii takes revenge for her parent’s death by killing a yakuza, said to be a paedophile. The other is a scene in which Gogo, in a school uniform, stabs a man who thought he was about to have sex with her. A third scene establishes that a hospital orderly “took payment and arranged access for men to rape The Bride during the years in which she lay comatose. These scenes present in a manner that is not promotional or supportive of what they depict in terms of Section 3(2) but particular weight should be given to the extent to which they contribute to an assessment of the film as a whole under Section
3(3)(a)(ii) and Section 3(3)(a)(iv)”.
xi) The dominant effect is of a “gory, fun and affectionate homage to the 1970’s B-Grade movies that respect its ancestors. It contains camp characterisations, over the top depictions of violence that no adult would believe are realistic, and elements of sly humour that indicate that it is not to be taken seriously”. An example of the humour is “revenge is a dish best served cold” which is said to be “an old Klingon proverb”. “The film consequently could not fairly be said to have the effect of normalising extreme violence as claimed by the applicant in its 21 November submission”.
xii) The film is well filmed, choreographed and acted.
It is likely to appeal to fans of cult movies, pop culture, and Tarantino films. The length and themes portrayed mean it is more likely to interest adults rather than younger viewers.
xiii) As of 16 December 2003 the following classifications had been made:
British Colombia 18A Ontario R Australia R Finland K-18
France 16
Germany 18
Hong Kong III Ireland 18
Italy VM14
Japan R-15
Netherlands 16
Norway 18
Singapore R (A) South Korea 18
Sweden 15
Switzerland 16
UK 18
USA R
The Classification Office is not aware of any jurisdiction that has banned the film.
xiv) The unrestricted availability of “Kill Bill Part 1” is likely to be “injurious to the public good” because of its treatment of matters of violence including sexual violence. The numerous images of intense and bloody violence are likely to be distressing to teenagers and children. Adults are considered better able to put the images and themes of the film into context, for example the relationship of the violence in the story to other films and sub genres of film. Given this identification of “likely injury to the public good”, a classification restricting the film to adults is a justified restriction on the freedom of expression, and is consistent with Parliament’s intention that a classification should be tailored to prevent a “risk of injury to the public good”.
[17] THE APPLICABLE LEGISLATION
The Films Videos & Publications Classification Act 1993
3. Meaning of “objectionable” ─(1) For the purposes of this Act, a publication is objectionable if it describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty, or violence in such a manner that the availability of the publication is likely to be injurious to the public good.
(2) A publication shall be deemed to be objectionable for the purposes of this Act if the publication promotes or supports, or tends to promote or support,─
(a) The exploitation of children or young persons, or both, for sexual purposes; or
(b) The use of violence or coercion to compel any person to participate in, or submit to, sexual conduct; or
(c) Sexual conduct with or upon the body of a dead person; or
(d) The use of urine or excrement in association with degrading or dehumanising conduct or sexual conduct; or
(e) Bestiality; or
(f) Acts of torture or the infliction of extreme violence or extreme cruelty.
(3) In determining, for the purposes of this Act, whether or not any publication (other than a publication to which subsection (2) of this section applies) is objectionable or should be given a classification other than objectionable, particular weight shall be given to the extent and degree to which, and the manner in which, the publication─
(a) Describes, depicts, or otherwise deals with─
(i) Acts of torture, the inflict of serious physical harm, or acts of significant cruelty:
(ii) Sexual violence or sexual coercion, or violence or coercion in association with sexual conduct:
(iii) Other sexual or physical conduct of a degrading or dehumanising or demeaning nature: (iv) Sexual conduct with or by children, or young persons, or both:
(v) Physical conduct in which sexual satisfaction is derived from inflicting or suffering cruelty or
pain:
(b) Exploits the nudity of children, or young persons, or both:
(c) Degrades or dehumanises or demeans any person:
(d) Promotes or encourages criminal acts or acts of terrorism:
(e) Represents (whether directly or by implication) that members of any particular class of the public are inherently inferior to other members of the public by reason of any characteristic of members of that class, being a characteristic that is a prohibited ground of discrimination specified in section 21(1) of the Human
Rights Act 1993.
(4) In determining, for the purposes of this Act, whether or not any publication (other than a publication to which subsection (2) of this section applies) is objectionable or should be given a classification other than objectionable, the following matters shall also be considered.
(a) The dominant effect of the publication as a whole: (b) The impact of the medium in which the publication
is presented:
(c) The character of the publication, including any merit, value, or importance that the publication has in relation to literary, artistic, social, cultural, educational, scientific, or other matters:
(d) The persons, classes of persons, or age groups of the persons likely to be made available:
(e) The purpose for which the publication is intended to be used:
(f) Any other relevant circumstances relating to the
intended or likely use of the publication.
4. Whether publication objectionable a matter of expert judgment ─(1) The question whether or not a publication is objectionable is a matter for the expert judgment of the person or body authorised or required, by or pursuant to this Act, to determine it, and evidence as to, or proof of, any of the matters or particulars that the person or body is required to consider in determining that question is not essential to its determination.
(2) Without limiting subsection (1) of this section, where evidence as to, or proof of, any such matters or particulars is available to the body or person concerned, that body or person shall take that evidence or proof into consideration.
11. Rating and description applicable to copies – For the purposes of this Part of this Act, the rating and description (if any) assigned to any film under section 10 of this Act shall apply to every copy of that film that is identical in content with it, whether or not the copy is in a different gauge or a different technical form.
Cf. 1983, No. 130, s. 8 (5) – (8); 1987, No. 85, s. 13 (3)
23. Examination and classification – (1) As soon as practicable after a publication has been submitted or referred to the Classification Office under this Act, the Classification Office shall examine the publication to determine the classification of the publication.
24. Soundtrack to be considered – Where a film is intended to be viewed with an accompanying soundtrack (whether or not the soundtrack is an integral part of the film), an examination of the film under section 23 of this Act shall also take into account the content of the soundtrack and its relationship to the film.
Cf. 1983, No. 130, s. 13 (5); 1987, No. 85, s. 21 (4)
26. Classification applies to identical copies – For the purposes of this Act, the classification given to a publication under section 23 or section 55 or section
56 of this Act shall apply to every copy of that publication that is identical in content with it.
Cf. 1987, No. 85, s. 23 (2)
29(1) or section 41(3) of this Act), the Classification Office is of the opinion that it would classify the film differently according to whether any specified part or parts of the film are excised from or left in the film, it shall, before making a final determination in respect of the classification of the film, follow the procedure prescribed by section 33 of this Act.
Cf. 1983, No. 130, s. 15 (3); 1987, No. 85, s. 24 (1)
55. Decision of Board – (1) After examining any publication submitted to it for review, the Board shall –
(a) Classify the publication in accordance with section 23 (2) of this Act; and
(b) Where the Board has classified the publication as a restricted publication, determine in accordance with section 27 of this Act whether or not conditions should be imposed in respect of the public display of that publication, or any advertising poster or, as the case requires, any film poster relating to the publication, or both, and if so, what conditions; and
(c) Give written notice of its decision, and of the reasons for its decision, to –
(i) The applicant for review; and
(ii) The Classification Office; and
(iii) If the review is in respect of a publication referred to the Classification office by a court pursuant to section 29 or section 41 (3) of this Act, to that court; and
(d) Where the review is in respect of a film submitted to the Classification Office pursuant to section 12 of this Act, order the Classification Office to direct the labelling body to issue a label in respect of that film pursuant to section 36 of this Act; and
(e) Direct the Classification Office –
(i) To enter the Board’s decision in the register; and
(ii) To publish that decision in the next list produced, in accordance with section 40 of this Act, after the end of the month in which that direction is given.
(2) Notwithstanding anything in subsection (1) of this section, on any review of a publication, the Board shall have the same powers as are conferred on the Classification Office by this Act (other than the powers conferred by section 37 of this Act).
(3) Where the Board makes any determination in relation to any publication submitted to it
under section 47 of this Act, the decision of the Classification Office in relation to that publication (including any conditions imposed under section 27 of this Act), and the classification given to that publication by the Classification Office, shall, for the purposes of this Act, be deemed to be cancelled.
Cf. 1983, No. 130, s. 33 (6), (7); 1987, No. 85, s.
38 (8)-(10); 1990, No. 58, s. 9; 1990, No. 59, s. 7
The New Zealand Bill of Rights Act 1990
[18] The following sections of the New Zealand Bill of Rights
Act 1990 (hereafter called “the Bill of Rights”) apply:
4. Other enactments not affected – No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights), -
(a) Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
(b) Decline to apply any provision of the enactment –
by reason only that the provision is inconsistent with any provision of this Bill of Rights.
5. Justified limitations – Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
6. Interpretation consistent with Bill of Rights to be preferred – Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.
THE DECISION
[19] The Board unanimously holds the publication “Kill Bill Part 1” to be objectionable except if the availability of the publication is limited to persons who have attained the age of 18
years. The classification is to apply to all formats of the publication including film, video and DVD.
Section 3(1)
[20] The Board considers pursuant to Section 3(1) of the Act that the publication passes through the “gateways” of sex, crime, cruelty, and violence in that it “describes, depicts, or expresses, or otherwise deals with” these matters in such a manner that the unrestricted availability of the publication is likely to be “injurious to the public good”.
[21] In the Court of Appeal decision of Living Word v Human Rights Action Group [2000] NZCA 179; (2000) 3 NZLR 570 (hereinafter called the Living Word decision) it was determined that the Board must consider whether the publication passed through one of the “gateways” and then consider if it was likely to be “injurious to the public good”.
[22] The Act does not define the phrase “injurious to the public good” so case law is relied upon to assist
[23] The decisions of Collector of Customs v Lawrence Publishing Co Limited (1986) 1 NZLR 404 (hereinafter called “the Lawrence Publishing decision”) assists in defining “injurious to the public good”. At p 409 Woodhouse P states
“The statutory concept requires demonstration that any relevant material has a capacity for some actual harm in order to justify the contemplated censorship”.
[24] In The Society for the Promotion of Community Standards Inc v Everard (1987) 7 NZLR 33 (hereinafter called “the Everard decision”) the issue of “likelihood of injury to the public good” is addressed as follows:
“That requires for discernible injury and capacity for some actual harm do not impose a procedure or evidential necessity for actual evidence to that effect. They are matters which an expert body can establish from its own judgment if necessary
... When one considers the likelihood of injury to the public good, one looks for a likelihood sufficiently real to be discernible or actual. Mere paranoid possibilities do not suffice... In the end indecency and within that concept any necessary prerequisites of injury to the public good to a large extent are less matters of fact than of judgment. While not quite in the league of the search for love, beauty, and/or the
meaning of life, the search of injury to the public good in the end involves a very considerable message of value judgment.”
[25] The Board finds the unrestricted availability of “Kill Bill Part 1” to be objectionable in terms of Section 3(1) of the Act in that there are scenes which allude to or involve sex in a manner which is likely to be “injurious to the public good” unless restricted to those over 18 years. Firstly the scenes alluding to previous rape of the comatose woman and an intention to rape by the man who climbs on top of her. Secondly, sex is alluded to when O-Ren Ishii in an anime sequence is seen astride the yakuza, said to be a paedophile. Thirdly, the bar scene in which Gogo, in a school uniform, stabs a man when he answers affirmatively to her question as to whether he would wish to have sex with her, further deals with sex.
[26] In respect to crime, the criminal activity ranges from numerous murders, assaults including with weapons, through to the more minor of driving offences.
[27] Violence and cruelty is pervasive throughout the film, with mass murder at the wedding and in the restaurant, and murder of other individuals by knife, and samurai sword.
[28] Section 3(1) requires the “gateway” matters to be either “described, depicted, or expressed, or otherwise dealt with”. The Board finds that there are numerous “descriptions, depictions, or expressions” of the “gateway” matters of sex, violence, cruelty and crime which, although exaggerated, are of sufficient magnitude to be likely to be “injurious to the public good” unless restricted to an adult viewing audience. The phrase “or otherwise deals with” may include the implied sexual conduct.
Section 3(2)
[29] As the Board finds the threshold in Section 3(1) has been met, it must then consider Section 3(2) of the Act as to whether the activities in Section 3(2)(a) to (f) exist in the publication. The Board must then consider whether the publication “promotes or supports or tends to promote or support” those activities. The phrases “promotes or supports or tends to promote or support” are not defined in the Act.
[30] The decision of Moonen v Film & Literature Board of
Review [1999] NZCA 329; (2000) 2 NZLR 9 (hereinafter called “Moonen 1”) assists
by defining the words “promotes or supports”. The decision states that “description” and “depiction” of a prohibited activity do not of themselves necessarily amount to promotion or support of that activity. There must be something about the way the prohibited activity is “described, depicted or otherwise dealt with”, which can fairly be said to have the effect of “promoting or supporting” that activity.
[31] The Board considered Section 3(2)(a) as to whether “Kill Bill Part 1” exploited children or young persons or both for sexual purposes and finds it does not “promote or support or tend to promote or support” the activities.
[32] Because it is an anime sequence, it is difficult to tell the age of O-Ren Ishii when she is seen astride the alleged paedophile, but she may be as young as eleven years of age. Given O-Ren Ishii’s willingness to kill innocent or perhaps not too innocent males, it is unlikely she would observe liquor licensing laws. Therefore it is a risk to attribute her activities as proof of her age. It is also not clear what, if any, sexual activity is involved as both O-Ren Ishii and the man she kills appear to be fully clothed. In respect to the bar scene with Gogo, presumably if she is old enough to be in a bar, in spite of the fact that she is wearing a school uniform, then she is in the older age range of a young person.
[33] The Board accepts sexual conduct with children or young people has been portrayed in the publication which may exploit them. The issue for the Board is then whether this implied sexual behaviour “promotes, supports, or tends to promote or support” the exploitation of children for sexual purposes. The Board finds there was nothing in either scene to encourage viewers to see any possible sexual exploitation of either Ren-O- Ishii or Gogo as a positive matter. Both men are murdered as a result of their contact with the child or young person.
[34] The Board then considered Section 3(2)(b) the “use of violence or coercion to compel any person to participate in or submit to sexual conduct”. The Society’s submissions refer to the possible earlier rape and the attempted rape of the comatose woman.
[35] The Act does not define “coercion”. The Concise Oxford Dictionary defines “coercion” as “controlling of voluntary agent or action by force”. The Board has used this definition.
[36] The Board holds that there is insufficient detail in the film when “The Bride” was comatose to assess if coercion was involved to compel her to implicitly participate in sexual conduct. “The Bride” may be said to not have had the capacity to be subject to coercion when comatose. It is implied the hospital orderly had previously instructed men that they were not to leave physical signs of violence on “The Bride”. “The Bride” however, when comatose, did not have the capacity to consent to the sexual activity and therefore the Section 3(2)(b) factors relating to violence and sexual conduct are activated.
[37] In respect to the attempted rape, the only obvious violence was by “The Bride” on the man, not vica versa. However the Board accepts that rape involves sexual intercourse without consent and “The Bride” did not consent to sexual conduct while comatose. On the definition applied to coercion and a definition of rape, which by its very nature is sexual violence, the Board finds that the implied and attempted rapes could come within the activities under Section 3(2)(b) of the Act.
[38] The next question for the Board is whether the rapes and other sexual activities are promoted or supported or tend toward promotion or support. The Board finds that neither the attempted rapist nor the hospital orderly were portrayed as persons to emulate. As a result of their actions they were both dealt to by “The Bride” with considerable force. The Board therefore finds that the activities do not “promote or support or tend to promote or support” Section 3(2)(b) activities.
[39] The Board does not accept that the Society’s submission that Section 3(2)(c) “sexual conduct upon the body of a dead person” is applicable. “The Bride” in the hospital scene is in a coma, she is certainly not dead since she comes out of the coma, and in remarkably short time is wreaking revenge.
[40] The Board finds there are “significant acts of torture and infliction of extreme violence and extreme cruelty” in “Kill Bill Part 1” pursuant to Section 3(2)(f) of the Act. The man attempting to have sexual intercourse with the comatose woman is bitten on the lip or tongue, and killed; the hospital orderly’s head is slammed in the door and he is seriously disabled at least; there are at least two decapitations, one by O-Ren Ishii and the other of O-Ren Ishii, and possibly others in the restaurant scene. The audience sees the results of the massacre at the wedding and there is the massacre at the restaurant.
[41] The Board does not find that the activities in the film pursuant to Section 3(2)(f) however “promote or support or tend to promote or support” the actions. Although the activities do put viewers on the side of “The Bride” and her quest for revenge, the violence is so far fetched, farcical, unreal, and cartoon-like, that it is closer to a “James Bond” operation than to reality. The Board finds the activities are unlikely to be seen by adults as suggesting or tending to suggest emulation would have positive results for the perpetrator, and in fact quite the reverse is so.
[42] The film is scattered with juxtapositions of “The Bride” being shot in the head, spending four years in a coma, snapping out of it and instantly going on a rampage; samurai swords being carried in the plane and the plane flying dreamily low over the city. There is a dream-like transposition from the massacre in the restaurant to a door opening on to a Shinto garden of peace. There are impossible acrobatic acts and the damage is not taken realistically, it is cartoon-like or James Bond-esque. This distances viewers to some extent from real involvement in the violent content.
[43] The Board holds that the portrayals of the matters addressed in Section 3(2) are portrayed in such a farcical manner that they could not be held to “promote or support or tend to promote or support” the activities portrayed.
Section 3(3)
[44] The Board considers in respect to Section 3(3) of the Act, there are features within “Kill Bill Part 1” which “describe, depict, or otherwise deal with” the matters in Section 3(a)(i) being acts of torture, the infliction of serious physical harm or acts of significant cruelty. The particular scenes have been described earlier in this decision, examples being the massacres at the wedding and the restaurant, the decapitations and the individual murders. The Board finds that the “extent” (defined in the Concise Oxford Dictionary as “with or limits of application”) and “degree” (defined in the Concise Oxford Dictionary as “ascending or descending scale or process”) to which these activities are portrayed in the film are significant. The manner however, in which the activities are presented in the film is such, that the potential effect is lessened. The serious consequences of the torture, physical harm and cruelty are not dwelled upon in general, and are portrayed as farcically and unrealistically unharmful.
[45] The Board does have concern about the scene of the four year old child seeing her mother dead in the kitchen. The scene is short and follows efforts to shield the child from violence. The child has no visible reaction to the death of her mother, and “The Bride” , while not apologising for the killing, seems to understand that the child may grow up to hate her for what she has done
[46] Section 3(3)(a)(ii) refers to “sexual violence or sexual coercion or violence or coercion in association with sexual conduct”. Earlier in the decision, reference is made to the paedophilic scene, and the bar scene which involve or suggest sexual activity. In the paedophilic scene the violence is by the child, and sexual conduct by the man with a child is only implied, since both parties are fully clothed, and it is an anime or cartoon sequence. In the bar scene Gogo asks the man if he wants to have sex with her, not the other way around, and she then stabs him. The extent and degree of sexual violence or coercion is therefore limited to often no more than an implication. The manner of portrayal in anime form lessens the impact of the paedophile scene.
[47] In respect to the suggested rape of the comatose woman and the attempted rape of “The Bride” after she has awoken from the coma, these are issues to which Section 3(3)(a)(ii) apply. The issue of the association of rape and violence has been addressed at paragraph 37 of this decision and is applicable to a decision in respect to Section 3(3)(a)(ii) of the Act.
[48] The next question for the Board is the issue of “the extent and degree to which, and the manner in which, the publication – describes, depicts, or otherwise deals with” the Section
3(3)(a)(ii) activities. The Board accepts that the activities are described or depicted or dealt with by implication in respect to the implied and attempted rapes. The manner in which the two rape incidents are described and depicted are by an implication, and an attempt. In terms of extent and degree the Board finds the descriptions and depictions are not graphic, involve clothed
bodies, and are not portrayed in a voyeuristic manner.
[49] In respect to Section 3(3)(a)(iii), the Board has applied the Concise Oxford dictionary definition of “divest of human characteristics; make impersonal or machine-like” to “dehumanise”, it not being defined in the Act. The Board has applied the Concise Oxford dictionary definition of “lower the dignity of” to the term “demean”, it not being defined in the Act either. “Degrading” is defined in the Concise Oxford dictionary
as “to bring into dishonour or contempt” and used by the Board accordingly.
[50] The rape of a comatose woman must be a “degrading, dehumanising, or demeaning act”, but it was implied only and hence “the extent and degree and the manner in which” that issue is dealt with in “Kill Bill Part 1” is more limited.
[51] In respect to Section 3(3)(a)(iv) which involves “sexual conduct with or by children or young persons or both”, there is implied sexual conduct between O-Ren Ishii when she sits astride the yakuza and then kills him, and in the bar scene with Gogo. The fact all parties are clothed or it is an anime scene reduces the impact.
[52] When considering Section 3(3)(c) of the Act, it is accepted that the number of characters killed without any identity in the film may be seen to have been dehumanised. There is also an example of the man who had his sword cut into pieces and is then smacked on the bottom by “The Bride” and told to go home to his mother; this may be seen as demeaning. These are not major features in the film, although the restaurant scene is major. The scene is taken into account by the Board in making its decision.
[53] In respect to Section 3(3)(d), the film’s portrayal of, for instance murder and assault, is too exaggerated, in the vein of a James Bond spoof, to be taken seriously as promoting the criminal acts that are portrayed in it.
Section 3(4)
[54] The next section of the Act the Board must consider is
Section 3(4).
[55] The Board considered the dominant effect of “Kill Bill Part 1” pursuant to Section 3(4)(a) of the Act. In The Society for the Promotion of Community Standards Inc. v Waverley International (1988) Ltd [1993] 2 NZLR 709 at 718, Tipping and Jaine JJ stated:
“When speaking in S11(1)(a) of the dominant effect of material, Parliament was clearly speaking of the effect of the material on the minds of those persons to whom it was intended or into whose hands it was likely to go. There is a material distinction between the dominant effect of the
material and its content. Effect looks at the effect on the mind of the reader. Content looks of course to what the material in question contains or portrays”.
[56] The Board finds that the dominant effect of “Kill Bill Part 1” is of a cartoonish, ultra surreal even unreal movie. It refers to different genres from movie history through the different styles used in each scene. It is not intended to be serious, it is James Bondish, with Monty Python style black humour, such as in “Monty Python and the Holy Grail”, where the Black Knight gets each of his limbs excised in a fight with an accompanying and sustained gush of blood from each of the wounds. The film is action packed. The dominant effect on the mind of adult viewers is likely to be that “Kill Bill Part 1” is not intended to be a serious film reflecting reality.
[57] In considering the impact of the medium under Section
3(4)(b) of the Act, there is spectacular cinematography and sound track, with excellent choreography and use of colour. The impact of the film is likely to be generally high.
[58] The character of the publication pursuant to Section
3(4)(c) of the Act, including “any merit, value, or importance to literary, artistic, or other matters” was considered. There are mixed media reviews but the film is generally well directed and creative. It is an accomplished pastiche of numerous martial arts genre. Tarantino is a noted director, recognised by film experts and the wider movie-going public.
[59] Pursuant to Section 3(4)(d) of the Act, the film is aimed at adults who like action, black humour, and a pastiche of 1970’s movies. It also appeals to Tarantino followers. As this is part one of a two part film, it may have a message beyond part one.
[60] In respect to Section 3(4)(f) of the Act, the Board finds that classification it has given to the film “Kill Bill Part 1” is also appropriate as classification for video and DVD formats of the publication. This is not a publication which should be limited so much by format as by age. The issue of DVD and video release of the publication will be addressed later in this decision.
EXCISIONS
[61] Pursuant to Sections 32 and 55(2) of the Act, the Board has the power to make excisions to a film if, after examining it,
the Board is of the opinion that it would classify the film differently according to whether excisions occurred.
[62] The Society sought in both their written and oral submissions that excisions be made. Excisions are requested by the Society on the discussion in the hospital room between the orderly and the other man, the scene where the orderly’s head is slammed in the door, the two decapitations, and the bar scene involving Gogo, earlier described in this decision.
[63] The Board considered each of the proposed excisions in turn and holds that the excisions sought are such integral parts of the film that it would reduce the sense of the film to a large degree if they were made. The discussion in the hospital room encourages sympathy for “The Bride” for the mayhem that she is to participate in throughout the film. The head in the door scene once again encourages audience sympathy for “The Bride” and sets the scene for the carnage later in the film when “The Bride” gets her revenge. Similarly the decapitations are stylised and unreal, but set the tone for the film. They are examples of the farcical nature of the film and of the absurdity and exaggeration involved. The bar scene with Gogo sets up her character as absurdly “wooden”. She is portrayed as emotionless and humourless in the extreme, which adds to the black humour of the film.
[64] It is the Board’s view that if any of the excisions sought by the Society were made, it would reduce the overall purpose and effect of the film to such a degree as to change the publication significantly. The Board further finds that the unreal, cartoonish and exaggerated nature of the activities reduces the effect of the violence in the scenes.
THE BILL OF RIGHTS
[65] In making its decision in respect to “Kill Bill Part 1” the
Board has considered the Living Word decision which states:
“The balancing required by s 3 must be infused by due consideration of the application of the Bill of Rights”
[66] The Board finds that the decision it has made is the least restrictive available to it, in accordance with the considerations it must have regard to under the various sections of the Act and the Bill of Rights.
[67] In Moonen 1 the Court of Appeal suggested that it may be helpful to the Board in performing its functions to follow a 5- step process. In a later decision Moonen v Film & Literature Board of Review [2002] NZCA 69; (2002) 2 NZLR 754, 760 (hereinafter referred to as “Moonen 2”) the Court of Appeal did, however, emphasis that the 5-step approach was not intended to be prescriptive and that other approaches are open. The Board notes that it does not find the application of the 5-step approach altogether easy, and notes that aspects of the approach would appear to require the Board to make judgements on the consistency with the Bill of Rights of the 1993 Act. The Board further notes that the Court of Appeal did say in Moonen 1 that the approach was potentially difficult, and that the full Court of the High Court in Moonen 2 (Moonen v Film & Literature Board of Review (No. 2) (2002) NZLR 385, 366) echoed these sentiments saying that
“We have not exactly found the approach easy of practical application”.
[68] The Board would prefer a simpler approach which recognised that in interpreting and applying various concepts such as “promotion and support”, “injurious to the public good”, freedom of expression is required to be considered together with the reasonable limits on that freedom that the 1993 Act provides for. In the earlier part of this decision, the Board has emphasised that in classifying this publication it has been conscious of the importance of freedom of expression and has attempted to limit that freedom only to the extent that it is permitted by the 1993
Act, and in a manner that is proportionate to the harm that an un- excised version of the film/video and an unrestricted classification would cause. Nonetheless, it appears sensible for the Board to continue to utilise the 5-step approach for the present.
[69] In the Moonen 1 decision the Court of Appeal held that a
5-step approach may assist in reconciling the relevant provisions of the Bill of Rights Act with those of the Classification Act.
[70] The first two steps are to identify the different possible interpretations of the word or words in the Act and if only one meaning is properly open to adopt it. The phrases in s 3 of “promotion and support” and “injurious to the public good” have been defined and the Board is bound to apply the definitions of the appropriate words in the sections in the Act, and in case law, and has done so. The Board has defined “demean”, “dehumanise”, “extent”, “degree” and “coercion” by way of dictionary definition and applied the definitions in as
least restrictive manner possible. There are no definitions for these terms within the Act or in applicable case law.
[71] Step 3 of Moonen 1 involves identifying the extent if any to which “the meaning adopted limits” the “relevant right or freedom”. It is acknowledged that the meaning identified in respect to important phrases defined in the Act, in case law and dictionary definition does limit rights and freedoms under the Bill of Rights Act, especially s 14. S 14 provides for the right to freedom of expression, including the right to seek, receive and impart information and opinions in any form. This freedom includes the right to produce and receive material of a sexual, criminal, cruel or violent nature as seen in “Kill Bill Part 1”. As the Act under which this publication is reviewed is a Classification Act it is acknowledged that it limits the scope of the right of freedom of expression by defining publications objectionable pursuant to s 3 of the Act. The rights of free expression of film makers, producers, distributors and viewers are all restricted by the definition of words within the Act and the objectives of the Act. The extent to which these rights are restrictive is commensurate with the type of restriction placed on the film, in this case a restriction to persons aged 18 years or over. Potential viewers under the age of 18 years are restricted in their right to view “Kill Bill Part 1”. All those involved in production, distribution, promotion and exhibition of “Kill Bill Part 1” are restricted from having persons under the age of 18 years view the publication.
[72] The Board is then required to consider whether the extent of such limitation, if found, can be demonstrably justified in a free and democratic society. The objective of the Act is to provide a classification and censorship system in respect to publications, as set out in the long and short titles of the Act. The way in which the objective is achieved must be reasonable in proportion to the importance of the objective, and interfere as little as possible with the right or freedom affected. The Board has had to balance the value of freedom of expression against the need of protected persons under 18 years from being exposed to scenes of sex, crime, cruelty and violence.
[73] Pursuant to the 5th step in Moonen 1 the Board considers the limitations it has placed on “Kill Bill Part 1” are justified on balance, taking into account the intention of the Act under which the Board is required to make its decision. It is the Board’s view that its decision can be demonstrably justified in a free and democratic society.
THE AGE RESTRICTION
[74] It is the Board’s opinion that restriction of viewing by persons under 18 years, is justified due to society’s wish to protect children and young persons from likely injury, yet providing the minimum interference with the rights under the Bill of Rights Act.
[75] The Board cites the comments made in the Board’s decision dated 8 September 2000 in response to the Court of Appeal’s direction to the Board in Moonen 1 (p 10). The Board, in that decision, makes reference to the intent shown by Parliament in passing the Act to balance the rights of freedom against the need to protect the vulnerable in society.
“It is clear that the House was well aware of the necessity of considering other rights in this context, particularly the right to freedom of expression, and of achieving an appropriate balance. It is also clear, however, where they considered that that balance should be:
That gets to the heart of this legislation. How does one achieve that balance between on the one hand the rights of people to do what they see fit in the privacy of their own homes, and on the other hand the greater public good? I think that the answer to that question is that we have to look
at the harm that activities, even those ostensibly conducted in
private, have the potential to do to innocent victims in particular. I think that for my part I would certainly err on the side of the public good, and if that means at least in a literal sense restricting individual rights, then I think the cause here is so important that we should be prepared to do that.” John Blincoe (1992) NZPD p 12775.
[76] It is the Board’s expert opinion because of the extent and nature of the activities in Section 3(i) of the Act in“Kill Bill Part
1” and the way they are presented, it “is likely to be injurious to the public good” if the publication is not restricted to those aged
18 years or over.
DIFFERING MEDIA
[77] In making its decision the Board has considered the differing media “Kill Bill Part 1” could potentially be released under, including film, video and DVD, for sale or hire. The release of the publication in video or DVD format is an area of significant concern to the Society.
[78] The Board has considered Section 3(4)(b) earlier in this decision and finds that if “Kill Bill Part 1” is released on video or DVD in identical format to the film, the video and DVD formats should hold the same classification as the film. The concern about possible home use or mis-use of “Kill Bill Part 1” without adherence to the Board’s classification is possible, but the Board does not find that “Kill Bill Part 1” reaches the higher end of the R18 spectrum of films. The Board finds that the current warning on the film that it “Contains graphic violence and offensive behaviour” is sufficient.
[79] The Board is not in a position to prevent for breaches of the classification and must rely on those with the task of enforcement to undertake those duties diligently.
[80] In respect to television use of “Kill Bill Part 1” the Board is required to consider such use pursuant to the decision of Hammond J in Society for the Promotion of Community Standards Inc. v Film & Literature Board of Review re Baise- Moi AP 76/02 Wellington 12 June 2002. The Board finds that television programmes are dealt with under the Broadcasting Act
1989 and are beyond the jurisdiction of this Board.
DISPLAY CONDITIONS
[81] The Board has considered display conditions in respect to Section 27 of the Act. The film “Kill Bill Part 1” is objectionable except if the availability of the publication is limited to persons who have attained the age of 18 years.
Dated at Rotorua this 3rd day of March 2004.
Claudia Elliott
President, Film and Literature Board of Review
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