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Image [2021] NZFLBR 4 (23 May 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 the publication being image titled 2000330.018.

INTRODUCTION

1. The following members of the Board met in Wellington on 13 May 2021 to consider this application for review:
   

Mr N J Dunlop (Vice-President) Dr T Brown

Ms S Gill

Ms S E Rowe Dr G Schott

2. The publication subject to this review is a single, tightly framed photographic image of the front torso of a physically immature female. It extends from just below the subject’s neckline to the top of her thighs. The area from a little below the umbilicus is somewhat shaded, apparently due to the camera angle. The camera angle is directed at the upper/middle torso. The genitalia are not able to be seen due to the overhang of the stomach and shading referred to. The image shows scattered superficial lesions in the nature of hives or insect bites in the area extending from the breasts to the stomach.
   
3. On 25 November 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. The Classification Office also considers that the image exploits the young subject’s nudity to a degree that is likely to be injurious to the public good.
   
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. The applicant sought and obtained the leave of the Secretary.

5. The Board is required to conduct a review as soon as possible, and to examine the publication. The review is by way of re-examination without regard to the decision of the Classification Office2.
   
6. There are three possible classifications: unrestricted or objectionable or objectionable except in one or more specified circumstances.3
   
7. The question of whether or not a publication is objectionable is a matter for the expert judgement of the Board, and evidence as to, or proof of any of the matters the Board is required to consider is not essential to its determination.4
   
8. 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, Mr P K Hamlin, barrister of Auckland. The applicant did not ask to appear before the Board.
   
9. The Board has the power to invite submissions from the Classification Office.6 It made that invitation and submissions were received.
   
10. The Board invited the Police to provide submissions, but none were provided.
    

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.

2 Section 52(2).

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

4 Section 4.

5 Section 53(1).

6 Section 54(1).

11. 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 viewing the image, considering the submissions and engaging in discussion. At its meeting, the Board reached the classification decision discussed below by a 4:1 majority. That decision was to classify the publication as unrestricted.
    

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 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
    

7 ibid

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.

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 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.
    

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.”

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 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. Mr Hamlin on behalf of the applicant submits that image is not reasonably capable of being regarded as sexual in nature. He submits that the subject is not in a sexualised pose, and that the purpose of the image appears to be to photograph the hives or insect bites on the subject’s chest area, which explains the tight perspective. The image does not exploit the nudity of the subject, nor degrades or demeans the subject. He submits that “the dominant effect of the publication is that of a photograph intended to demonstrate a medical issue. It appears to be the kind of photograph which could be taken by a concerned parent or caregiver.”
    
20. The applicant submits that the image does not enter the section 3(1) gateway, should not be deemed objectionable, and should not be determined to be objectionable.
    
21. The Classification Office submits that the publication does deal with a matter of sex in terms of the section 3(1) gateway because of the tight framing on the subject’s immature body and because it is the visual image of a nude child or young person. Hence the Classification Office submits that the publication enters through the s3(1) gateway.

22. The classification office further submits that the publication should be deemed objectionable because it tends to promote or support the exploitation of young persons for sexual purposes. It submits that the image sexualises the subject’s naked body to a high degree, and is not the type of photograph that would be taken for medical purposes. It also submits that if the publication is not deemed objectionable it should be determined to be objectionable.
    

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)).

23. The Board has no hesitation in finding that the publication deals with a matter such as sex. It does so on the basis of section 3(1A) which provides that a publication deals with a matter such as sex if it contains a visual image of a child or young person who is nude or partially nude. Neither the applicant nor Classification Office suggests that the subject in the image is adult. It is plainly obvious from a viewing of the image that she is a child or young person. She is at least partially nude, most likely fully nude.
24. Accordingly, the publication enters the subject matter gateway11. The issue for the Board is therefore, whether the manner in which the publication depicts or otherwise deals with a matter of sex, is such that its availability, is likely to be injurious to the public good.
    

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

25. The Board is unanimously of the view that the publication should not be deemed

objectionable.

11 See footnote 8.

26. The only relevant paragraph in section 3(2) is paragraph (a) which refers to the exploitation of children or young persons for sexual purposes.
27. The issue is therefore whether the publication promotes or supports, or tends to promote or support the exploitation or children or young persons for sexual purposes.
28. As is referred to in footnote 10 herein:
    

“Description and depiction .... 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.”

29. The Board is unable to identify features of the publication which can fairly be said to promote or support the sexual exploitation of children or young persons.
    
30. The Classification Office says that the intimate tone and tight focus on the subject’s torso and immature breasts in particular, the capturing in the image of the subject’s inguinal folds and thigh gap, and the exclusion of her face, point to a high level of sexualisation, and hence exploitation. The Board respectfully disagrees. The image is of frank nudity, but lacks features which fairly point to it going beyond plain depiction to the extent of indicating promotion and support of sexual exploitation. Discussion as to whether the photograph was taken for medical purposes related to the skin lesions is relevant for current purposes to the extent that features of the image do not emphatically rule this out as a possibility. A medical explanation would be ruled out if the publication supported and promoted sexual exploitation. The Board cannot, and does not decide for what purpose the photograph was taken, but the fact that it is at least arguable that it was for medical purposes points to ambiguity of purpose. Were the image to promote or support the sexual exploitation of children or young people, then its purpose would be clear.
    
31. Having decided not to deem the publication objectionable, the Board must now consider whether to determine the publication objectionable having regard to subsections 3 and 4 of section 3.

Which of the matters set out in section 3(3) about which the Board is required to give particular weight when making its determination are applicable, and what is the Board view about them?

32. The only relevant provisions in section 3(3) are paragraph (b) dealing with the exploitation of the nudity of children or young people, and paragraph (c) dealing with degrading or dehumanising any person. The Act requires that particular weight be given to them by the Board. The Board is required to consider the extent and degree to which, and the manner in which they apply. The other section 3(3) considerations do not apply in relation to this publication.
33. It is important to note that these paragraphs prescribe mandatory considerations to which the Board is required to give particular weight when deciding whether the publication is objectionable. They not statutory tests. There is just the one primary test which the Board is considering. That is the test set out in paragraph 3(1), namely whether the availability of the publication is likely to be injurious to the public good. In considering that test, the Board is entitled to take account of any relevant considerations. The considerations set out in section 3(3) are mandatory, and are to be given particular weight, but they do not prevent the Board applying other considerations as well. It is fair to say, however, that the section 3(3) considerations will likely give the Board a strong indication of whether or not it should determine a publication to be objectionable. The considerations constitute a list of statutory policy concerns about possible objectionableness which are considered of key importance. The issue is whether, following consideration, the concerns are manifest in extent, degree and manner as to indicate that the availability of the publication is likely to be injurious to the public good. It is usual, as in this case, that some of the section 3(3) considerations have no applicability whatsoever.
34. Paragraphs (b) and (c)will now be considered in turn. As mentioned, they are the only section 3(3) considerations which are possibly applicable to the publication under consideration.

35. Does the publication exploit the nudity of children or young persons? A 4:1 majority of the Board does not consider that it does to an extent, degree or manner which indicates that its availability is likely to be injurious to the public good.
36. The Board has sought to identify any aspects of the publication which are indicative of exploitation of nudity. How or why the publication came into existence is not known to the Board, and in any event of limited or no relevance. It is what the image itself portrays or indicates which is of significance. Overall, it is a frank photograph of part of the body of a physically immature female. The fact that the whole of the body, including the face is not shown, does not give it a sexualised character. It is conceivable that if the whole body were shown that would give it a sexualised character. The same can be said about the tight framing of the image. The minority member of the Board considers that the inclusion of the groin area in the image gives it a sexualised character. The majority considers that the inclusion of the groin area is not of significance because it is indistinct and not the focus of the image. There are no other identifiable features of the image such as the pose of the subject which give it a sexualised character. Nor are there any contextual, background or added features, such as location, furniture or messaging, which might give it a sexualised character. The closely cropped nature of the image means that there is essentially nothing in the image apart from the subject’s body.
37. Does the publication degrade or demean any person? A 4:1 majority of the Board does not consider that it does to an extent, degree or manner which indicates that its availability is likely to be injurious to the public good. The Board’s majority reasoning in this regard is essentially the same as that applying to the exploitation of nudity consideration. The minority Board member considers that because the image is exploitative, it thereby degrades and demeans the subject of the image, and for that reason should be found to be objectionable.
    

Section 3(4) considerations

38. The Board is required to consider the matters set out in paragraphs (a) to (f) of section 3(4) when determining whether the availability of the publication is likely to be injurious to the public good. The matters constitute a comprehensive but non- exhaustive mandatory list of considerations which may variously prove to be

unhelpful, helpful, important or essential to the determination. Each paragraph will now be considered in turn.

39. In the view of the majority, the dominant effect of the publication is the frank, non- sexualised portrayal of much of the nude body of a physically immature female. This consideration does not therefore point to the likelihood of injury to the public good. The portrayal of nudity, even of a child or young person, is not in and of itself objectionable. The minority member considers that the dominant effect of the publication is that of sexual exploitation, and hence that it is objectionable.
40. Assuming that the image is available in electronic form (which is not clear), the publication can potentially be shared and viewed by an almost limitless number of persons. If the image is not sexually suggestive as the majority finds, sharing is not likely to occur to the extent which might well occur if it was sexually suggestive. This consideration therefore counts against the likelihood of injury to the public good. The minority member, on the other hand, considers that there is a real risk that the image has been or will be widely shared for purposes of sexual titillation.
41. All Board members agree that the publication has no notable merit, value or importance. This consideration is therefore neutral with regard to the likelihood of injury to the public good.
42. The publication, assuming it to be in electronic form, could potentially be made available to any persons, classes of person or age groups. The same views as referred to in paragraph 40 apply.
43. It is not known for what purpose the publication is intended to be used. This consideration is therefore neutral with regard to the likelihood of injury to the public good.
44. The Board does not identify any other relevant circumstances relating to the intended or likely use of the publication.
    

Outcome

45. Having carefully taken account of, and weighed the considerations in subsection 3 and 4 of section 3, and there being no other pertinent considerations, the Board by a majority of 4:1 determines the publication not to be objectionable.
46. Although the publication deals with a matter of sex, being a visual image of a child or young person partially or fully nude, it does not do so in a manner such that the availability of the publication is likely to be injurious to the public good.
47. It follows that the Board classifies the publication as unrestricted.
    
48. The Board directs the Classification Office to enter the Board’s decision in the

register.

Dated at Wellington

23 May 2021 | 9:10 AM NZST

_______________

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.

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 who did not agree

with the decision of the Office of Film and Literature Classification (the Classification Office) dated 25 November 2020 to classify the publication objectionable.

3. The publication subject to this review is a single, tightly framed photographic image of the front torso of a physically immature female. It extends from just below the subject’s neckline to the top of her thighs. The area from a little below the umbilicus is somewhat shaded, apparently due to the camera angle. The camera angle is directed at the upper/middle torso. The genitalia are not able to be seen due to the overhang of the stomach and shading referred to. The image shows scattered superficial lesions in the nature of hives or insect bites in the area extending from the breasts to the stomach.
   
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 there are no concerning features about the publication, and that it should be classified unrestricted. He submitted that it was taken for medical purposes.

6. A 4:1 majority of the Board decided that although the publication deals with a matter of sex, it being a visual image of a child or young person partially or fully nude, it does not do so in a manner such that the availability of the publication is likely to be injurious to the public good.
   
7. All Board members agreed that the publication should not be deemed objectionable because it does not promote or support the exploitation of children or young persons for sexual purposes.
   
8. The majority of the Board members did not consider that the publication exploited the nudity of children or young persons, nor degraded or dehumanised any person, because it did not have a sexually exploitive character. The one minority member considered the converse.