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Image [2021] NZFLBR 2 (19 April 2021)

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.

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 image 1-2348jpg

INTRODUCTION

1. The following members of the Board met by Zoom on 8 April 2021 to consider this application for review:
   

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

Dr T Brown Ms S Gill Dr G Schott

Mr T E G Turton

2. The publication subject to this review is a single jpg thumbnail image. It depicts a man having vaginal penetrative sex with a female. The female has blonde hair. Her arms are by her side. She lies on her back. The man, who has the appearance of an adult, is above her. All of the front of the female’s body is shown from the top of her head down to about her upper thighs. She is looking towards the man’s penis. Only the man’s stomach, upper thigh, elbow and penis are in the shot. The male and female are lying on a patterned couch. There is dispute as to the apparent age of the female. Beneath the photographic depiction of the male and female there are 10 lines of metadata shown in the publication.
   
3. On 9 December 2020, the Office of Film and Literature Classification (the “Classification Office”) classified the publication as objectionable on the grounds that it promotes and supports the exploitation of young people for sexual purposes.
   
4. Any person who is dissatisfied with any decision of the Classification Office with respect to the classification of any publication is entitled, on application, to have the publication reviewed by the Board, either by right, or if granted leave by the Secretary for Internal Affairs1.
   

1 Sections 47(1) and 52(3). Leave is not required for those who are specified in paragraphs (a)-(d) of section 47(2) as having the right of review.

5. The applicant is the owner of the publication, and so did not require the leave of the Secretary to seek a review.
   
6. The Board is required to conduct a review as soon as possible, to examine the publication. The review is by way of re-examination without regard to the decision of the Classification Office2.
   
7. There are three possible classifications: unrestricted or objectionable or objectionable except in one or more specified circumstances.3
   
8. 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.4
   
9. The applicant had the right to appear before the Board, and the right to make submissions to it.5 Submissions were received from the applicant through his legal representative, Tudor Clee, barrister of Auckland. The applicant did not ask to appear before the Board.
   
10. The Board has the power to invite submissions from the Classification Office.6 It made that invitation and submissions were received.
    
11. The Board invited the Police to provide submissions, but none were provided. The Board did not consider it necessary to invite other submissions, or to hold an oral hearing, obtain information, consult with others, or make inquiries7. It was readily able to classify the publication by its member individually viewing it, and then discussing it in a Zoom meeting. At that meeting the Board unanimously reached the classification decision referred to below.
    

THE KEY LEGAL CONSIDERATIONS

2 Section 52(2).

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

4 Section 4.

5 Section 53(1).

6 Section 54(1).

7 ibid

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 file as unrestricted.8
    
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.9
    
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,10 which emphasised the high threshold to be overcome for the provision to apply, citing the importance of freedom of expression. The Court of Appeal
    

8 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.

9 Ibid.

10 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.

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.
    
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 classifications (unrestricted or objectionable except in specified circumstances).
    
18. When making a determination as to whether the file 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 that the female shown in the publication is not pubescent as found by the Classification Office. He submits that the female’s age cannot be ascertained with any accuracy and so on “...that basis the result of the classification should be undetermined.” The Board understands this submission to mean that it should not take the female to be a child or young person, when classifying the publication.
    
20. One reason submitted by the applicant that the female’s age cannot be ascertained is that the “...image is too small and low resolution to clearly identify features such as physical development given it is a thumbnail in a cache folder.”
    
21. Another reason submitted is that the relative size of the male and female cannot be used to ascertain the age of the female. The male appears considerably larger in the image than the female. The applicant submits that this could be because the female might be unusually small, or the male unusually large, or both.

22. Another reason submitted is that the “...camera used may be wide angle (18-24mm) which could cause a distortion of size making the male subject appear larger and the non subject female smaller.”
    
23. The Chief Censor submits that “...the female presents as someone in their mid- teens. While the image is low resolution...the overall effect of her body shape, her immature physical development and her youthful-looking face give the strong impression that she is in her mid-teens. This effect is exacerbated by the size difference between the man and the female.”
    
24. The Chief Censor submits that the publication “...promotes and supports the exploitation of young people for sexual purposes by normalising and legitimising them as available and appropriate subjects for adult sexual attention.... The female’s body language, in particular her slack arms, add to the exploitive tone.”
    

THE BOARD’S VIEW

Does the publication describe, depict, express or otherwise deal with matters such as sex, horror, crime, cruelty or violence? (section 3(1)).

25. The publication depicts sex. It frankly shows a male and female engaged in sexual intercourse.
26. Accordingly, the publication enters the subject matter gateway11. The issue for the Board is therefore, whether the manner in which the publication depicts sex, and its availability, is likely to be injurious to the public good.
    

Should the publication be deemed objectionable in terms of section 3(2)?

11 See footnote 8.

27. The only relevant paragraph for consideration under section 3 (2) is paragraph (a) which deals with the exploitation of children, or young persons, or both, for sexual purposes.
28. This paragraph could only apply to the present case if the female depicted is a child or young person.
29. The Act does not define either a child or young person. The Board considers that the female appears to be in the age range of 12-14 years. She is best considered a young person rather than a child.
30. The actual age of the female is irrelevant for present purposes. What is relevant is her apparent or perceived age. As will be mentioned later, a large number of persons unconnected to the female might view the image. Few if any of these viewers will know the female’s biological age. What they make of, and take out of the image depends on their assessment of the age of the female. The Board considers that most viewers would take the age of the female to be 12-14 years, having regard, amongst other things, to her facial features and body shape.
31. Another reason the female appears young is the relative body sizes of the male and female. The female appears much smaller than the male. The Board does not know their actual sizes. Their actual body sizes, however, are irrelevant. It does not matter that the female might be particularly small or the male particularly large, or both. As mentioned in the previous paragraph, the relevant consideration is apparent or perceived age, not actual age. Few if any of the persons who might view the image will know the actual sizes of the male and female. One of the means by which they will assess the apparent age of the female is by the relative sizes of the male and female, whether or not that relativity is an accurate indicator of actual age. Viewers of the image will not turn their minds to the actual sizes of the male and female.
32. What is notable about the image, and which will strike viewers, is the apparent age of the female. For most if not all viewers, actual age will not be of interest. The actual age is unascertainable for most if not all viewers.
33. For similar reasons, the type of camera lens used to take the image is irrelevant. If a wide angle lens has been used and as a result the apparent age of the female is

younger than her biological age, this will not be known to most if not all viewers, and so will not affect their perception of the age of the female.

34. The publication depicts a young person. But does it promote or support, or tend to promote or support the exploitation of young persons in terms of section 3(2)(a)?
35. As mentioned in paragraph 15 above, description and depiction of a prohibited activity (in this case sex with a minor) do not of themselves necessarily amount to promotion or support of that activity. The determination of whether the publication promotes or supports an activity must be made solely on the basis of what is apparent from the publication itself. Knowledge or inference of how or why the publication came into being are irrelevant for this purpose.
    
36. In the Board’s view, the publication does not reach the threshold in Moonen 1 referred to in footnote 10. The female’s face in the image is expressionless. The face of the male is not shown. There are no identifiable features or indicia in the publication itself which speak to sex with a minor being supported or promoted.
    
37. The Chief Censor submits that the image promotes and supports the exploitation of young people by normalising and legitimising them as available and appropriate subjects for adult sexual attention. As will be discussed below, the Board agrees with the concerns about normalisation and legitimisation, but these concerns do not constitute promotion and support. The Chief Censor refers to the female’s body language as relaxed, and hence shows she is accepting of what is occurring to her. The Board does not agree that her body language shows that. As will be discussed below, the Board considers that her body language portrays her as tense and disengaged, indicative of someone being used as a mere object, for purposes of sexual gratification. The Board therefore respectfully disagrees with the Chief Censor that the publication must be deemed objectionable under section 3(2).
    
38. The Board must now therefore consider whether to determine the publication objectionable having regard to subsections 3 and 4 of section 3.

Do any of the matters set out in section 3(3) to which particular weight must be given, apply?

39. Section 3(3)(a)(iv) refers to sexual conduct with young people. Therefore subsection 3 requires that in determining whether or not the publication is objectionable, particular weight must be given to the extent and degree to which, and the manner in which, the publication describes, depicts or otherwise deals with sexual conduct with a young person.
40. As stated in paragraph 14 above, the issue is whether publication is likely to be injurious to the public good.
41. In the Board’s view, the publication is likely to be injurious to the public good because the publication depicts exploitative sexual conduct of an adult with a young person as normal and acceptable.
42. The female in the publication is portrayed as a passive but tense recipient of adult sexual attention. The sexual intercourse is shown as something happening to her. She does not have agency. She is unengaged, suggesting that the sexual activity is at best being tolerated by her, at worst imposed on her. The subliminal message is that it is acceptable for an adult to treat a young person as a sexual object for the gratification of the adult, without regard to the feelings, wishes or rights of the young person. This is clearly injurious to the public good.
43. Section 3(3) also refers to publications exploiting of the nudity of young people, being degrading and dehumanising, and promoting or encouraging criminal acts. These features could be said to apply as well to the publication under consideration, but the Board prefers to base its decision on paragraph (a)(iv), because it so obviously and directly applies.
44. The Board must also consider the matters referred to in section 3(4). Each of the paragraphs in that subsection will be considered in turn.
    

Section 3(4) considerations

45. The dominant effect of the publication is as set out in paragraphs 43 and 44 above. This consideration does not therefore detract from the likelihood of injury to the public good.
46. The impact of the medium, a jpeg image, is that the publication can potentially be shared and viewed by an almost limitless number of persons for nefarious purposes. This consideration heightens the likelihood of injury to the public good.
47. The publication has no merit, value or importance. This consideration does not therefore detract from the likelihood of injury to the public good.
48. The publication could potentially be made available to any persons, classes of person or age groups. This consideration heightens the likelihood of injury to the public good.
49. It is not known what purpose the substantive publication, that is to say the subject matter of the image, is intended to be used. This consideration neither heightens nor lessens the likelihood of injury to the public good. The narrower technical purpose of the publication is referred to below.
50. A relevant and important consideration is that because the publication is an electronic thumbnail, its purpose is to facilitate viewer access to a full-size and likely clearer image stored elsewhere. This consideration heightens the likelihood of injury to the public good. The metadata forming part of the publication has no bearing of whether or not the publication is objectionable.
    

Outcome

51. For the reasons outlined above, the Board considers that on its face the publication is objectionable, because it depicts sex in such a manner that the availability of the publication is likely to be injurious to the public good.
52. As mentioned in paragraphs 7 and 17 above, however, the Board must decide whether the publication should be classified as unrestricted, or objectionable, or objectionable in 1 or more circumstances.

53. Clearly, the Board will not apply the unrestricted classification. But might any of the circumstances set out in section 23(c)(i)-(iii) apply?12 The Board does not consider that a classification of objectionable for the publication should be subject to any of the possible exceptions. An age restriction is not practicable, there are no classes of persons who should be enabled to possess the publication, and there are no identifiable purposes to which the publication could be put.
54. Accordingly, the Board determines that the classification of the publication is objectionable.
55. The Board directs the Classification Office to enter the Board’s decision in the register.
    

Dated at Wellington this 19th day of April 2021.

Nigel Dunlop
Deputy President

12 See the schedule hereto for section 23(2).

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.

3APublication may be age-restricted if it contains highly offensive language likely to cause serious harm

(1)

A publication to which subsection (2) applies may be classified as a restricted publication under section 23(2)(c)(i).

(2)

This subsection applies to a publication that contains highly offensive language to such an extent or degree that the availability of the publication would be likely, if not restricted to persons who have attained a specified age, to cause serious harm to persons under that age.

(3)

In this section, highly offensive language means language that is highly offensive to the public in general.

3BPublication may be age-restricted if likely to be injurious to public good for specified reasons

(1)

A publication to which subsection (2) applies may be classified as a restricted publication under section 23(2)(c)(i).

(2)

This subsection applies to a publication that contains material specified in subsection

(3) to such an extent or degree that the availability of the publication would, if not restricted to persons who have attained a specified age, be likely to be injurious to the public good for any or all of the reasons specified in subsection (4).

(3)

The material referred to in subsection (2) is material that— (a)

describes, depicts, expresses, or otherwise deals with— (i)

harm to a person’s body whether it involves infliction of pain or not (for example, self- mutilation or similarly harmful body modification) or self-inflicted death; or

(ii)

conduct that, if imitated, would pose a real risk of serious harm to self or others or both; or

(iii)

physical conduct of a degrading or dehumanising or demeaning nature; or (b)

is or includes 1 or more visual images— (i)

of a person’s body; and (ii)

that, alone, or together with any other contents of the publication, are of a degrading or dehumanising or demeaning nature.

(4)

The reasons referred to in subsection (2) are that the general levels of emotional and intellectual development and maturity of persons under the specified age mean that the availability of the publication to those persons would be likely to—

(a)

cause them to be greatly disturbed or shocked; or (b)

increase significantly the risk of them killing, or causing serious harm to, themselves, others, or both; or

(c)

encourage them to treat or regard themselves, others, or both, as degraded or dehumanised or demeaned.

23Examination and classification

(1)

As soon as practicable after a publication has been submitted or referred to the Classification Office under this Act, the Classification Office shall examine the publication to determine the classification of the publication.

(2)

After examining a publication, and having taken into account the matters referred to in sections 3 to 3D, the Classification Office shall classify the publication as—

(a)

unrestricted; or (b)

objectionable; or (c)

objectionable except in any 1 or more of the following circumstances: (i)

if the availability of the publication is restricted to persons who have attained a specified age not exceeding 18 years:

(ii)

if the availability of the publication is restricted to specified persons or classes of persons:

(iii)

if the publication is used for 1 or more specified purposes. (3)

Without limiting the power of the Classification Office to classify a publication as a restricted publication, a publication that would otherwise be classified as objectionable may be classified as a restricted publication in order that the publication may be made available to particular persons or classes of persons for educational, professional, scientific, literary, artistic, or technical purposes.

55Decision of Board

(1)

After examining any publication submitted to it for review, the Board shall— (a)

classify the publication in accordance with section 23(2); and (b)

where the Board has classified the publication as a restricted publication, determine in accordance with section 27 whether or not conditions should be imposed in respect of the public display of that publication, or any advertising poster or, as the case requires, any film poster relating to the publication, or both, and if so, what conditions; and

(c)

give written notice of its decision, and of the reasons for its decision, to— (i)

the applicant for review; and

(ii)

the Classification Office; and (iii)

if the review is in respect of a publication referred to the Classification Office by a court pursuant to section 29 or section 41(3), to that court; and

(d)

where the review is in respect of a film submitted to the Classification Office pursuant to section 12, order the Classification Office to direct the labelling body to issue a label in respect of that film pursuant to section 36; and

(da)

where the review is in respect of a publication (other than a film) and the Board imposes a condition pursuant to section 27(4)(a), order the Classification Office to direct the labelling body, in accordance with section 36A(2), to issue a label in respect of the publication; and

(e)

direct the Classification Office to enter the Board’s decision in the register. (2)

Notwithstanding anything in subsection (1), on any review of a publication, the Board shall have the same powers as are conferred on the Classification Office by this Act (other than the powers conferred by section 37).

(2A)

Before giving written notice of its decision under subsection (1)(c), the Board may inform the persons specified in that paragraph of—

(a)

the classification given to the publication under subsection (1)(a); and (b)

any conditions imposed under subsection (1)(b). (3)

Where the Board makes any decision in relation to any publication submitted to it under section 47, the decision of the Classification Office in relation to that publication (including any conditions imposed under section 27), and the classification given to that publication by the Classification Office, shall, for the purposes of this Act, be deemed to be cancelled.

FILM AND LITERATURE BOARD OF REVIEW SUMMARY DECISION

1. This was a review by the Board under section 52 of the Films, Videos and Publications Classification Act 1993 (the Act).
   
2. The review was in response to an application by the owner of

the publication, who did not agree with a decision of the Office of Film and Literature Classification (the Classification Office) dated 9 December 2020.

3. The publication subject to this review is a single jpg thumbnail image. It depicts an adult man having vaginal penetrative sex with a young female. All of the front of the female’s body is shown from the top of her head down to about her upper thighs. She is looking towards the man’s penis.
   
4. In its decision, the Classification Office deemed the publication objectionable in terms of section 3(2) of the Act as promoting or supporting the sexual exploitation of young people.
   
5. The applicant submitted that the age of the female could not be accurately ascertained from the publication. He submitted it could not be concluded therefore, that the female was a young person, which meant that the publication should not be classified as objectionable.
   
6. The Board held that what is important is the apparent age of the female. Her biological age is irrelevant. It assessed her apparent age in the publication to be 12-14 years.
   
7. The Board did not agree with the Chief Censor that the publication on its face promoted or supported the sexual exploitation of young people.
   
8. The Board decided, however, that the subliminal message given by the publication is that it is acceptable for an adult to treat a young person as a sexual

object for the gratification of the adult, without regard to the feelings, wishes or rights of the young person. The publication has no redeeming features.

9. The Board decided that the publication is clearly injurious to the public good.
   
10. The Board therefore classified the publication as objectionable.