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Burrows - 4 Images [2021] NZFLBR 3 (20 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.

INTRODUCTION

1. The following members of the Board met by Zoom on 30 March to consider this application for review:
   

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

G Schott S Rowe

Dr T Brown S Gill

2. The New Zealand Police, in September 2020, submitted to the Office of Film and Literature Classification (OFLC) the four computer image files the subject of this application for review for classification under section 13(1)(ab) of the Films, Videos, and Publications Classification Act 1993 (the Act), along with 13 other images (not the subject of this review).
   
3. The images for this review are labelled as Photo (007)_3.jpg, Photo (008)_2.jpg, Photo (010)_2.jpg, and Photo (013)_2.jpg, as discussed further below (together, the images). For the purposes of the OFLC decision, Mr Ryan Burrows (the Applicant) was treated as the owner of the images.
   
4. All four images appear to be “selfie-type” photographs, in colour, of a naked crotch and a penis in various states of exposition. Each may be described as follows:
   
   1. Photo (007)_3.jpg depicts a hand holding the base of an erect penis with the crotch area visible below a striped top. There is sparse pubic hair visible. The subject of the photo is wearing green shorts which have been pulled down in order to frame and take the image. The person appears to be lying down on a bed or couch with some form of bedding or clothing visible in the shot.
      
   2. Photo (008)_2.jpg depicts another image of the person’s lower stomach area,

crotch and erect penis, again up close. There is a hand visible beside the penis,

with a thumb resting on the shaft of the penis. The background is dark, although grey underwear pushed to the subject’s knees is visible. There is sparse pubic hair visible.

100. Photo (010)_2.jpg depicts part of a semi-erect penis with some pubic hair and part of the crotch area visible. There is a hand pulling down black shorts or trousers to show part of the penis. A duvet is visible in the photo covering the person’s legs.
     

4. Photo (013)_2.jpg depicts an erect penis, with sparse pubic hair visible in the crotch area. A hand lies next to the penis with the thumb resting on the base of the shaft. Again, the person appears to be lying down with bedding and furniture visible in the rest of the image.
   

5. By decision dated 14 December 2020, the OFLC classified the four images as objectionable. As required by the Act, the Board has not had regard to that OFLC decision (although notes it has been referred to in submissions by both the owner and the Police).
   
6. Under section 47(2)(d) of the Act, the owner of the publications in question is entitled to apply to the Board to review of the OFLC decision. The Applicant has applied for review of the decision in relation to the 4 images under that subsection.
   

THE PRINCIPLES OF REVIEW AND THE LEGAL PRINCIPLES APPLICABLE

The Films, Videos and Publications Classification Act 1993

7. Section 52(2) of the Act requires that the Board conduct its review by way of re- examination of the publications at issue without regard to the decision of the Classification Office.
   
8. Section 52(3) of the Act requires the Board to examine every publication referred to it, in order to determine the classification of each.

9. In determining the classification of any publication referred to it, the Board is required by section 52(4) to take into account the matters referred to in sections 3 to 3D of the Act.
   
10. The relevant parts of sections 3 to 3D of the Act are set out below.
    
11. Section 3 of the Act sets out the meaning of “objectionable” for the purposes of the Act. Section 3(1) provides that 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. In this case, the only applicable matter is sex, and so in the remainder of this decision the other matters will be disregarded.
    
12. In turn, and for the avoidance of doubt1, section 3(1A) provides that, without limiting section 3(1), a publication deals with a matter such as sex for the purposes of section 3(1) if:
    
    1. 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
       
    2. those 1 or more visual images are, alone, or together with any other contents of the publication, reasonably regarded as sexual in nature.
       
13. It is after the section 3(1) determination of whether the publication describes, depicts, expresses or otherwise deals with sex is made, with the assistance of section 3(1A), that the second limb of the section 3(1) test is considered, namely whether sex is dealt with in such a manner that the availability of the publication is likely to be injurious to the public good. The Board will return to this two-part test later in its decision.
    
14. Section 3(2) deems a publication to be objectionable for the purposes of the Act if it promotes or supports, or tends to promote or support, certain behaviours, including (at section 3(2)(a)), “the exploitation of children, or young persons, or both, for sexual purposes”, and (at section 3(2)(b)), “the use of violence or coercion to compel any person to participate in, or submit to,
    

1 Section 3(1B) of the Act.

sexual conduct”. As confirmed by the Court of Appeal, there is a high threshold to be overcome before the deeming provision renders a publication objectionable.2

15. Section 3(3) is relevant if the publication is not deemed objectionable. That provision states that in determining whether or not a publication (other than a publication which has been deemed objectionable under section 3(2)) is objectionable, particular weight must be given to the extent and degree to which, and the manner in which, the publication does certain things, including:
    
    1. Describes, depicts, or otherwise deals with, inter alia:
       
       1. sexual violence or sexual coercion, or violence or coercion in association with sexual conduct (section 3(3)(a)(ii).
          
    2. sexual conduct with or by children, or young persons, or both (section 3(3)(a)(iv)).
       

2. Exploits the nudity of children, or young persons, or both (section 3(3)(c)).
   

16. Finally, for those publications not deemed objectionable, section 3(4) requires that, in determining whether or not a publication (other than a publication which has been deemed objectionable under section 3(2)) is objectionable, the Board must consider the following matters:
    
    1. The dominant effect of the publication as a whole.
       
    2. The impact of the medium in which the publication is presented.
       
    100. 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.
         
    4. The persons, classes of persons, or age groups of the persons to whom the publication is intended or is likely to be made available.
       

2 Moonen v the Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9.

5. The purpose for which the publication is intended to be used.
   
6. Any other relevant circumstances relating to the intended or likely use of the publication.
   

17. Section 4(1) provides that the question whether a publication is objectionable is a matter for the expert judgment of the person or body authorised or required to determine it, and evidence as to, or proof of, any of the matters or particulars that the person or body is required to consider in determining that question is not essential to its determination. Without limiting subsection (1), where evidence as to, or proof of, any such matter or particulars is available, it is required to be taken into consideration (section 4(2)).
    

Case law

18. The two decisions of the Court of Appeal in Moonen v Film and Literature Board of Review [2002] NZCA 69; [2002] 2 NZLR 754 and Living Word Distributors v Human Rights Action Group (Wellington) [2000] NZCA 179; [2000] 3 NZLR 570 apply to the Board’s review.
    
19. In Moonen, 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.”
    
20. In Living Word Distributors, 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. The remaining subsections of section 3 of the Act may assist the Board in that analysis.

SUBMISSIONS RECEIVED

21. The Board received submissions from counsel on behalf of the Applicant, from the Police and from the OFLC. These submissions are summarised here and referred to where appropriate in the Board’s own analysis below.
    

Submissions on behalf of the Applicant

22. It was submitted on behalf of the Applicant that the images ought not to be classified as objectionable under the Act because, in summary:
    
    1. The police submissions relating to charges laid against the Applicant, are irrelevant. This information was taken into account by the OFLC in its decision and unproven allegations should not form part of the classification decision.
       
    2. There is nothing within the four images that depicts the subject as a young person.
       
    100. The images do not promote or support the matters listed in section 3(2) of the Act and could not otherwise be regarded as injurious to the public good.
         
    4. Freedom of expression is a guaranteed right under section 14 of NZBORA, and it has not been taken into account sufficiently in the OFLC determination. Any limit on that guaranteed right must be confined to those that are necessary in a free and democratic society. Legislation and classification should not unnecessarily constrict this right and a liberal interpretation should be given in this particular instance. These types of pictures are not, in and of themselves, objectionable.

5. (In response to the Police submissions), the determination of objectionable must be made by reference to the image in question. The image must speak for itself and does not become objectionable because of extraneous or contextual information as to how the image may or may not have come about. That information may be relevant to any prosecution and in particular those for offences involving knowledge. The Police are therefore wrong to continuously refer to contextual or extraneous information beyond the image itself.
   

Submissions by OFLC

23. In response, in summary, the OFLC submitted that:
    
    1. The four images were submitted by the Police along with 13 other images of a similar nature. According to the Police, the subject in each publication was one of three young males, aged between 13-15 years when the images were taken. The subject in the four images is reportedly the same individual, although this cannot be conclusively established within the images as his face is not in the frame.
       
    2. The Applicant’s submission that the original OFLC determination was tainted by the contextual information provided by the Police is rejected. That submission omits to inform that the 13 other images were not classified as objectionable but were classified as R18. This differentiation is evidence the Office considered only the material presented within the four walls of each publication.
       
    100. With regard to the four images before the Board, the OFLC was of the view that the subject in each of these images presented as a young person, irrespective of the information provided by the Police.
         
    4. All four images are deliberately and solely focussed on the partially or fully exposed genitalia of the subject, who is in sexual arousal in three of the

images. The images have the character of “dick pics” and a sexual reading is

inescapable (in terms of section 3(1)).

5. Although only the subject’s genitalia is visible in each of the images, the Office believes the subject presents as a young person in his early to mid-teens because of the immature appearance of the penis and the appearance and distribution of his pubic hair. Any reasonable viewer will likely view the subject as a young person rather than a sexually mature adult, regardless of whether the images are examined individually or as a series.
   
6. Although the images are not sexually explicit, they are highly sexualised because of their intimate tone and their deliberate and exclusive focus on the subject’s genitalia. The availability of images such as these in the public domain presents young teenage boys as sexually active and aware. Viewers who have a prurient interest in young teenage boys are highly likely to find the images titillating.
   
7. Whilst the exact intentions of the creator in capturing these images are unknown, their effect is undoubtedly sexual. Although there is a high likelihood that the images were captured by the subject themselves, this is not entirely certain from what can be seen within the four walls of the publications. Regardless of whether the images were taken by the subject or another party, the effect on the viewer is the same.
   
8. It is therefore the opinion of the Classification Office that the images promote and support the exploitation of young persons for sexual purposes as they normalise the sexualisation of young teenage boys. Their availability creates and reinforces the idea that teenage boys are appropriate subjects for adult sexual fantasy and desire.
   
9. While it is not the intention of the Classification Office to criminalise young people who may well take such pictures and videos of themselves and each other, the Office is well aware this behaviour is being exploited by sexual predators who surreptitiously, or even blatantly, coerce children and young people into sharing intimate media.

10. The digital nature of the publications means that their availability could easily extend beyond the subject (if the subject were the creator) or the intended recipients. If made available online the images would inevitably attract the attention of people with a sexual interest in teenage boys.
    
11. The public and the Classification Office place high importance on the protection of young people and vulnerable individuals from all forms of sexual exploitation. The availability of images such as these is likely to promote and normalise the sexualisation of young people.
    

50. An objectionable classification of these publications will interfere with the right to freedom of expression as set out in s14 of NZBORA. However, this is consistent with Parliament’s intention that publications that promote or support the exploitation of young persons be deemed objectionable.
    

Police submission

24. Finally, the Police submitted that:
    
    1. The four images deal with the sexual exploitation of young persons due to the focus of the images being directed on the exposed aroused genitalia in three of the images and partially exposed genitalia in the fourth image.
       
    2. The appearance of the genitalia and pubic hair in the four images suggest the subject is that of a young person. The subject is 15 years of age, and the Applicant was aware of that when the images were taken.3
       
    100. Section 3(4)(e) and (f) of the Act entitle the Board to take into account the circumstances in which the publications were created.4
         

3 The Board notes that the Police submissions convey other information about the Applicant and his connection to the subject in the four images, information which the Board has not taken in account in its determination.

4 Ibid.

4. The fact that the images appear to be that of a young person in a sexualised state and being in a digital medium and therefore easily distributed amongst sexual predators who have an interest in teenage boys, means that the images should be classified as objectionable.
   
5. When considering the images, and the circumstances beyond their creation, they do meet the criteria for objectionability.
   

REVIEW OF THE PUBLICATIONS

25. The Board has considered the images separately as it is required to do but, given the similarity in the four images, the Board’s discussion of all of them is combined below.
    
26. The Board is aware of the many other aspects of the law which become engaged by the circumstances of this case, including issues of privacy and confidentiality, as well as the restrictions imposed by such legislation as the Harmful Digital Communications Act 2015, and other offences which may apply under the Crimes Act 1961.
    
27. In determining its review, the Board is bound by the terms of its empowering statute and, in being so bound, is concerned to emphasise it is in no way condoning any criminal activity which may arise as a consequence of the creation of the images. Such activity is abhorrent to the Board. Nor is it blind to the general concern that naked selfies can prove to be injurious to their subjects due to loss of control over the images and them being used for nefarious purposes. This is an issue which the current legislation is not well equipped to deal with. However, it is that legislation as it currently stands, which the Board must follow.
    
28. First, then, in terms of the section 3(1) gateway, the Board apprehends that the only relevant consideration under that provision is whether the images deal with a matter such as sex. To determine that, the Board refers to section 3(1A), noting that the images satisfy the first limb of that provision’s test because they contain one or more visual images of a young person who is nude or partially nude.
    
29. Notably, the Act does not define what constitutes a “young person” (in contrast to other

pieces of New Zealand legislation). This is probably deliberate, to keep the

consideration of such broad, bearing in mind the Act’s purpose. Here, the Board considers that the subject of the images (or subjects depending on if it is the same person) is a teenager of indeterminate age. The Board has reached this conclusion entirely from the images themselves, and has had no need to consider any further information provided by the Police as to the subject’s, or subjects’, age. The Board has reached this conclusion because of the sparse pubic hair in each of the images, and the smooth skin on the penises and on the hand resting on the penis in the images. The images were, in the Board’s view, not depicting adult genitalia but, nonetheless, the Board was not able to conclusively state the age of the young person.

30. The Board also considers that the second limb of the section 3(1A) test is met. The penises in the images are either erect or semi-erect and the entire focus of the images is on the penis. The Board considers there can be no other interpretation of the images than they are what are known colloquially as “dick pics”.
    
31. Next, then, the Board moved on to consider whether the images ought to be deemed objectionable in terms of section 3(2). For the purposes of this consideration, the Board has limited itself to consideration of the images themselves.
    
32. In that regard, the Board does not consider the images can be deemed objectionable in terms of any of the factors in section 3(2). There is nothing in the images themselves which promotes or supports, or tends to promote or support (relevantly):
    
    1. the exploitation of children or young persons for sexual purposes (section 3(2)(a); or
       
    2. the use of violence or coercion to compel any person to participate in, or submit to, sexual conduct (section 3(2)(b)).
       
33. As noted in Moonen,5 the concepts of promotion and support are concerned with the effect of the publication, not with the purpose of the intent of the person who creates or possesses it, or the intent of the person who may receive such images. The Board does not accept the Police submission that section 3(4) allows it to receive extraneous information which is not proven, and which may be the subject of separate criminal
    

5 At [29].

proceedings and therefore would need to be tested in a court of law, and established by the prosecution in the usual manner.

34. The Board is well aware that young people share these types of images increasingly frequently. The Board apprehends that it is not the intention of the Act as currently drafted to criminalise young people for this behaviour, which arises out of the social practices of consenting young people mediated by technology (regardless of the nefarious use sexual predators may make of such images).
    
35. The Board then moved on to a consideration of the factors in section 3(3) to help it determined whether the images describe, depict, express or otherwise deal with sex in such a manner that the availability of the images is likely to be injurious to the public good (section 3(1)).
    
36. The Board first considered the extent and degree to which, and the manner in which, the publication describes, depicts or otherwise deals with sexual coercion (section 3(3)(a)(ii); and/or sexual conduct with or by children or young persons (section 3(3)(a)(iv)).
    
37. On the face of the images, there is nothing which suggests sexual coercion in the Board’s view. As has already been stated, the Board does not consider it is able to take into account the extraneous information provided by the Police, when that information may be the subject of criminal charges still to be brought and made out. On the mere face of the images alone, these are straightforward “dick pics” with nothing in them to indicate sexual coercion.
    
38. In terms of section 3(3)(b) and whether the images exploit the nudity of children or young persons, the same considerations apply. On the face of the images themselves, there is no exploitation and the images are no more than the type of selfie images increasingly being shared between teenagers on social media. The Board, while certainly not condoning this practice, does not wish to criminalise teenagers for this behaviour when the intention of the Act is plainly not to do so. There may be other societal concerns at play here, but this legislation is not currently equipped to address those concerns in the case of purely straightforward images of this nature.

39. The Board turned its mind to whether section 3(3)(d) was relevant and determined it did not because, again, nothing on the face of the images promotes or encourages a criminal act.
    
40. The Board then moved onto the factors in section 3(4):
    
    1. The dominant effect of the images as a whole is an indisputable focus on the sexually aroused penis of a young person. There is no other effect apparent.
       
    2. The images are in digital file format and, as such, and as the Board has commented on in previous decisions, can be easily shared and disseminated amongst a wider group than just the immediate recipient of them.
       
    100. There is no readily apparent character to the images, including any merit, value or importance that the images have in relation to literary, artistic, social, cultural, educational, scientific, or other matters.
         
    4. The person or classes of persons or age groups of the persons to whom the images are intended or likely to be made available to the Board is simply not known from the images alone. The Board does note, as it has already, that the form in which the images were shared, lends itself to easy dissemination to a wider audience. Therefore, if the images were disseminated and used by adult males for their sexual titillation, there is no doubt their availability could be seen as injurious to the public good. This is not, however, a factor the Board can determine from the images themselves.
       
    5. Again, on the face of the images alone, the Board cannot determine the purpose for which the images were intended to be used. The Board is not the appropriate forum to determine questions relating to criminal conduct still to be determined, regardless of how distasteful and offensive on their face any alleged circumstances surrounding the obtaining of the images may be.
       
    6. The Board notes, under section 3(4)(f), the circumstances in which the Police submit that the images were obtained. It goes without saying that, if proven in a criminal context, the Board considers those circumstances to be abhorrent and exploitative. The Board is mindful, however, that the circumstances as

alleged by the Police are still to be tested in a court of law, and the Board has not taken them into account in reaching its decision.

Conclusion

41. Weighing up all of the above considerations, then, and bearing in mind the need to apply an interpretation consistent with the NZBORA and to favour freedom of expression over objectionability in marginal cases, the Board is unable to conclude that the images describe, depict, express, or otherwise deal with sex in such a manner that the availability of the images is likely to be injurious to the public good. The Board is certainly concerned at the apparently increasing dissemination of “dick pics” by teenagers, and the use to which these particular images may have been put (as outlined in the Police submissions) the Board finds abhorrent. However, the Board cannot reach a determination of objectionability on the images themselves.
    
42. In conclusion, then, the Board’s decisions on all four images is that they be classified as unrestricted under the Act.
    
43. 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 20th day of April 2021

Rachael Schmidt-McCleave
President

FILM AND LITERATURE BOARD OF REVIEW SUMMARY DECISION

1. This was an appeal to the Board under section 47(2)(d) of the Films, Videos and Publications Classification Act 1993 (the Act) by the Applicant Mr Burrows for a review of the decision of the Office of Film and Literature Classification (the Classification Office) dated 14 December 2020.
   
2. The publications at issue consisted of four images in digital file format depicting a

young person’s penis in various states of arousal.

3. In its decision, the Classification Office classified all the publications as objectionable under the Act.
   
4. Mr Burrows sought a review of that decision.
   
5. After reading submissions from the Applicant, the Classification Office and the Police, the Board have determined that the images should be classified as unrestricted under the Act.
   
6. In summary, the Board considered that, while the images depict a young person nude or partially nude in a way that is reasonably capable of being viewed as sexual in nature, the images do not describe, depict, express, otherwise deal with sex in such a manner that the availability of the images is likely to be injurious to the public good. The Board determined that the images are what are known colloquially as “dick pics”, and the Board was unable to consider extraneous material as to how the images may have come into being. On the face of the images alone, and applying the provisions in the Act as they currently stand, the Board was unable to deem or determine the images to be objectionable.