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New Zealand Film and Literature Board of Review |
Last Updated: 8 May 2010
IN THE MATTER of The Films, Videos, and
Publications Classification
Act 1993
AND
IN THE MATTER of an application under
Section 48 of the Act by the Society for the Promotion of Community Standards Inc., of the publication “9 Songs”
also known as “Nine Songs.”
DECISION OF THE
FILM AND LITERATURE BOARD OF REVIEW DECISION NUMBER ONE
THE BOARD
1. Claudia Elliott, President
2. Greg Presland, Vice President
3. Peter Cartright
4. Brian McDonnell
5. Marion Orme
6. Lalita Rajasingham
7. Stephen Stehlin
8. Ani Waaka
Meeting at Wellington on 08 June 2005.
APPEARANCES
i) Mr Mike Petrus and Mr Des Chambers for the Society
for the Promotion of Community Standards Inc., (hereinafter called “the Society”)
called “the Film Festival Trust”)
THE CONTRIBUTORS
[1] The Society.
[2] The New Zealand Film Festival Trust.
[3] The Office of Film and Literature Classification
(hereinafter called “the Classification Office”).
BACKGROUND
[4] The Society has applied for a review of the decision of the
Classification Office pursuant to Section 48 of the Films, Videos, and Publications Classification Act 1993 and the Amendment Act
2005 (hereinafter called “the Act”) in respect to the publication “9
Songs”.
[5] “9 Songs” was classified “objectionable except if the availability of the publication is restricted to persons who have attained the age of 18 years” by the Classification Office. The decision was entered into the Register of Classification Decisions
by the Classification Office on 25 February 2005.
[6] The application by the Society was received by the Department of Internal Affairs (hereinafter called “the Department”) on 17 May 2005. The application complies with Section 48 of the Act.
[7] Pursuant to Section 52 of the Act the Film and Literature
Board of Review (hereinafter called “the Board) examined the
publication without regard to the decision of the Classification
Office.
THE FILM
[8] “9 Songs” is 67 minutes long including the feature and one
notice. The film relates the story of a relationship between Matt, an
Englishman and 21 year old Lisa, an American. The couple meet
at a concert and commence a relationship. Stages of the relationship are described in the lyrics of the songs that are played
at the nine Concerts they attend. The narrative is told in flashbacks by Matt.
[9] There are explicit depictions of the couple engaged in sexual intercourse, shots of Matt working in Antarctica, and shots
of well known bands playing live.
SUBMISSIONS
A. The Society’s Submission
[10] Comments on the quantity of explicit sexual material in the
film.
[11] Refers to an allegation that the main female actress asked to not have her name appear on the final credits of “9 Songs.”
[12] Refers to a number of media reviews.
[13] Seeks that “9 Songs” be classified objectionable “because of the extent and degree and manner of it’s explicit depiction of sexual acts combined with offensive sexual language and its normalization of the use of banned drugs.”
[14] Sections 3 (3) (a) (iii) and 3 (3) (d) of the Act apply.
[15] “The content of the film in its focus on explicit sexual activity
is comparable to hard core porn. The film has been savaged by the critics for its lack of any character
development, absence of any story line and the appalling
acting.”
[16] Notes “this film has received major media attention in New
Zealand because of the major controversy it has created overseas due to the extent of its sexually explicit and provocative content that takes up almost half of the running time of the film, as well as the fact that such content has never before been screened in public cinemas before.”
[17] “Researchers looking at the effects of pornography accept that it can have degrading or dehumanising or demeaning elements of such an extreme nature, that the extent or degree
or manner of the depiction, can have a corroding impact and corrupting effect on certain viewers such that public good is injured through its availability.” (Section 3 (3) (a) (iii) )
[18] “Whether or not sexual activity is consensual is not strictly relevant when considering the dominant effect of the publication as a whole on the mind of the viewer, for a number of reasons:
i) it certainly has no bearing in relation to assessing S 3 (2) activities as the Censor has no discretion when activities are identified in the content that fall within any one of the deeming provisions (a) through to (f).
ii) the question of consensual versus non consensual activity cannot be relevant when it comes to depictions of acts of torture, drug taking etc., all listed in S 3 (3) when the activities are promoted, or with respect to assessing sexual acts that are of a degrading, demeaning or dehumanising nature.
iii) the Censor’s task is to consider the potential injury to the public based on the dominant effect and impact of the activity depicted on the viewer.
If two individuals are filmed engaging in dehumanising sexual activity that is consensual or non consensual, the publication containing a high extent and degree of content of this nature, must be classified ‘objectionable’ unless there are counterbalancing merits in the film clearly identified under S 3 (4).”
[19] Public standards of decency prevent persons engaging in
public displays of sexual acts, such behaviour being criminal.
[20] The right of freedom of expression is limited by the provisions of the Censorship Laws.
[21] The majority of the New Zealand public do not want sexually explicit content in public cinemas.
[22] The “proliferation of sex crimes against women and children has risen in tandem with the ever increasing exposure of the public to explicit sexual content in the media, films and internet.”
[23] “The Society takes the view that intimate sexual expression within a committed marriage involving a man and a woman
is a celebration of one of the greatest gifts of God to human kind. The Society objectives affirm that we hold to the view
that man is made in the image of God and therefore that which degrades, demeans and dehumanises man and his
personal relationship is intrinsically wrong. The majority
of New Zealanders hold to these broad theistic principles.”
[24] “Sexual intimacy is debased when it is portrayed in a deliberately explicit manner, panders to the voyeur in its design to titillate and incite lust, and is exploitative; whether
or not it takes place within loving relationships, or involves consensual or non consensual acts.”
[25] Refers to Section 3 (3) and holds that the drug use in the film
is a criminal act and “the film shows no counterbalancing aspect to illustrate the downside of criminal drug use and therefore by this omission serves to only promote and normalise its use.”
[26] “It is well recognized by film reviewers that the film-maker deliberately incorporated very high levels of sexually explicit content in the film to be provocative, push the accepted boundaries of what is acceptable in cinema viewing and create notoriety based on offensiveness and
flaunting his close-up shots of exposed genitalia in the sex
act.”
[27] In respect to impact of the medium “a film with this level of sexually explicit content has a high impact.”
[28] In respect to Section 3 (4) (c) “the film has little if any merit.”
[29] In respect to Section 3 (4) (d) the film will be available for viewing to all persons over 18 in the Film Festival setting.
[30] In respect to Section 3 (4) (e) the film is likely to receive general release and DVD release.
[31] In respect to Section 3 (4) (f) if rated R18 the film can be shown on television in adult viewing times.
[32] The film should be classified “ ‘objectionable’ because of the extent and degree and manner of its explicit depiction of sexual acts combined with offensive sexual language and its normalisation of the use of banned drugs by young persons.”
B. Submission of the Film Festival Trust
[33] Accepts that Section 48 has been complied with.
[34] Refers to Sections 3, 4, 23 and 52 of the Act and Case Law.
[35] Accepts that “9 Songs” passes through “the gateway” in
Section 3(1) in respect to sex.
[36] Section 3(2) does not apply although there are some scenes
of mild sexual violence there is no compulsion involved to submit to sexual activity.
[37] In respect to Section 3(3) Section 3(3)(a)(ii) and (v) may apply.
[38] In terms of Section 3(3)(a)(ii) the scene of Matt gently holding Lisa’s throat shows no intention to strangle or inflict pain. Lisa stands on Matt’s chest at his invitation and there
is no apparent intention to cause him injury. The
participants do not lose control or behave aggressively in
either scene.
[39] In terms of Section 3(3)(a)(v) Lisa appears to derive sexual satisfaction from Matt holding her throat. When Lisa stands
on Matt’s chest, although done within a sexual context, there
is no focus on sexual activity at the time. It is therefore questionable whether Matt derives sexual satisfaction from Lisa’s actions.
[40] The extent and degree and manner in which these activities are depicted are relevant. Lisa’s throat is held gently for a short time, and she does not resist or appear to feel threatened. The stiletto scene is also short, consensual and there appears to be minimal pain. The activities are non threatening and experimental.
[41] In respect to the dominant effect in Section 3 (4) (a) although voyeuristic and arousing to some, this is not the film-maker’s principal objective. The film is deliberately distinguished from pornography by the sexual activity taking place in a loving and monogamous relationship. The focus
is more on the actors faces than on their genitalia. The experimental sex is awkward at times unlike pornographic films. There is open use of condoms.
[42] The film is principally concerned “with presenting a realistic and unglamorous view of sex and relationships....an impromptu and exciting encounter in the kitchen, for example, is followed seconds later by the mundane proposal of ‘coffee’?”
[43] “9 Songs” is a “deliberately honest, unglossed and original comment on sex and relationships. Its dominant effect is to challenge the viewer with a close-up and unflinching study
of sexual behaviour in the context of an ‘everyday relationship’.”
[44] In respect to Section 3(4)(b) cinema presentation will increase the impact of the sexual images, but viewers reactions will be constrained by being in a populated theatre. Viewers will be unable to control the images presented to them.
[45] In video or DVD format even if manipulated there are no
scenes in the film “that, when viewed out of context, have the potential to convey damaging messages or incite illegal or
injurious behaviour.” This is compared with “Baise-Moi”.
[46] In respect to Section 3(4)(c) “ ‘9 Songs’ has particular value as a robust and unpretentious portrayal of an ordinary sexual relationship. In this sense, the film is a valuable social experiment, and from an artistic perspective, commentary on traditional modes of representations of relationships and sex.”
[47] The film’s Director Michael Winterbottom is renowned for bringing fresh perspectives to familiar genre.
[48] In respect to Section 3(4)(d) the restriction to R18 and Festival release “9 Songs” is likely to be limited to those with an interest in Winterbottom’s work or “Art-house” films.
[49] In respect to Section 3(4)(e) the purpose for which it is intended, is likely to be for those with an interest in Winterbottom’s work or “Art-house” film in general. Winterbottom’s work has an academic following.
[50] The potential for harm from “9 Songs” is minimized by the absence of any S 3(2) activities and the limited impact of S
3(3) activities. “Specifically, none of the potentially sexually arousing scenes in the film involve coercion, degradation or
serious sexual violence.”
[51] In respect to Section 3(4)(f) the New Zealand Film Festival
is a serious Film Festival. It selects films that have been successful at renowned overseas Festivals. It attracts thoughtful audiences with academic and/or personal interest
in art and film.
[52] The relevant overseas classifications for “9 Songs” are R18
in Australia and Britain.
[53] In comparison with other recently classified films in New
Zealand such as “Baise-Moi” “9 Songs” should be classified “objectionable except if the availability of the publication is restricted to persons who have attained the age of 18 years.”
[54] A descriptive note should state “contains explicit sex scenes and drug use.”
[55] Refers to an alleged statement by the Society “that this film raises real problems because there is probably nothing really it could be captured under (in Censorship Laws) to ban it.......but by allowing it we are signalling that hard core pornography is acceptable in public places.”
[56] The review process is an inappropriate avenue for the
Society to make its point.
C. Submission of the Classification Office
[57] Accepts that Section 48 has been complied with.
[58] Refers to Section 52 (2).
[59] Notes that “9 Songs” has been classified: Australia R18+
France 18
Hong Kong III (18) Ireland 18
Japan 18
Switzerland 18
United Kingdom 18
Germany 16
Iceland 16
[60] There is no jurisdiction to ban “9 Songs” on the basis of the Society’s request that it be banned “because of the extent and degree and manner of its explicit depiction of sexual acts combined with offensive sexual language and its normalization of the use of banned drugs.”
[61] It is accepted that Section 3 (1) “gateway of sex” is met but notes “while sexual activity is explicitly depicted, the film’s
primary focus is on the facial expressions and reactions of
the participants. Sex often takes place in dimly lit rooms where detail is difficult to discern. Sexual conduct does not appear to be contrived for the camera but rather appears to take place within the context of a loving, adult relationship.”
[62] “The Office finds it difficult to ascertain how any of these depictions degrades, dehumanises or demeans any person in terms of Section 3 (3).”
[63] The dominant effect of the film is “of a love story that portrays genuine emotion and sexual intimacy in a natural, realistic and engaging manner. 9 Songs challenges viewers
to overcome their sense of voyeurism and view the depictions of sex as merely one facet of the couple’s time together......”
[64] Quotes from the British Board of Film Classification 2004
Annual Report.
[65] Refers to positive reviews of the film.
[66] “For 12 years the Films, Videos, and Publications
Classification Act 1994 has permitted the public exhibition
of sexually explicit films to those adults who chose to view them.”
[67] Refers to the Court of Appeal Decision on “Baise-Moi” which stated “that the Board could not classify a film differently to a video or DVD of the same publication.”
[68] Refers to the Society’s comment in the Sunday Star Times
of 07 November 2004 and states “the Society has already publicly conceded that the Board of Review has no power to
grant the remedy it seeks.”
THE APPLICABLE LEGISLATION
[69] In making its decision the Board is bound by the Act. The
applicable sections in order are:
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 infliction 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.
As amended by S4 of the Amendment Act 2005
4. Meaning of objectionable
(1) Section 3 of the principal Act is amended by inserting,
after subs3ection (1), the following subsections:
“(1A) Without limiting subsection (1), a publication deals with a matter such as sex for the purposes of that subsection if –
“(a) the publication is or contains 1 or more visual images of 1 or more children or young persons who are nude or partially nude; and
“(b) those 1 or more visual images are, alone, or
together with any other contents of the publication, reasonably capable of being regarded as sexual in nature.
“(1B) Subsection (1A) is for the avoidance of doubt.”
(2) Section 3(3) and (4) of the principal Act is amended by inserting, after the word “should” to both places where
it occurs, the words “in accordance with section 23(2)”.
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.
(2) After examining a publication, and having taken into account the matters referred to in section 3 of this
Act, the Classification Office shall classify the publication as-
(a) Unrestricted; or
(b) Objectionable; or
(c) Objectionable except in any one or more of the following circumstances:
(i) If the availability of the publication is
restricted to persons who have attained a specified age:
(ii) If the availability of the publication is restricted to specified persons or classes of persons:
(iii) If the publication is used for one or more
specified purposes.
(3) Without limiting the power of the Classification
Office to classify a publication as a restricted publication, a publication that would otherwise be
classified as objectionable may be classified as a
restricted publication in order that the publication may be made available to particular persons or classes of persons for educational, professional, scientific, literary, artistic, or technical purposes.
Cf. 1963, No. 22, s. 10; 1983, No. 130, s. 15 (1), (2);
1987, No. 85, s. 23 (1)
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)
32. Excisions from and alterations to films – Notwithstanding anything in section 23 of this Act, if, after examining a film under this Part of this Act (other than a film referred to it pursuant to section 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)
The New Zealand Bill of Rights Act 1990
[70] The following sections of the New Zealand Bill of Rights
Act 1990 (hereinafter 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
[71] The Board unanimously classifies “9 Songs” as
“objectionable except if the availability of the publication is restricted to persons who have attained the age of 18 years.”
Section 3(1)
[72] 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”.
[73] The Act does not define the phrase “injurious to the public good” so case law is relied upon to assist.
[74] 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”.
[75] 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.”
[76] The Board considers pursuant to Section 3(1) of the Act that the publication passes through the “gateways” of sex and crime in that it “depicts or expresses or otherwise deals with” matters of sex and crime in such a manner that the unrestricted availability of the publication is likely to be “injurious to the public good.” The Board also considered violence as a “gateway” issue but finds in inapplicable.
[77] The “gateway” of sex involves depictions of digital vaginal penetration, cunnilingus, fellatio, masturbation, the use of a vibrator, vaginal intercourse and one depiction of Matt ejaculating onto himself as Lisa masturbates and fellates him. There are close-up focus shots of cunnilingus, vaginal
penetration and fellatio, but the film’s primary focus is on
the facial expressions and reactions of the participants.
[78] There is some sexual language when Lisa invites Matt to
“fuck me.”
[79] The “gateway” of crime is also met in the use of illegal drugs. There was sniffing of a substance and reference to other drug use, with Lisa vehemently taking offence asserting that she was taking prescription pills. The Board notes however that her mood moves quickly from lethargic
to enthusiastic after she has taken the pill.
[80] The Board has considered the “gateway” of violence in respect to “9 Songs.” The Act does not provide a definition
of violence and the Board therefore relies on the Oxford
Dictionary definition:
“involving great force, strength, or intensity, involving the unlawful use of force.”
[81] The Board accepts the Film Festival Trust’s submission that there are some aspects which touch upon violence, including the scene where Matt holds Lisa gently by the throat, and secondly where Lisa stands on Matt’s chest while wearing stiletto heeled boots.
[82] The Board accepts the Film Festival Trust’s submission in this regard, that there is no intention to strangle or inflict pain on Lisa when Matt holds her throat. Neither did the stiletto heel incident, appear to cause damage to Matt. There was a brief exclamation, a momentary indentation in his chest and no significant pain shown on his face. The Board therefore does not find the “gateway” of violence is met.
[83] The Board must then consider whether the publication describes, depicts, expresses or otherwise deals with sex and crime, in such a manner that availability of the publication is “likely to be injurious to the public good.”
[84] The Board finds the depictions of sex and crime are shown
in sufficient frequency and detail in “9 Songs” as to be likely
to be “injurious to the public good” unless restricted.
Section 3(2)
[85] As the Board finds the threshold in Section 3(1) of the Act
has been met, it must consider whether the activities in Section 3(2)(a) to (f) of the Act exist in “9 Songs.” 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.
[86] The decision of Moonen v Film and Literature Board of Review [1999] NZCA 329; (2000) 2 NZ LR 9 (hereinafter called “Moonen 1”) assists in 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.
S3(2)(b)
[87] S3(2)(b) involves the use of violence or coercion to compel
any person to participate in, or submit to, sexual conduct.
[88] Coercion is not defined within the Act and therefore a Dictionary definition is once again employed from the Oxford Dictionary:
“Coercion – compelled by threats or force.”
[89] In respect to Section 3(2)(b) the Board does not find that there is infliction of violence or coercion in respect to sexual conduct in “9 Songs.” The two incidents of the holding of Lisa’s throat, and the use of the stiletto heel do not show
serious physical harm and are not undertaken in the context
of loss of power.
[90] The Board accepts The Film Festival Trust submission that although some scenes involve what might be termed mild sexual violence, neither of the characters involved are compelled to submit to sexual activity. Neither character is coerced through the use of violence or otherwise to participate in the sexual activity.
[91] The Board finds S3(2)(b) does not apply.
S3(2)(f)
[92] S3(2)(f) applies to acts of torture or the infliction of extreme
violence or extreme cruelty.
[93] The Board also considered S3(2)(f) of the Act and does not find there was any infliction of extreme violence or extreme cruelty. The incident of the hands around the throat and the stiletto heel do not come within that definition. There are no apparent physical damage to either Lisa or Matt in respect to the throat or stiletto incidents.
[94] The Board finds that Ss3(2)(a)(c)(d)(e) and (f) do not apply
to “9 Songs.”
S3(3)
[95] Having found that Section 3(2) of the Act does not apply in
any respect the Board is required to consider Section 3(3) of the Act. In considering this section the Board must give
“particular weight” to “the extent and degree to which and
the matter in which” the “publication deals with the matters
in subparagraphs (a) to (e) of the section.”
S3(3)(a)(i)
[96] S3(3)(a)(i) refers to the extent and degree and manner in
which torture, the infliction of serious physical harm or activities of significant cruelty applies to “9 Songs.”
[97] As explained in respect to S3(2)(f) earlier in this decision,
the incident of Matt holding Lisa’s throat and Lisa standing on Matt’s chest in stiletto heeled boots show no physical consequences such as bruising or breaking the skin, nothing more than a fleeting exclamation of pain, no resistance from Matt to the activity, and cannot be termed serious physical harm or significant cruelty. The behaviours were a part of the couples experimental activities in their developing sex lives.
S 3(3)(a)(ii)
[98] The Board finds that Section 3(3)(a)(ii) does not apply to “9
Songs” in that there is no sexual coercion or violence or coercion in association with sexual conduct.
[99] The throat incident is gentle and appears to have little effect beyond some pleasure for Lisa. Similarly the stiletto heel incident does not appear to physically impair or damage Matt.
[100] The sexual relationship between the couple develops and has some experimental aspects, but there does not appear to be any unwillingness to participate by either at any stage.
[101] Both incidents are small portions of the publication, which are not progressed in any way later in the relationship or the publication.
S3(3)(a)(iii)
[102] The Board has considered S3(3)(a)(iii) as to whether the
sexual or physical conduct in as depicted in “9 Songs” is
“degrading, demeaning or dehumanising.” The “extent and degree” of the activity must also be considered.
[103] The terms “degrade, demean dehumanise” are given the concise Oxford Dictionary definition as follows:
“Degrade – reduce to lower rank; debase” “Demean – lower dignity of”
“Dehumanise – divest or deprive of human qualities”
[104] The Society’s submission is that it holds “to the view that
man is made in the image of God and therefore that which degrades, demeans or dehumanises man and his personal
relationships is intrinsically wrong.... Within this
philosophical framework sexual intercourse and all of the elements of intimate sexual expression are very good and are life enhancing and blessed by the Creator.... Sexual intimacy is debased when it is portrayed in a deliberately explicit manner, panders to the voyeur in its design to titillate and excite lust, and is exploitative; whether or not it takes place within loving relationships or involves consensual or non-consensual acts.”
[105] The Classification Office states “the thrust of the Society’s argument appears to be it’s concern that the R18 classification of ‘9 Songs’ allows the film ‘to invade our public cinemas.’ The Society is well aware that the Act does not provide for a classification that excludes sexually explicit material from cinemas, or that limits such material
to video or DVD formats ........ for 12 years the Films, Videos, and Publications Classification Act 1994 has permitted the public exhibition of sexually explicit films to
those adults who choose to view them.... Further, by
commenting in the Sunday Star-Times of 07 November 2004 that the film ‘raises real problems because there is probably nothing really it could be captured under (in Censorship Laws) to ban it,’ the Society acknowledges that the correct application of the Law will not result in a ban of ‘9 Songs.’
The Society has already publicly conceded that the Board of
Review has no power to grant the remedy it seeks.”
[106] The Board finds that the mere depiction of non violent and consensual sexual activity in film, video or DVD does not “degrade, dehumanise or demean” any person per se.
[107] The Board therefore finds that Section 3(3)(a)(iii) of the Act does not apply.
S3(3)(a)(v)
[108] The Board similarly finds that this section does not apply as
there is no evident sexual satisfaction obtained from inflicting or suffering cruelty or pain.
[109] Lisa does seem to find some enjoyment from her throat being held, but does not appear to be suffering pain. The extent and degree of this incident is limited to one brief episode. There is no indication that Matt received sexual satisfaction from holding Lisa’s throat.
[110] Similar arguments apply to the stiletto heel incident. The incident occurred in a sexual encounter but the sexual activity was not emphasised.
S3(3)(c)
[111] The arguments in respect to the Society’s view that the
depiction of non violent consensual sexual activity on film, video or DVD “degrades, dehumanises or demeans” any person is not accepted by the Board.
S3 (3) (d)
[112] The Board accepts that there is apparent use of illegal drugs.
The Board does not find that the illegal use of drugs is promoted or encouraged.
[113] The drug use is almost stated as a fact of life in the era, and for the generation of Matt and Lisa are a part.
[114] When Lisa is shown to swallow a pill, Matt tells her she should not be taking pills so early in the day. Lisa denies that the pill is other than prescribed medication. This may indicate an acceptance that the use of illegal drugs is undertaken, but not promoted or supported at least in the morning.
S3(4)
[115] The Board must consider all of the matters in Section 3(4) of
the Act.
S3(4)(a)
[116] The dominant effect of the publication as a whole, is an
attempt to explore predominately, one dimension, of a relationship. It is an episodic, and loosely structured account
of the love affair of two young people, foregrounding their sexual relationship.
[117] Much of the film comprises music clips of the couple attending live music shows, and the sexual activity that is a
large part of their relationship.
S3(4)(b)
[118] The impact of the medium of film is high. The film is shot
on digital video, it is well lit and naturalistic, in almost a reality TV show style.
[119] The few shots of genitalia are distinguishable from pornographic films, in that the couple’s activities are not shot from unflattering angles, and for the most part there is an emphasis on the actors’ facial expressions and reactions.
[120] At times the sexual activity is experimental and awkward, which do not feature in pornographic films. It is noted that there is also open and routine use of condoms which are discussed by the characters. Again this is not a part of the genre of pornographic films.
[121] The first 10 or 15 minutes of the film are less explicit in terms of sexual activity and drug use than the final stages of
it. The fusion of food, wine and sex in every day activity is natural and uncontrived.
S3(4)(c)
[122] The character of the publication, including any merit value
and importance, is that “9 Songs” is an experimental low budget film. It stretches the boundaries. It is an attempt to use music to describe a relationship. The progression of the sexual relationship reflected and thus represented the stages
of the personal relationship as a whole. Sensual and interpersonal pleasure was most evident in the early stages
of the relationship. Images became more sexual as the
sensitivity diminished, reflecting the erosion of other aspects
of the relationship. Winterbottom was revealing stages of relationships through sexuality rather than through the more
typically used relatively cerebral “romantic” notions. It was
an attempt to artistically weave together music, sexuality, intimacy with the metaphorical Antarctic images, the progression of a relationship that does not last. It is far removed from pornography in intent.
S3(4)(d)
[123] The persons or age groups this publication is intended for is
adults, and aficionados of art films.
S3(4)(e)
[124] The purpose for which the publication is intended to be used
is entertainment. It is thought provoking, with some geographic education, and involves musical appreciation.
S3(4)(f)
[125] Other relevant circumstances relating to the intended or
likely use of the publication include that this publication could be released on video or DVD for sale or hire or made
available for public theatrical use.
[126] There is frequently expressed concern that in non theatrical use, there is a possibility of electronic manipulation for the purposes of titillation.
[127] The Board cannot control the private use or misuse of DVD
and video and must rely on those charged with enforcement
to undertake that task.
[128] The Board accepts that there may well be the public theatrical release or DVD or video release for sale and hire
of “9 Songs.” The Board does not find the scenes in “9
Songs” should be rated differently taking into account that the rating will apply to home viewing.
[129] The Board accepts there is a possibility that “9 Songs” may
also be released on television, but control of the release in that medium is beyond the Board’s jurisdiction. It is dealt with under the Broadcasting Act 1989.
[130] The Board has had submissions put to it in respect to the range of international ratings for the publication “9 Songs” which by majority appear to be R18 with Germany and Iceland at 16.
[131] The Board notes that the Australian rating is R18+ on review.
Excisions
[132] Pursuant to Section 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 an opinion that it would classify the film
differently according to whether excisions occurred.
[133] The Board did not consider excisions in “9 Songs” would change its decision. The sexual content is throughout the publication. The drug use is also a feature of the film.
The Bill of Rights
[134] In making its decision in respect to “9 Songs” 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”
[135] 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.
[136] 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 echoed these sentiments saying that
“We have not exactly found the approach easy of practical application”.
[137] The Board would prefer a simpler approach which recognised that in interpreting and applying various concepts such as “promotion and support” and “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.
[138] 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.
[139] 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 “degrade,” “demean,” “dehumanise” 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.
[140] 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 or criminal nature as seen in “9
Songs.” 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 “9 Songs.” All those involved in
production, distribution, promotion and exhibition of “9
Songs” are restricted from having persons under the age of
18 years view the publication.
[141] 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 and violence.
[142] Pursuant to the 5th step in Moonen 1 the Board considers the limitations it has placed on “9 Songs” 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
[143] It is the Board’s opinion that restriction of viewing by
persons 18 years or over 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.
[144] 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.
[145] It is the Board’s expert opinion because of the extent and
nature of the activities in Section 3(1) of the Act in “9
Songs” 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 of age or over.
Warning
[146] The Board requires the accompanying warning in respect to
“9 Songs”
“Explicit sex scenes and drug use.”
Dated at Auckland this day of 2005.
Claudia Elliott
President, Film and Literature Board of Review
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URL: http://www.nzlii.org/nz/cases/NZFLBR/2005/3.html