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Images [2019] NZFLBR 3 (8 November 2019)

Last Updated: 23 January 2021

DECISION OF FILM AND LITERATURE BOARD OF REVIEW

UNDER the Films, Videos and Publications Classification Act 1993 (“the Act”)

IN THE MATTER of an application under section 47(2)(e) by

(“the applicant”) for a review of the publications titled OFLC Ref: 1900147.000; OFLC Ref: 1900147.002; OFLC Ref: 1900147.003; OFLC Ref: 1900147.005; OFLC Ref:

1900147.006; OFLC Ref: 1900147.007; OFLC Ref:

1900147.008

INTRODUCTION

1. The following members of the Board met in Wellington on 15 October 2019 to consider this application for review:
   

R Schmidt-McCleave (President) N Dunlop (Vice-President) Sandy Gill

G Schott

Dr M Waitoki

2. The publications subject to this review are seven individual images, three of which are a set apparently taken in the same place within a short space of time, and the other four of which are similarly taken in the same place as each other within a short space of time (being a different time and place from the first set) (together, “the images”). Each of the images has been considered separately by the Board and each is described in more detail below in the analysis section.
   
3. All the images depict the same girl, who the applicant advises is his step- granddaughter. It appears to be accepted by all parties that the girl is aged 7-8 years old in the set of three images, and approximately 9 years of age in the set of four images. The Board understands that the images were found amongst a large number of other family images held on the applicant’s computer and were submitted by the New Zealand Police to the Classification Office for classification.
   
4. On 4 July 2019, the Office of Film and Literature Classification (the “Classification Office”) classified the images as objectionable under section 3(2)(a) of the Act.
   
5. Any party to a court proceeding where the Court has referred the publication to the Classification Office pursuant to section 29(1) or section 41(3) of the Act may seek a review of the Classification Office’s decision1.
   

1 Sections 47(2)(c) and 52(3).

6. This means that the Board is required to conduct a review as soon as possible, to examine the images, and to determine their classification. There are three possible classifications: unrestricted or objectionable or objectionable except in one or more specified circumstances.2
   
7. The question of whether or not a publication is objectionable is a matter for the expert judgement of the Board, and evidence as to, or proof of any of the matters the Board is required to consider is not essential to its determination.3
   
8. The applicant does not have the right to appear before the Board, but does have the right to make submissions to it.4 Submissions have been received from the applicant. The Board has the power to invite submissions from the Classification Office and from the New Zealand Police.5 It made that invitation and submissions were received. The applicant was given the opportunity to comment on the submissions from the Classification Office and from the New Zealand Police.
   
9. The Board did not consider it necessary to seek or invite other submissions, or to hold an oral hearing, obtain information, consult with others, or make inquiries and was able to classify the images simply by considering them and reviewing the submissions received.
   

THE KEY LEGAL CONSIDERATIONS

10. Key legislative provisions referred to are set out in the schedule hereto.
    
11. The Board is first required to consider in terms of section 3(1) whether the images describe, depict, express, or otherwise deal with matters such as sex, horror, crime, cruelty, or violence. If the consideration results in a negative answer, then the Board must thereupon classify the images as unrestricted.6
    

2 Sections 23(2) and 55(1)(a).

3 Section 4.

4 Section 53(1).

5 Section 54(1).

6 Section 3(1) In Living Word Distributors v Human Rights Action Group (Wellington) [2000] NZCA 179; [2000] 3 NZLR 570 the Court of Appeal described section 3(1) of the Act as a “subject matter gateway” to being found

12. A publication deals with a matter such as sex for the purposes of section 3(1) if 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 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.7
    
13. If the section 3(1) consideration just referred to results in an affirmative answer, then the next consideration is whether the images are likely to be injurious to the public good.8
    
14. This then requires the Board to consider whether the images are deemed objectionable under section 3(2). This provision has been interpreted by the Court of Appeal,9 which emphasised the high threshold to be overcome for the provision to apply, citing the importance of freedom of expression. The Court of Appeal
    

to be objectionable, in that if a publication does not describe, depict, express, or otherwise deal with matters such as sex, horror, crime, cruelty, or violence, it cannot be classified as objectionable. Once a publication makes it through the subject matter gateway, the Board must then consider whether the subject matter is dealt with in such a manner that the availability of the publication is likely to be injurious to the public good.

7 Section 3(1A). Section 3(1B) states that subsection (1A) is for the avoidance of doubt.

8 Ibid.

9 The relevant decisions of the Court of Appeal are Moonen v The Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9 (Moonen 1 and Moonen v Film and Literature Board of Review [2002] NZCA 69; [2002] 2 NZLR 754 (Moonen 2). In both Moonen decisions, the Court of Appeal espoused the importance of the New Zealand Bill of Rights Act 1990 (BORA) and the fact that the Board must be mindful that, in applying the Act, it must act consistently with BORA. Section 14 of BORA states that everyone has “the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.” Under section 5 of BORA, this freedom is subject “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Further, section 6 of BORA provides that “[wherever] an enactment can be given a meaning that is consistent with the rights and freedoms contained [in BORA], that meaning shall be preferred to any other meaning.” In Moonen 1, the Court of Appeal made the following statement which the Board recognises is key to its consideration of the section 3(2) “deeming” provision for objectionability (at [29]):

“The concepts of promotion and support are concerned with the effect of the publication, not with the purpose or the intent of the person who creates or possesses it. The concepts denote an effect which advocates or encourages the prohibited activity, to borrow the words of Rowles J of the British Columbia Court of Appeal in an allied context in R v Sharpe (1999) 136 CCC 3d 97 at para 184. Description and depiction (being the words used in s 3(3)(a) of the Act) of a prohibited activity do not of themselves necessarily amount to promotion of or support for 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.”

emphasised that description and depiction of a prohibited activity do not of themselves necessarily amount to promotion or support of that activity.

15. If the Board decides that it must deem the images to be objectionable for the purposes of the Act, then it need not consider any further. It must classify the images as objectionable. For the avoidance of doubt, the Board has considered each photo independently and applied the test to each photo (as will be seen below) and is merely referring to them in the plural here for ease of reference.
    
16. If the Board decides that the images are not deemed by the Act to be objectionable, then it must determine whether the images are objectionable, or should be given one of the other classifications (unrestricted or objectionable except in specified circumstances).
    
17. When making a determination as to whether the images are objectionable, the Board must give particular weight to the matters set out in sections 3(3) and must consider the matters set out in section 3(4).
    

SUBMISSIONS

18. As stated, the Board received and considered carefully submissions from the applicant, the Classification Office and the New Zealand Police. These are summarised below.
    
19. First, it is submitted on behalf of the applicant that the images should be classified as unrestricted. He says that none of the images fall within any of the categories set out in section 3(2) and so this is not a case where the images are automatically classified as objectionable. He submits that the relevant consideration is section 3(3)(b), being the degree or extent to which the images exploit the nudity of children. He submits that the images do not so exploit because:
    
    1. They must be considered in the context that they were created and found, being a large collection of family photographs.

2. The likely audience for the photos is the applicant and his whanau.
   
   100. The images were taken as part of a series for the purpose of recording family occasions and memories and were deleted (along with other photographs) suggesting they were of poor quality.
        
   4. There is no suggestion the images were grouped with other objectionable images or shared with other people outside the family.
      

20. In replying to the Classification Office’s submissions as well as those of the New Zealand Police, the applicant criticised what he perceived as the Classification Office evaluation of the images as two series of images. The Board is, however, satisfied that the Classification Office considered each of the images individually as well as making submissions on their effect as part of a series. The Classification Office confirmed this was so in its follow-up submissions in response to the applicant’s submissions.
    
21. The Classification Office, in its submissions, described each of the images before submitting that the only relevant consideration under section 3(1) is whether each image deals with a matter such as sex. The Classification Office notes that in both sets of images the girl is fully clothed (albeit with parts of her genitalia or buttocks exposed) and as such she cannot be said to be partially nude, meaning section 3(1A) does not apply. However, the Classification Office submits, in all the images the viewer’s gaze is drawn to the crotch and/or lower buttock area of the girl, who seems unaware that she is being photographed, with such focus giving the images an overtly sexually voyeuristic tone and therefore it is reasonable to consider them sexual in nature.
    
22. The Classification Office goes on to submit that the focus of the images means the girl’s right to privacy has been violated and her body sexualised in a setting where she has a reasonable expectation of privacy, such that the images are exploitative. The Classification Office submits that there is very unlikely to be any other reasonable explanation for the images other than to satisfy a sexually voyeuristic and prurient interest in young girls. It submits there is no evidence the images have been

inadvertently captured and the way they sexualise the girl by focussing the viewer’s gaze on her crotch tends to promote and support the exploitation of children for sexual purposes. The Classification Office therefore submitsthe images ought to be deemed objectionable under section 3(2) and that such classification is a reasonable limitation on the section 14 New Zealand Bill of Rights Act 1990 right to freedom of expression.

23. Finally, the New Zealand Police set out how the images came to be located and submitted for classification. The New Zealand Police explained that, in the additional photographs in which the images were located, the girl is nearly always aware that her photograph is being taken and there is often another adult present. The New Zealand Police submit that, in contrast, the images are taken in a different location to other family photographs, there is no context in the photographs to any event, no other people are present in the images and they appear to have been taken without the girl’s knowledge and framed to draw the attention to her crotch area. The New Zealand Police therefore submit that the images fall within section 3(2)(a), as well as section 3(3)(b) (exploiting the nudity of children or young persons or both) and section 3(3)(c) (degrading, dehumanising or demeaning any person).
    

DISCUSSION

Do the images describe, depict, express or otherwise deal with matters such as sex, horror, crime, cruelty or violence?

24. As referred to in paragraph 11 above, this is the initial “gateway” issue for the Board to consider under section 3(1).
25. The Board agrees with the Classification Office that section 3(1A) does not apply to any of the images because the young girl is not nude or partially nude in any of the images.
26. The Board has considered all of the images individually and has agreed that each of them meets this gateway test, in that they depict or express sex. Each of the images, to different degrees and in different ways, show an underage girl in sexually suggestive poses. The way each of the images are framed draws the viewer’s

attention to the girl’s crotch or buttocks area, and the area around her is not depicted to any great degree in any of the images. The Board considers each of the images follow the codes and conventions of pornography, with a focus on particular parts of the body and sexually evocative positioning. The Board is therefore each of the images passes the initial gateway test.

27. The next part of the Board’s decision therefore considers whether each of the images can be deemed objectionable, and/or are objectionable due to the other considerations in sections 3(3) and 3(4).
    

IMAGE OFLC Ref: 1900147.000

28. This image, one of a group of three images taken apparently at a similar time and in the same place, is of the girl sitting on a bed looking down at something in her hands (which is not discernible). The girl is not looking at the camera and appears unaware that her photo is being taken. The girl’s right leg is bent up, exposing her crotch area. The focus of the image is her crotch area, covered by underwear, although the shading on the underwear, perhaps inadvertently, suggests the presence of pubic hair.

Should the image be deemed objectionable?

29. The issue under section 3(2) is therefore whether the image promotes or supports, or tends to promote or support, the exploitation of children, or young persons, or both for sexual purposes.
30. In considering this issue, the Board has regard to the judicial interpretation of the subsection referred to in footnote 9 above and, particularly, the high threshold for section 3(2) to apply.
31. The majority of the Board considers that the image does meet this threshold. As stated already, the image has a voyeuristic quality, focussed as it does on the girl’s crotch and the sexually reminiscent pose she is in. The girl is represented as a sexual object and from a perspective where the photographer appears to have been crouched down or leaning in.
32. There appears to be no other reason for the photographer capturing the image in this way and it is not a depiction normally found in photos of children and young people.

The Board does not consider this to be an image that is taken by accident. The majority of the Board considers that the image therefore tends to support the sexual exploitation of children.

33. One member of the Board did not consider section 3(2) applied to this image but, in any case, agreed the image was nevertheless objectionable for the reasons to be discussed below.

Does the image come within section 3(3) taking account of section 3(4)?

34. In the alternative from section 3(2), the Board unanimously agrees that the image be determined objectionable under section 3(3). In making that determination the Board has given particular weight to the matters in section 3(3) and considered the matters listed in section 3(4).

Section 3(3) factors

35. The Board agrees that sections 3(3)(a), (d) and (e) do not apply to the image.
    
36. The girl is not nude in the image and so nor does section 3(3)(b) apply.
    
37. For the reasons already discussed, the Board considers that the image degrades, dehumanises and demeans the girl .Particular weight has therefore been given to the section 3(3)(c) factor.

Section 3(4) factors

38. As stated, in determining whether a publication is objectionable, section 3(4) of the Act requires the Board to consider the matters set out in that subsection.
39. In terms of section 3(4)(a), the Board considers that the dominant effect of the image is to sexually objectify the young girl and to convey a tone of voyeurism.
40. The medium used (section 3(4)(b)) is a digital image, capable of being stored electronically and shared easily via email, text or social media. Its impact is therefore potentially significant, in that the young girl has no way of determining how widely the photo may have been shared or distributed.
41. There is no relevant character attached to the image in terms of section 3(4)(c).

42. The Board has no way of knowing the persons, classes of persons, or age groups of the persons to whom the image is intended or likely to be made available (section 3(4)(d)) but, given its digital medium, notes that it has the potential to be shared widely amongst those with an interest in the sexualising of children.
43. The Board considers there to be no other purpose to the image than titillation and voyeurism (section 3(4)(e)).
44. The image was found amongst other family photographs which suggests to the Board there may have been an attempt to hide the image in plain sight (section 3(4)(f)).
45. All that being so, the Board determines that the image is objectionable because it describes, depicts, or otherwise deals with sex in such a manner that the availability of the image is likely to be injurious to the public good. It is injurious to the public good because of the sexual objectification of children it represents.
    
46. Classification of the image as objectionable is a reasonable limit on the section 14 BORA right to freedom of expression which is demonstrably justified in a free and democratic society.
    

IMAGE OFLC Ref: 1900147.002

47. This image is the second of a group of three images taken apparently at a similar time and in the same place (shown by the girl’s yellow shorts and grey marle top and the bed on which she is kneeling). The image shows the girl kneeling facing away from the camera with her shorts-clad buttocks the focus of the image. The top of her thighs, some of her lower buttocks and her underwear can be seen. Her underwear has ridden up a little exposing part of her buttocks.

Should the image be deemed objectionable?

48. Again, the majority of the Board considers that the image does meet this threshold. The image calls to mind a sexual pose and there appears to be no other point to the photo. The focus is clearly on the buttocks area of the girl. The image appears staged, with no indication the girl was moving at the time.
49. Again, there appears to be no other reason for the photographer capturing the image in this way and it is not a depiction normally found in photos of children and young

people. The majority of the Board considers that the image therefore tends to support the sexual exploitation of young persons.

50. One member of the Board did not consider section 3(2) applied to this image but, in any case, agreed the image was nevertheless objectionable for the reasons to be discussed below.

Does the image come within section 3(3) taking account of section 3(4)?

51. The same reasoning that the Board applied to OFLC Ref: 1900147.000 applies to this image in respect of the section 3(3) and 3(4) factors.
    
52. The Board therefore determines that the image is objectionable because it describes, depicts, or otherwise deals with sex in such a manner that the availability of the image is likely to be injurious to the public good. It is injurious to the public good because of the sexual objectification of children it represents.
    
53. Classification of the image as objectionable is a reasonable limit on the section 14 BORA right to freedom of expression which is demonstrably justified in a free and democratic society.
    

IMAGE OFLC Ref: 1900147.003

54. This image is the third of a group of three images taken apparently at a similar time and in the same place (shown again by the girl’s yellow shorts and grey marle top and the bed on which she is sitting). This time, the image shows the girl looking away from the camera again. The subject is not depicted as demonstrating awareness that she is being photographed through any direct address to the camera. Her legs are bent, her left leg towards her and her right leg up at an angle with a foot resting on her left knee. Her underwear and crotch are again exposed, and are the focus of the image.

Should the image be deemed objectionable?

55. A majority of the Board considers that this image meets the section 3(2) deeming threshold. The image is sexually suggestive, with the eye being drawn immediately to the crotch area in a manner even more voyeuristic than the other two images in

this series. The girl is not depicted as having any unawareness she is being photographed by direct address to the camera. The imagetherefore intrudes upon her privacy in this manner.

56. Again, there appears to be no other reason for the photographer capturing the image in this way and it is not a depiction normally found in photos of children and young people. The majority of the Board considers that the image therefore tends to support the sexual exploitation of young persons.
57. One member of the Board did not consider section 3(2) applied to this image but, in any case, agreed the image was nevertheless objectionable for the reasons to be discussed below.

Does the image come within section 3(3) taking account of section 3(4)?

58. The same reasoning that the Board applied to OFLC Ref: 1900147.000 applies to this image in respect of the section 3(3) and 3(4) factors.
    
59. The Board therefore determines that the image is objectionable because it describes, depicts, or otherwise deals with sex in such a manner that the availability of the image is likely to be injurious to the public good. It is injurious to the public good because of the sexual objectification of children it represents.
    
60. Classification of the image as objectionable is a reasonable limit on the section 14 BORA right to freedom of expression which is demonstrably justified in a free and democratic society.
    

IMAGE OFLC Ref: 1900147.005

61. This image is the first of a group of four images taken of the girl at a slightly older age and apparently at a similar time and in the same place (shown by the girl’s pink flowery shorts and pale pink singlet and sofa on which she is lounging). The image is completely focussed on the girl’s legs. Her crotch is visible as the focus of the shot, and she appears to not be wearing underwear beneath her shorts. The remainder of her body and her face are not visible.

Should the image be deemed objectionable?

62. Again, the majority of the Board considers that the image does meet this threshold. The image has one focus only, the girl’s legs and crotch area.
63. Again, there appears to be no other reason for the photographer capturing the image in this way and it is not a depiction normally found in photos of children and young people. The majority of the Board considers that the image therefore tends to support the sexual exploitation of young persons.
64. One member of the Board did not consider section 3(2) applied to this image but, in any case, agreed the image was nevertheless objectionable for the reasons to be discussed below.

Does the image come within section 3(3) taking account of section 3(4)?

65. The same reasoning that the Board applied to OFLC Ref: 1900147.000 applies to this image in respect of the section 3(3) and 3(4) factors, save for the Board noting that the section 3(3)(b) factor is also relevant, since the image depicts the girl’s bare legs and lack of underwear.
    
66. The Board therefore determines that the image is objectionable because it describes, depicts, or otherwise deals with sex in such a manner that the availability of the image is likely to be injurious to the public good. It is injurious to the public good because of the sexual objectification of children it represents.
    
67. Classification of the image as objectionable is a reasonable limit on the section 14 BORA right to freedom of expression which is demonstrably justified in a free and democratic society.
    

IMAGE OFLC Ref: 1900147.006

68. This image is the second of the group of four images taken of the girl at a slightly older age and apparently at a similar time and in the same place (shown by the girl’s pink flowery shorts and pale pink singlet and sofa on which she is lounging). The image is of the girl lolling back on the couch and looking away from the camera with one hand near her mouth. Her legs are parted in an unnatural way and the focus is again on her bare legs and crotch (appearing to be bare beneath her shorts).

Should the image be deemed objectionable?

69. The Board was unanimous that this image meets the threshold of section 3(2). The image brings to mind an inherently sexual pose.
70. Again, there appears to be no other reason for the photographer capturing the image in this way and it is not a depiction normally found in photos of children and young people. Nor is it a natural pose for a child to make. The Board considers that the image therefore tends to support the sexual exploitation of children.

Does the image come within section 3(3) taking account of section 3(4)?

71. The same reasoning that the Board applied to OFLC Ref: 1900147.000 applies to this image in respect of the section 3(3) and 3(4) factors, save for the Board noting that the section 3(3)(b) factor is also relevant, since the image depicts the girl’s bare legs and lack of underwear.
    
72. The Board therefore determines that the image is objectionable because it describes, depicts, or otherwise deals with sex in such a manner that the availability of the image is likely to be injurious to the public good. It is injurious to the public good because of the sexual objectification of children it represents.
    
73. Classification of the image as objectionable is a reasonable limit on the section 14 BORA right to freedom of expression which is demonstrably justified in a free and democratic society.
    

IMAGE OFLC Ref: 1900147.007

74. This image is the third of the group of four images taken of the girl at a slightly older age and apparently at a similar time and in the same place (shown by the girl’s pink flowery shorts and pale pink singlet and sofa on which she is lounging). The image is similar to the second image in the series, showing the girl lolling back on the couch and looking away from the camera with one hand near her mouth. Her legs are parted in an unnatural way and the focus is again on her bare legs and crotch (appearing to be bare beneath her shorts). This time, her right foot is visible, appearing to be resting on something out of sight near the camera.

Should the image be deemed objectionable?

75. The Board was unanimous that this image meets the threshold of section 3(2). The image brings to mind an inherently sexual pose. The focus is on the girl’s exposed crotch and bare legs.
76. Again, there appears to be no other reason for the photographer capturing the image in this way and it is not a depiction normally found in photos of children and young people. Nor is it a natural pose for a child to make. It has the appearance of being staged. The Board considers that the image therefore tends to support the sexual exploitation of young persons.

Does the image come within section 3(3) taking account of section 3(4)?

77. The same reasoning that the Board applied to OFLC Ref: 1900147.000 applies to this image in respect of the section 3(3) and 3(4) factors, save for the Board noting that the section 3(3)(b) factor is also relevant, since the image depicts the girl’s bare legs and lack of underwear.
    
78. The Board therefore determines that the image is objectionable because it describes, depicts, or otherwise deals with sex in such a manner that the availability of the image is likely to be injurious to the public good. It is injurious to the public good because of the sexual objectification of children it represents.
    
79. Classification of the image as objectionable is a reasonable limit on the section 14 BORA right to freedom of expression which is demonstrably justified in a free and democratic society.
    

IMAGE OFLC Ref: 1900147.008

80. The is the final image of the group of four images taken of the girl at a slightly older age and apparently at a similar time and in the same place (shown by the girl’s pink flowery shorts and pale pink singlet and sofa on which she is lounging). The image is similar to the two previous images, although this time the girl’s foot is not visible.

Should the image be deemed objectionable?

81. The Board was unanimous that this image meets the threshold of section 3(2). The image brings to mind an inherently sexual pose.
82. Again, there appears to be no other reason for the photographer capturing the image in this way and it is not a depiction normally found in photos of children and young people. Nor is it a natural pose for a child to make. The Board considers that the image therefore tends to support the sexual exploitation of children.

Does the image come within section 3(3) taking account of section 3(4)?

83. The same reasoning that the Board applied to OFLC Ref: 1900147.000 applies to this image in respect of the section 3(3) and 3(4) factors, save for the Board noting that the section 3(3)(b) factor is also relevant, since the image depicts the girl’s bare legs and lack of underwear.
    
84. The Board therefore determines that the image is objectionable because it describes, depicts, or otherwise deals with sex in such a manner that the availability of the image is likely to be injurious to the public good. It is injurious to the public good because of the sexual objectification of children it represents.
    
85. Classification of the image as objectionable is a reasonable limit on the section 14 BORA right to freedom of expression which is demonstrably justified in a free and democratic society.

86. The Board hereby directs the Classification Office pursuant to section 55(1)(e) of the Act to enter the Board’s decision in the register.
    

Dated at Wellington this 8th day of November 2019

Rachael Schmidt-McCleave
President

SCHEDULE: STATUTORY PROVISIONS

FILMS, VIDEOS, AND PUBLICATIONS CLASSIFICATION ACT 1993

3Meaning 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.

(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) 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) applies) is objectionable or should in accordance with section 23(2) 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) applies) is objectionable or should in accordance with section 23(2) 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 to whom the publication is intended or is 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.

FILM AND LITERATURE BOARD OF REVIEW SUMMARY DECISION

1. This was an application made to the Board under section 47(2)(c) of the Films, Videos and Publications Classification Act 1993 (the Act) by

, for a review of the decision of the Office of Film and Literature Classification (the Classification Office) dated 4 July 2019.

2. The publications subject to this review are seven individual images, three of which are a set apparently taken in the same place within a short space of time, and the other four of which are similarly taken in the same place as each other within a short space of time (being a different time and place from the first set) (together, “the images”). Each of the images was considered separately by the Board.
   
3. In its decision, the Classification Office classified each of the images as objectionable under the Act.
   
4. The applicant sought a review of that decision.
   
5. After reading submissions from the applicant, the Classification Office and the New Zealand Police, and reviewing the images, the Board has determined that each of the images should be classified as objectionable under the Act.
   
6. A majority of the Board deemed each of the images as objectionable under section 3(2) because they supported the sexual exploitation of children.
   
7. In addition, the Board unanimously determined each of the images to be objectionable because they describe, depict, express or otherwise deal with sex in such a manner that its availability is likely to be injurious to the public good (section 3(1), applying the factors set out in section 3(3) and 3(4)).

8. Classification of the images as objectionable is a reasonable limit on the section 14 BORA right to freedom of expression which is demonstrably justified in a free and democratic society.