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McNeil - Image [2020] NZFLBR 3 (26 June 2020)

Last Updated: 23 July 2023

Content Warning:

The decisions of the Film and Literature Board of Review are formal legal documents of a semi-judicial body. For this reason, they must be made available in full. They do not contain images or examples of pornography. In descriptions of the material being assessed the Board needs to use language used in the material and needs to describe some images in general terms. Please be aware the decisions may contain reference to sexual themes, abuse, self-harm, suicide and other topics that may be upsetting. It is not advisable for young people or those under 18 years of the age to access this material unless accompanied by a parent or guardian.

INTRODUCTION

1. The following members of the Board met by Zoom from 9.30am to 11am on Friday 19 June 2020 to consider this application for review:
   

Ms R Schmidt-McCleave (President) Mr N Dunlop (Vice-President)

Dr T Brown Ms S Gill

Ms E Marvelly Ms S Rowe

Dr G Schott Mr T Turton Dr M Waitoki

2. The publication which is the subject of the review is an electronic image (“the image”) of the upper body of a young female, extending from her navel to her lower forehead. All of her body shown is naked. Her upper body is in an upright position

and she appears to be straddling a person beneath her. She is looking downwards towards her undeveloped breasts. The hands and forearms of another person are reaching up from in front of and below her navel. The hands are cupping each of her breasts. Her left arm is laid across the right forearm of the other person. A wall and cupboard are in the close background. The words “www.YoungLibertines.com” are inscribed in the bottom right corner of the image.

3. Having regard to the size, shape and contours of the female’s torso and her facial features, the Board assesses her age to be 10-12 years. This was the unanimous view of all 9 members of the Board. The female will be hereinafter referred to as “the young person ” although arguably could be more accurately referred to as “the child”. Although the Board does not know the actual age of the young person, it is the apparent or perceived age of the young person which is of importance for current purposes. The Board considers that most viewers of the image would consider the young person to be about 10-12 years of age.
   
4. The size and shape of the forearms and hands of the other person in the image appear to the Board to be those of an adult male. Again, although the Board does not have proof of this, it is the apparent or perceived age and gender of the other person which is of importance.
   
5. On 17 March 2020, the Office of Film and Literature Classification (the “Classification Office”) classified the image as objectionable under the Act.
   
6. Specified persons dissatisfied with any decision of the Classification Office with respect to the classification of any publication are entitled, on application, to have the publication reviewed by the Board1.
   
7. The applicant has applied. The leave of the Secretary was not required, given that the applicant is the owner of the image.
   

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

8. The Board was required to conduct a review as soon as possible, to examine the image, and to determine its classification2. There are three possible classifications: unrestricted or objectionable or objectionable except in one or more specified circumstances.3
   
9. The question of whether 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.4
   
10. The applicant does not have the right to appear before the Board but does have the right to make submissions to it.5 Submissions have been received from the applicant through his counsel Mr A Schulze and Mr E Collins. The Board has the power to invite submissions from the Classification Office.6 It made that invitation and submissions were received.
    
11. The Police were invited to make submissions but chose not to. 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. It was readily able to classify the image simply by viewing it.
    

THE KEY LEGAL CONSIDERATIONS

12. Key legislative provisions referred to are set out in the schedule hereto.
    
13. The Board is first required to consider in terms of section 3(1) whether the publication describes, depicts, expresses, or otherwise deals 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 publication as unrestricted.7
    

2 Section 52

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

4 Section 4.

5 Section 53(1).

6 Section 54(1).

7 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 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

14. If the section 3(1) consideration just referred to results in an affirmative answer, then the next consideration is whether the publication is likely to be injurious to the public good.8
    
15. This then requires the Board to consider whether the publication is 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 emphasised that description and depiction of a prohibited activity do not of themselves necessarily amount to promotion or support of that activity.
    
16. If the Board decides that it must deem the publication to be objectionable for the purposes of the Act, then it need not consider any further. It must classify the publication as objectionable.
    

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.

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.”

17. If the Board decides that the publication is not deemed by the Act to be objectionable, then it must determine whether the publication is objectionable, or should be given one of the other 2 possible classifications (unrestricted, or objectionable except in specified circumstances).
    
18. When making a determination as to whether the publication is 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

19. The applicant submits through counsel that the image is not objectionable, and that the Classification Office took into account irrelevant considerations in coming to its decision. He submits that the facial features and undeveloped body, particularly the small breasts of the young person do not allow the reasonable conclusion that the person is a young teen. He submits that “....the person depicted in the publication may not be a cisgender woman, but rather be trans and biologically male.” The applicant takes issue with the Classification Office view that “ the URL on the image connects to a website that ....depicts sexually explicit content involving....young teenagers, which reinforces its exploitive nature.” He submits that the images which can be assessed through the URL are irrelevant to the determination of whether or not the image is objectionable. He submits that the URL can be assessed through other pornographic sites which stringently filter out objectionable material. He submits that his right to the observance of natural justice has been breached because he has not had been provided with the opportunity to comment on images which the Classification Office has taken into account.
    
20. The Classification Office submits that there are multiple elements contained in the image that lead to the conclusion that the subject presents as a young teenager, and is engaged in sexual activity with a man. It submits that the image tends to promote and support the exploitation of young persons for sexual purposes and hence is deemed objectionable. It submits that “In relation to the URL that appears as a brand on this image.... it is appropriate to have regard to such branding and what it may signify to viewers...the branding does support the assessment that this image

deals with matters of sex.” It submits that if the image is not deemed objectionable, it should nonetheless be determined to be objectionable, because it depicts sexual conduct with young persons, and exploits the nudity of young persons under section 3(3), taking account of the considerations contained in section 3(4).

ANALYSIS

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

21. As referred to in paragraph 13 and footnote 7 above, this is the initial “gateway” issue for the Board to consider under section 3(1). The Board considers that the publication deals with sex in terms of section 3(1). Section 3(1A) applies because the image “...contains 1 or more visual images or 1 or more.... young persons ...who are nude or partially nude” and the image is “reasonably capable of being regarded as sexual in nature.” As stated in paragraph 3 above, the unanimous view of the Board is that the person depicted in the image is a young person, if not a child. The young person is partially nude. The image is sexual in nature, for reasons more fully set out below. Suffice to say, at this point, that the initial and enduring impression gained from viewing the image is that it portrays sexual conduct being performed on the young person. This impression is reinforced by the reference to the URL. This also will be discussed more fully below. The very words “young” and “libertines” used in combination are strongly suggestive of sexual conduct involving young people. It follows from the application of section 3(1A) that the image deals with a matter of sex in terms of section 3(1). The answer to the question posed is therefore “yes”.

Should the publication be deemed objectionable?

22. As referred to in paragraphs 14 and 15 above, in the light of the affirmative answer to the previous question, the next practical issue for the Board to consider is whether the publication should be deemed objectionable pursuant to section 3(2).

23. The matters referred to in paragraphs (b)-(f) of section 3(2) do not apply to this case. The live issue is whether (a) applies, in other words, whether the image promotes or supports, or tends to promote or support the exploitation of children for sexual purposes.
24. 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.
25. The unanimous view of the Board is that the required threshold is met.
    
26. As already mentioned, the unanimous view of the Board is that the person portrayed in the image appears to be a young person, and that it is perceived age, rather than actual age, which is of importance for present purposes. There is, in the Board’s view, no ambiguity about the young person’s apparent gender, and no uncertainty about her apparent age. To suggest otherwise is to engage in speculation and to ignore what is plainly obvious. The live issue is whether the image not just portrays or depicts, but promotes or supports the exploitation of young persons for sexual purposes, or at least tends to do so.
27. The Board has identified many indicators that the image portrays and depicts sexual activity, rather than a benign activity. Indeed, it is difficult to deduce what the image might possibly be portraying and depicting other than sexual activity. All of the young person’s body which is shown is entirely naked. Her body position suggests that she might be straddling someone beneath her, presumably the other person whose hands and forearms are shown. The hands are cupping both her breasts. She is looking down towards her breasts indicating that the cupping of the breasts is the focus of the activity. The forearms and the hands of the other person appear to be those of an adult male, who would not have proper reason to cup the breasts. The camera angle and focus are on the breasts. The young person’s left arm rests on the right forearm of the other person, suggesting that their bodies are interlocked. The fact that the other person in the image is almost entirely concealed is suggestive of illicit activity. The words “young” and “libertine” in combination suggest that what is being portrayed is sexual. The word “libertine” denotes frequent sex by a person of loose morality, usually an adult male. For example, the Cambridge University online dictionary defines libertine as “a person, usually a man, who lives in a way

that is not moral, having sexual relationships with many people.” The adjective “young” indicates that such sex relates to young people, which corresponds with the apparent age of the person depicted. There is nothing shown in the image which indicates that a benign interpretation might be given to it. It is the overall effect of all these indicators in combination which so clearly points to sexual activity by an adult male towards a young female.

28. Is what is depicted and portrayed in the image exploitative of young people for sexual purposes? The answer is undoubtedly “yes”. Sex by an adult male with a young person of the apparent age of 10-12 years is inherently exploitative due to the power imbalance, and the emotional and cognitive immaturity of the young person . This is reinforced in the case of the image by the objectification of the young person resulting from the focus of the camera being on the young person, creating a voyeuristic effect, such that the viewer of the image can readily place themselves in the position of the adult male. It should be noted that the exploitation is of a two- fold nature, namely exploitation of the particular young person featuring in the image, and exploitation of young people generally. With regard to the former, the Board considers that the young person featured has been taken advantage of, because on account of her immaturity, she is unable to grasp that the image of her may well be viewed by large numbers of persons internationally, and in perpetuity, which in time could cause her distress and disadvantage. With regard to the latter, the Board considers that just one image of exploitation, especially one which may be widely shared for an indefinite period, contributes to deep seated attitudes and beliefs harmful towards young people generally, but especially young females who are at the forefront of exploitation.
29. A closely related but distinct question to that just considered is whether the image not only portrays or depicts the exploitation of young people for sexual purposes, but promotes or supports that exploitation, or tends to do so. Again, the Board answers this question “yes”. The points made in the previous 2 paragraphs are applicable to this consideration. It is most likely that an image which depicts and portrays the sexual exploitation of young people, and which appears to have no purpose other than the sexual titillation of viewers, thereby promotes and supports that exploitation as well. Were it not, however, for the reference to the URL, the

Board would have hesitated in concluding that the image is supportive and promotional in nature. In its view, however, the reference to the URL points emphatically to the support and promotion of the sexual exploitation of young people.

30. It has not been necessary for the Board to view the website referred to in the image. That is for 2 reasons. Firstly, as mentioned in paragraph 27, the words “YoungLibertines” on their face have the effect of endorsing and condoning sex between adult males and young persons. Secondly, the character of the website is undoubtedly pornographic. The Classification Office and the applicant appear to agree about that. This is confirmed by a Google search using the words “Young Libertines website”. The search results not only refer to the URL, but to a series of related, interlocking sites of a pornographic nature. The Board need not examine any of the images on the website concerned. What is important is the message conveyed by the reference to the URL. That message is that image can and should be viewed as an instance of pornography. In other words, the URL provides assurance to viewers that the image is in fact portraying illicit sex, but more than that, it is an image to be enjoyed as pornographic. For reasons previously stated, it is readily apparent to viewers that the image is portraying sexual activity between an adult male and young female. The addition of the URL takes viewers a step further, and conveys that they may not only indulge their fantasies viewing the image, but extend their viewing of such material by accessing the website. By any measure, this serves to promote and support the exploitation of young persons for sexual purposes.
31. It follows that the image is deemed objectionable under section 3(2)(a). The Board need not therefore consider whether in terms of section 3(1) the publication is likely to be injurious to the public good. The image is objectionable as a matter of law.
    

FURTHER ANALYSIS

32. Despite deciding that the image must be deemed objectionable, the Board considered whether, had it not done so, it would have determined the image objectionable under section 3(3) and (4).

33. For reasons already alluded to, the Board considers that in terms of section 3(3)(a)(iv), the image to a significant extent and degree, and in a callous manner “....describes, depicts or otherwise deals with...sexual conduct with...young persons....”. It considers, in terms of section 3(1) that “....the availability of the publication is likely to be injurious to the public good.”. In making the finding of injury to the public good the Board takes account of the considerations referred to in section 3(4) and which are discussed later. Suffice to say at this point that the availability of any publication which serves to promote and support the sexual exploitation of young females by adults, is bound to be injurious to the public good.
34. The Board also considers that the publication promotes or encourages criminal acts in terms of section 3(3)(d). It is not necessary to discuss the criminal law in detail. Suffice to say that the law sets out a range of offences relating to sexual interaction of adults with minors. One example is section 134 of the Crimes Act 1961 which deals with sexual conduct with a young person under 16. In the view of the Board, the type of conduct promoted or encouraged by the image is, in general terms, bound to breach the criminal law in various ways. The criminal law serves to protect young people from sexual exploitation. Again, the Board’s finding takes account of the matters referred to in section 3(4).
35. Regarding the section 3(4) matters, the Board considers:
    
    1. The dominant effect of the image is the endorsement of the sexual exploitation of young females.
    2. The impact of the medium (an electronic image) is to provide closeness and clarity of detail, the opportunity for prolonged public or private viewing, and enable sharing of the image with the world at large.
    100. The image has no literary, artistic, social, cultural, educational, scientific, or other merit, value, or importance.
    4. The image is potentially available to the world at large, particularly those with a prurient interest in pre-pubescent females.
    5. The Board does not know the purpose the specific image with which it is dealing (f4912e0fbea8487a_0_embedded_1.jp) was created. That is of no significance.

What is of importance is the effect and impact of the image on viewers if made available.

6. There are no other relevant circumstances which the Board has taken into account, other than those referred to in this decision.

36. Therefore, in terms of section 3(1), for the reasons given, the availability of the image is likely to be injurious to the public good, and is thereby objectionable.
37. Having regard to the Board’s findings set out throughout this decision, injury to the public good is unable to be addressed or ameliorated. Therefore, none of the section 23(2)(c) exceptions is applicable. Nor is there any reason to classify the publication as restricted having regard to section 23(3).
38. It follows, that had the Board not deemed the image objectionable, it would have determined it to be objectionable in terms of section 23(2)(b).
    

CONCLUSION

39. 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 26th day of June 2020.

Nigel Dunlop

Deputy 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 to the Board under section 47(2)(d) of the Films, Videos and Publications Classification Act 1993 (the Act) by the applicant, Michael McNeil, for a review of the decision of the Office of Film and Literature Classification (the Classification Office) dated 17 March 2020.
   
2. The publication at issue is an electronic image featuring a female appearing to be 10-12 years of age. Most of her body from the navel upwards is showing, all of which is naked. Her torso is upright. She appears to be straddling an adult male out of sight of the camera except for his forearms and hands which are cupping her undeveloped breasts. The image refers to a Young Libertines website.
   
3. In its decision, the Board classified the publication as objectionable under the Act. It held that the publication must be deemed objectionable in terms of section 3(2)(a) of the Act because it promotes or supports, or tends to promote or support, the exploitation of young persons for sexual purposes.
   
4. The Board also held that even had it not decided that the publication be deemed objectionable, it would have determined it to be objectionable under section 3(3)(b) because it exploites the nudity of young people, and under section 3(3)(d) because it promotes or encourages criminal acts, most particularly those between adults and minors.
   
5. The Board rejected the submission of the applicant that the age of the female depicted cannot be ascertained with certainty, holding that it is apparent age, which is of importance, rather than actual age. It held that the apparent age of the female is obvious, and that it is also obvious that the image portrays sexual activity. It placed considerable weight on the URL as an indication that the image supported and promoted the sexual exploitation of young persons.

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