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Image [2021] NZFLBR 1 (4 March 2021)

Last Updated: 23 July 2023

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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.

DECISION OF FILM AND LITERATURE BOARD OF

REVIEW

IN THE MATTER

INTRODL*CTIOh

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

of on application under section 47(2)(d) by (“the applicant”) for a review of the publication 20200212 231551

1. The following members of the Board met by Zoom from 9.30ain to 11our on Thursday 4 February 202 I to consider this application for review:
   

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

Dr T Bi’own Dr G Scliott Dr M Woitoki Ms S Gill

Ms E Marvelly Mr T Turton

2. The publication which is the subject of the review is an electronic imoge (“the ñnage”) of a female subject holding her bieasts to the camera, one cupped in each hand. She is not weoiing a bra oi’ top on her iippei body and has a singlet pushed

back behind her head. The female’s hair is braided into corn row plaits, and visible in the image behind her is a bed and some curtains. The female’s head is tilted and she is smiling.

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 12-17 years of age. Although the Board was informed in the submissions it received that the actual age of the young person was 15 years of age at the time the image was taken, it is the apparent or perceived age of the young person which is of importance for current purposes. The Board considers that viewers of the image would place the young person somewhere between about 12-17 years of age.
   
4. On 22 October 2020, the Office of Film and Literature Classification (the “Classification Office”) classified the image as objectionable under the Act, because it tended to promote and support the exploitation of young persons for sexual purposes.
   
5. 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.
   
6. The applicant has applied. The leave of the Secretary was not required, given that the applicant is the owner of the image.
   
7. 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
   
8. 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
   

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

2 Section 52

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

4 Section 4.

9. The applicant does not have the right to appear before the Board but does have the right to make submissions to it.5 Submissions (and supplemental submissions) have been received from the applicant through his counsel Mr Grant Anson. The Board has the power to invite submissions from the Classification Office.6 It made that invitation and submissions were received. The Board also invited the Police, as the original submitter of the image to the Classification Office, to make submissions but no submissions were received from the Police.
   
10. 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 able to classify the image simply by viewing it.
    

THE KEY LEGAL CONSIDERATIONS

11. Key legislative provisions referred to are set out in the schedule to this decision.
    
12. 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
    
13. 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
    
14. 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

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 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.

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.

15. 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.
    
16. 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).
    
17. 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

The applicant’s submissions

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.”

18. The applicant submits though counsel that the Classification Office has wrongly taken into account information extraneous to the publication to make three critical determinations, namely:
    
    1. that the female is a young person as opposed to a young adult;
    2. as to the degree of sexuality conveyed in the image; and
    100. that the publication is exploitative.
         
19. The applicant says the above determinations are not justified by the publication and must have been based on assertions of fact contained in the Police submission to the Classification Office.10
    
20. The applicant says that the face of the female in the image is distorted by the expression she has adopted, and it might equally be the face of a young adult or woman aged 18 or 20 years. He says the female’s breast and waist indicate that she is clearly post-puberty and sexually mature. In summary, he says there is no basis or sufficient basis to differentiate the image from that of a young adult, and that the Classification Office’s determination was tainted by information provided by the Police, giving the young person’s actual age.
    
21. Next, the applicant says that the image contains no genital nudity, no sexual activity and no other indicia of sexual activity.
    
22. Finally, the applicant submits that the Classification Office’s determination as to the exploitative nature of the image is tainted by the extraneous information provided to it by the Police. He says the concepts of promotion and support in the Act are concerned with the effect of the publication and not with the purpose or intent of the person who creates or possesses it.
    

10 The Board notes that the applicant complains that the Classification Office did not supply a copy of the Police submission to and that it should have done so. This is not of relevance to this decision of the Board as the Act, in section 52(2) requires the Board to conduct its review without regard to the decision of the Classification Office, and that is what it has done.

23. In response to the submissions of the Classification Office summarised below, counsel for the application filed supplemental submissions. Key points in those supplemental submissions are:
    
    1. In response to the Classification Office’s submission regarding the presence of a photographer, the applicant says in the age of the ‘selfie’ people of any age or gender compose, capture and edit images of themselves and, equally, may have a (non-exploitative) peer do so. Although the Classification Office has resiled from its previous position that the photographer would be an adult exploiting his subject and being titillated by her, the Office still asserts (without reasoning) the presence of a photographer and exploitation of the female.
    2. The Classification Office continues to claim it can identify the audience for the image without any explanation how it arrives at that conclusion beyond the digital format of the image. In the age of smart phones, the applicant says, the mere potential for sharing is no basis for an inference that the image would be shared.
       
24. For completeness, the Board notes that the applicant provided a large amount of extraneous material with both sets of his submissions, and then requested that the Board not take into account the extraneous material provided by the Police to the Classification Office. The Board did not view the extraneous material provided to the Classification Office by the Police and, indeed, even the extra information given by the Applicant was material the Board did not need to view to reach its conclusion. The Board was readily able to make a decision on the image on its face, and therefore did so.

The Classification Office’s submissions

25. The Classification Office submitted that, while the applicant was correct that the Classification Office received advice from the Police that all of the submitted publications depicted the same female subject and that she was 15 years old when

the publications were made, it rejected the assertion that its assessment was based on or tainted by information submitted by the Police.11

26. The Classification Office stated that it identified three core considerations with the image, namely whether the female in the image presented as a young person, whether the image dealt with matters of sex, and whether the image promoted and supported, or tended to promote or support, the exploitation of the young person for sexual purposes.
    
27. In relation to those three stated core considerations, the Classification Office submitted:
    
    1. Based solely on the information available within the four walls of the image, the female presents as someone in their mid-teens. While some aspects of her appearance are physically well-developed, the overall effect of the shape of her body and her youthful face gives the strong impression that she is in her mid-teens. An objective viewer is likely to perceive her to be a young person.
    2. The subject is striking a pose and using her hands to draw the viewer’s attention to her exposed breasts. Both her pose and facial expression are overtly sexually inviting. Therefore, the image clearly deals with a matter of sex.
    100. Applying Moonen 1 and Moonen 212 , although the image is not sexually

explicit, it is highly sexualised because of the way the subject is obviously posing to present her breasts to the viewer with a sexually inviting expression on her face. Her gaze, and the way she is posed, strongly suggest she did so for the photographer. Regardless of who took the image, the fact that it depicts a young person provocatively displaying her breasts gives the image an exploitative tone. Therefore, the image at least tends to promote and support the exploitation of young persons for sexual purposes because it has the effect of normalising the sexualisation of young teenage girls, creating or

11 In this context, the Classification Office gave further information about the other publications submitted by the Police for classification but the Board did not take that further information into account in reaching its decision on review.

12 Ibid footnote 9.

reinforcing the idea that they are appropriate subjects for adult sexual fantasy and desire.

28. The Classification Office also referred to the digital nature of the image, meaning that its availability could easily extend beyond the owner and, if shared online, would inevitably attract the attention of people with a sexual interest in teenage girls, further exploiting its vulnerable young subject.
    
29. The Classification Office notes that an objectionable classification interferes with the right to freedom of expression as set out in section 14 of the New Zealand Bill of Rights Act 1990, but submits this is consistent with Parliament’s intention that publications which at least tend to promote or support the exploitation of young persons be deemed to be objectionable.
    

ANALYSIS

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

30. 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 of 1 or more.... young persons ...who are nude or partially nude” and the image is “reasonably capable of being regarded as sexual in nature.”
31. The unanimous view of the Board is that the person depicted in the image is a young person. The young person is partially nude in that her breasts and tummy are uncovered. The Board considers the image is sexual in nature, and elaborates below on its reasons for this conclusion.
32. 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?

33. In 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).
34. The matters referred to in paragraphs (b)-(f) of section 3(2) do not apply. The sole issue is whether (a) applies, namely, whether the image promotes or supports, or tends to promote or support the exploitation of children for sexual purposes.
35. In considering this issue, the Board has regard to the judicial interpretation of the subsection referred to in Moonen 113 and, particularly, the high threshold for section 3(2) to apply.
36. The unanimous view of the Board is that the required threshold for a deemed objectionable determination is not met here.
37. The Board was in agreement 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. While there may be different views as to the exact age of the young person depicted, all Board members agreed that the shape of the young person’s face, the immature body composition and the corn row plait hairstyle all give the impression of a young female.
38. However, section 3(2) requires a high threshold to be overcome. While the image is certainly suggestive of sexual behaviour (as discussed further below), the Board did not consider that there was anything in the image which expressly or implicitly promotes or supports, or tends to promote or support, the exploitation of young persons for sexual purposes.
39. The Board acknowledges that sex by an adult male with a young person is inherently exploitative due to the power imbalance, and the emotional and cognitive immaturity of the young person. There is nothing in the image, however, which reinforces this inherent exploitation in a manner which would trigger section 3(2) by promoting or support the exploitation, or tending to promote or support it.
40. It follows that the image is not deemed objectionable under section 3(2)(a). The Board therefore goes on to consider whether, in terms of section 3(1), the publication
    

13 See footnote 9.

is likely to be injurious to the public good, and therefore ought to be determined to be objectionable under sections 3(3) and (4).

FURTHER ANALYSIS

41. The Board considers that in terms of section 3(3)(b), the image “exploits the nudity of children, or young persons, or both.”14 It considers, in terms of section 3(1) that “....the availability of the publication is likely to be injurious to the public good.”.
42. 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 below. The Board considers that the image contributes to normalising the sexualisation of teenaged girls in depicting a teenager in a sexually suggestive pose. The effect of that depiction is an attempt to normalise such sexually explicit images of teenagers in a way the Board considers is injurious to the public good.
43. Specifically regarding the section 3(4) matters, the Board considers:
    
    1. The dominant effect of the image is the depiction of a young and vulnerable female posing in a sexual manner which appears as if directed by the unseen photographer. The image is highly suggestible, depicting as it does the young woman’s top pulled over her neck and the offering up of the bed in the background. Young persons under the age of 16 years cannot legally consent to sex and do not have the full intellectual development to be cognisant of the fact that such an image has the potential to follow them for life.
    2. The impact of the medium (an electronic image) is to enable public or private viewing of a young woman with naked breasts posing in a sexually inviting manner.
    100. The image has no literary, artistic, social, cultural, educational, scientific, or other merit, value, or importance.
    4. Because of its digital nature, and thus its ability to be easily shared and disseminated, the image is potentially available to the world at large, particularly those with a voyeuristic interest in partially nude young females. In some applications, such as WhatsApp, a person’s settings may be such that even if they
       

14 The Board also considered whether section 3(a)(iii), or section 3(a)(iv) or section 3(c) applied here but decided the most relevant section was section 3(3)(b).

are sent the image unsolicited, it will remain stored on the camera roll of their phone.

5. The Board does not know the purpose for which the image was created. However, the Board endows that lack of knowledge with no significance. What is important 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.

44. 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.
45. 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).
46. It follows, that the Board has determined the image to be objectionable in terms of section 23(2)(b).

CONCLUSION

47. 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 4th day of March 2021.

Rachael Schmidt-McCleave

President

SCHEDULE: STATUTORY PROVISIONS

FILMS, VIDEOS, AND PUBLICATIONS CLASSIFICATION ACT 1993

3 Meaning of objectionable

(1) For the purposes of this Act, a publication is objectionable if it describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty, or violence in such a manner that the availability of the publication is likely to be injurious to the public good.

(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,

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 12-17 years of age. The female is holding her breasts to the camera, one cupped in each hand. She is not wearing a bra or top on her upper body and has a singlet pushed back behind her head. The female’s hair is braided into corn row plaits, and visible in the image behind her is a bed and some curtains. The female’s head is tilted and she is smiling.
   
3. In its decision, the Board classified the publication as objectionable under the Act. The Board determined the publication to be objectionable under section 3(3)(b) because it exploited the nudity of young people.
   
4. 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.