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Video and Images [2021] NZFLBR 5 (28 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 of the Act by

(“the applicant”) for a review of the publications titled:

Video of Daughter (OFLC Ref: 2000330.059); 1696440050354124(2) (OFLC Ref: 2000330.060);

8323060194106841936(2) (OFLC Ref: 2000330.061);

8582906908239233288 (OFLC Ref: 2000330.063);

3585832914296975346(2) (OFLC Ref: 2000330.064);

8516164670500956943(2) (OFLC Ref: 2000330.065);

5549175257640169472(2) (OFLC Ref: 2000330.066);

5167202379013578541(2) (OFLC Ref: 2000330.067);

9120071277288642983(2) (OFLC Ref: 2000330.068);

2580769355882543797(2) (OFLC Ref: 2000330.069);

6457955764434452745(2) (OFLC Ref: 2000330.070)

INTRODUCTION

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

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

Ms S Gill Dr G Schott Dr T Brown

Ms S E Rowe

2. There are eleven publications subject to this review, ten image files1 (together, “the images”) and one video.2 Each of the 10 images has been considered separately by the Board but, due to their similarity, have been discussed in two groups in the analysis section below.3 The video is discussed separately.
   
3. All of the images depict the same girl, standing naked in a bathtub, and facing the camera directly or at a slight angle. Her naked breasts and pubic area are evident in all the images. The images appear to have been taken by someone from the doorway of the bathroom. In six of the images, the girl’s face is cut off and cannot be seen. In one image, most of the face is cut off but part of a mouth, one eye and some hair can be seen. In the remaining three images, the girl’s face is visible: in one she is looking up and to the side, in another she has a hand to her face and in the third, she appears to be looking directly at the person taking the photograph. In all the images, a drying flannel and a bottle of toiletries are visible, although the flannel does appear in different places in the images, which suggests to the Board the images were not necessarily all taken at the same point in time.
   

1 1696440050354124(2) (OFLC Ref: 2000330.060); 8323060194106841936(2) (OFLC Ref:

2000330.061); 8582906908239233288 (OFLC Ref: 2000330.063); 3585832914296975346(2) (OFLC

Ref: 2000330.064); 8516164670500956943(2) (OFLC Ref: 2000330.065); 5549175257640169472(2)

(OFLC Ref: 2000330.066); 5167202379013578541(2) (OFLC Ref: 2000330.067);

9120071277288642983(2) (OFLC Ref: 2000330.068); 2580769355882543797(2) (OFLC Ref:

2000330.069); 6457955764434452745(2) (OFLC Ref: 2000330.070

2 Video of Daughter: OFLC Ref: 2000330.059

3 The two groups consisting of one where the girl’s face is either not visible or barely visible, and the other where the girl’s face is completely visible.

4. The video is 46 seconds long and depicts what appears to be the same girl as in the images getting out of the shower naked and drying herself. It does not appear to the Board that the girl is aware she is being filmed, as she is very relaxed and is chatting away to the person filming (who speaks occasionally, telling the girl to dry herself for example, and from the sound of his voice is clearly a male). The video is focussed largely on the girl’s naked body.
   
5. The Board considers that the video footage cannot be matched to the still images. That is, the images are not stills of the video footage submitted, but suggests a separate occasion. In the video footage the individual filming enters the bathroom from another interior space within the same dwelling. In the still images the female is depicted standing toward the back of the bath, underneath or near the shower fitting. As the individual filming enters the bathroom the same female is positioned at the other end of the bath, as she is already in the process of exiting the shower. She is primarily filmed standing next to the bath (with shower fitting), where she proceeds to dry herself (once permission is granted by the individual filming her).
   
6. On 25 November 2020, the Classification Office classified the images and the video as objectionable under section 3(3)(b) of the Act because, said the Classification Office, they exploit the nudity of a young person to such a degree that their availability would be injurious to the public good.
   
7. 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 Affairs.4 The applicant sought and obtained the leave of the Secretary.
   
8. This means that the Board is required to conduct a review as soon as possible, to examine the images, and to determine their classification. The review is by way of
   

4 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.

re-examination without regard to the decision of the Classification Office.5 There are three possible classifications: unrestricted or objectionable or objectionable except in one or more specified circumstances.6

9. 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.7
   
10. The applicant had the right to appear before the Board, and the right to make submissions to it.8 Submissions have been received from the applicant via his legal counsel, Mr Hamlin. The applicant did not seek to appear before the Board.
    
11. The Board has the power to invite submissions from the Classification Office and from the New Zealand Police.9 It made that invitation and submissions were received from both. The applicant was given the opportunity to comment on the submissions from the Classification Office and from the New Zealand Police and did so.
    
12. The Board did not consider it necessary to seek or invite other submissions, or to hold an oral hearing, obtain information, consult with others, or make inquiries10 and was able to classify the images and the video simply by considering them and reviewing the submissions received.
    

THE KEY LEGAL CONSIDERATIONS

13. Key legislative provisions referred to are set out in the schedule hereto.
    
14. The Board is first required to consider in terms of section 3(1) whether the images, and/or and the video, describe, depict, express, or otherwise deal with matters such as sex, horror, crime, cruelty, or violence. If the consideration results in a negative
    

5 Section 52(2).

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

7 Section 4.

8 Section 53(1).

9 Section 54(1).

10 Ibid.

answer, then the Board must thereupon classify the images, and/or the video, as unrestricted.11

15. A publication deals with a matter such as sex for the purposes of section 3(1) if 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 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.12
    
16. If the section 3(1) consideration just referred to results in an affirmative answer, then the next consideration is whether the images, and/or the video, are likely to be injurious to the public good.13
    
17. This then requires the Board to consider whether the images, and/or the video, are deemed objectionable under section 3(2). This provision has been interpreted by the Court of Appeal,14 which emphasised the high threshold to be overcome for the
    

11 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.

12 Section 3(1A). Section 3(1B) states that subsection (1A) is for the avoidance of doubt.

13 Ibid.

14 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

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.

18. If the Board decides that it must deem the images, and/or the video, to be objectionable for the purposes of the Act, then it need not consider any further. It must classify the images, and/or the video, as objectionable. For the avoidance of doubt, the Board has considered each photo, and the video, independently and applied the test to each photo, and the video (as will be seen below) and is merely referring to “the images” in the plural here for ease of reference.
    
19. If the Board decides that the images, and/or the video, are not deemed by the Act to be objectionable, then it must determine whether the images, and/or the video, are objectionable, or should be given one of the other classifications (unrestricted or objectionable except in specified circumstances).
    
20. When making a determination as to whether the images, and/or the video, are 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

21. As stated, the Board received and considered submissions from the applicant, the Classification Office and the New Zealand Police. These are summarised below.

Applicant Submissions

22. First, after reviewing the reasons for the Classification Office decision, it was submitted on behalf of the applicant that (in summary):
    
    1. The publications do not deal with a matter such as sex pursuant to section 3(1A) of the Act. Although it is acknowledged that the girl in the images and
       

otherwise dealt with, which can fairly be said to have the effect of promoting or supporting that activity.”

the video is 13 years old, the applicant submits that she does not appear as a young person but appears to be a young adult woman, and hence section 3(1A)(a) does not apply.

2. The images and the video are not reasonably capable of being regarded as sexual in nature (in terms of 3(1A)(b)) because they are not staged, there is no sexual posing, there is no depiction of sexual activity, or anything suggestive of sexual activity, and the publications do not draw attention to any particular area of the subject’s body. Nudity alone does not make a publication reasonably capable of being sexual in nature.
   

100. For a publication to be objectionable it must be injurious to the public good. In Robson v Hicks Smith15, the High Court (in interpreting a similar provision to section 3 of the Act, namely section 2 of the Indecent Publications Act 1963), considered that indecent material requires a “corrosive or actively harmful tendency which is the real justification for restricting or banning material of this sort.”16 Likewise, the applicant submitted, in Collector of Customs v Lawrence Publishing,17 the Court of Appeal considered that material should only be censored when there is ‘discernible injury’:
     

“[The] statutory concept [of injuriousness to the public good] requires demonstration that any relevant material has a capacity for some actual harm in order to justify the contemplated censorship.”

4. The availability of the publications is not likely to cause actual harm to the community since the subject appears to be an adult rather than a young person.
   
5. Any evidence before the Board as to the age of the subject is not relevant to the question of whether the availability of the publication is likely to be injurious to the public good. The question of injuriousness to the public good depends on the publications themselves and not on extraneous material. The
   

15 Robson v Hicks Smith and Sons Ltd [1965] NZLR 1113.

16 Ibid at 1123.

17 Collector of Customs v Lawrence Publishing 1 NZLR 404

question whether the subject appears to be a young person is a question for the Board to make upon viewing the publications.

6. The publications may be more appropriately dealt with through the provisions of the Crimes Act 1961 which deal with making, possessing, and distributing intimate visual recordings.18
   
7. Even if the Board determines that the publications pass the gateway test in section 3(1), they should not be deemed objectionable under section 3(2). None of the matters listed in section 3(2) are promoted or supported by the publications.
   
8. Further, even if the Board determines that the publications pass the gateway test in section 3(1), there is no further basis for the publications to be considered objectionable. The only relevant provision in section 3(3) is section 3(3)(b), but it is submitted that the publications appear to depict an adult rather than a young person.
   
9. In terms of the section 3(4) considerations:
   
   1. The dominant effect of the publication is that of an intimate visual recording.
      

2. The publications were located on a personal electronic device. They are not intended for any distribution and there is no evidence that the publications have been distributed.
   

Classification Office Submissions

23. The Classification Office, in its submissions, stated that there are four core questions that it considered when classifying these 11 publications:
    

18 Crimes Act 1961, ss 216G – 216J

1. Does the subject present as a young person? The Classification Office considered that, basely solely on the information available within the four square walls of each publication, the female subject of the publications presents as a young teenager (shown by the shape of her body and her level of physical development). The Classification Office submitted that this effect is stronger in those images where the girl’s face is visible. An objective viewer is likely to perceive her to be a young person.
   
2. Do the publications deal with matters of sex? The Classification Office submitted that the video and images, in depicting a nude young person in a bathroom, are reasonably capable of being regarded as sexual in nature by focussing on the girl’s naked body, in a place where one would expect privacy.
   

100. Do the publications promote and support or tend to promote and support the exploitation of young persons for sexual purposes? The Classification Office submitted that the publications do not meet the high threshold required for tending to promote and support, or actually promoting and supporting, the exploitation of young persons for sexual purposes. Sexual activity is not depicted and there is no sustained or close focus on the subject’s sexual parts, nor is she posed in a sexual way.
     

4. The publications have a strong focus on the young subject’s nudity and are therefore more appropriately considered under section 3(3)(b), and the question whether the publications exploit the young person’s nudity to such a degree and in such a manner that their availability is likely to be injurious to the public good. The Classification Office submits that the publications do exploit the nudity of the young subject to a high degree:
   
   1. In the video, the girl appears relaxed and not self-conscious as she interacts with the man filming her. It is unclear whether she is aware she is being filmed, and the focus is on her body which is front on to the camera at all times.

2. The images are contrived to focus on the girl’s immature body in a manner that strongly sexualises and objectifies her. This is particularly true of those images where the girl’s face is out of frame.
   
3. The voyeuristic and intrusive effect is heightened by the way the girl has been photographed in the bathroom, a place where she has a reasonable expectation of privacy. Viewers who have a prurient interest in young persons may derive a sexual thrill from the fact that the girl appears to be unaware that her nude body is being captured by the camera.
   

5. With regard to the other considerations in section 3(4), the Classification Office submitted that the dominant effect of the publications is the sexualisation of the naked body of a young person and, regardless of the owner’s intent, the digital medium means that the publications have the potential to be widely shared and stored across a variety of devices. This would further exploit the young subject should sharing occur.
   
6. The New Zealand public and the Classification Office place high importance on the protection of young people and vulnerable individuals from all forms of sexual exploitation. In this case, the construction of the Act rightly puts the rights of children not to have exploitative publications made of them ahead of the rights of adult freedom of expression enshrined in section 14 of the NZBORA.

Police Submissions

24. Finally, the New Zealand Police submitted simply that the person in the video and the images has been confirmed as the daughter of the owner of the publications who, at the time of the making of the publications, was 12 years of age. (The relationship referred to and the biological age of the subject of the images are irrelevant for current purposes).
    

DISCUSSION

Do the images, and/or the video, describe, depict, express or otherwise deal with matters such as sex, horror, crime, cruelty or violence?

25. As referred to in paragraph 14 above, this is the initial “gateway” issue for the Board to consider under section 3(1).
26. The Board has considered all of the images individually, and the video, and has agreed that each of the images, and the video, meets this gateway test, in that they deal with a matter such as sex. The Board has reached this view by applying section 3(1A) of the Act. The Board considers that the subject of the images, and of the video, is a young person. This is particularly obvious in those images, and in the video, where the subject’s face is seen. However, the Board also considers that the girl’s body in those images where her face is not visible is that of an immature, still developing, young person.
27. Further, apart from section 3(1A), the fact that the images and the video, are filmed while the young person is in the bathroom, finishing up her shower, i.e. a place where she might expect to find privacy and where she is being filmed for no other apparent reason than because she is naked, satisfies the Board that the images and the video are reasonably capable of being regarded as sexual in nature.
28. The Board is therefore satisfied that each of the images, and the video, passes the initial gateway test.
29. The next part of the Board’s decision therefore considers whether each of the images, and the video, can be deemed objectionable, and/or are objectionable due to the other considerations in sections 3(3) and 3(4).
    

IMAGES WITH FACES SHOWING

30. As stated above, there are three images where the girl’s face is visible. In one, she has a hand up to her eye as if removing something, and in the other two she appears to be looking above the camera, presumably to the person holding it.

Should the images with face showing be deemed objectionable?

31. The issue under section 3(2) is therefore whether the image promotes or supports, or tends to promote or support, the exploitation of children, or young persons, or both for sexual purposes.
32. In considering this issue, the Board has regard to the judicial interpretation of the subsection referred to in footnote 14 above and, particularly, the high threshold for section 3(2) to apply.
33. The Board considers that the image does not meet this threshold. There is nothing about the images of the girl with her face showing which promotes or supports, or tends to promote or support, the exploitation of young persons for sexual purposes (i.e. section 3(2)(a), the only relevant paragraph in section 3(2)).

Do the images with face showing come within section 3(3) taking account of section 3(4)?

34. The Board unanimously agrees that the images of the girl with her face showing be determined objectionable under section 3(3). In making that determination the Board has given particular weight to the matters in section 3(3) and considered the matters listed in section 3(4). The Board has carefully considered the authorities referred to by the applicant, but considers that there is a capacity for real harm arising from those images for the reasons discussed below.

Section 3(3) factors

35. The Board considers that section 3(3)(b) is the relevant provision, and that the images of the girl exploits her nudity as a young person. Regardless of whether the young person knew she was being filmed, (the way she looks well above the camera lens as if to the photographer’s face is a possible indication that she did not know she was being filmed), the images send the message that it is acceptable for young persons to show their naked bodies in this way in a place which is usually expected and accepted to be a private setting. The camera operator has ensured that the breasts and pubic area of the young person are visible in every shot.
36. The Board considers that to have such images potentially circulating in the digital sphere reinforces the message that society accepts that young persons may be

photographed nude, with or without their knowledge, when they are committing a private act, such as bathing or showering. The Board is of the view that such an attitude to young person’s nudity is exploitative of that nudity and is injurious to the public good.

Section 3(4) factors

37. As stated, in determining whether a publication is objectionable, section 3(4) of the Act requires the Board to consider the matters set out in that subsection.
38. In terms of section 3(4)(a), the dominant effect of each of the images is to show a naked young person undertaking a private action (bathing or showering) in a space where ordinarily there is a reasonable expectation of privacy.
39. The medium used (section 3(4)(b)) is a digital image, capable of being stored electronically and shared easily via email, text or social media. Its impact is therefore potentially significant, in that the young girl has no way of determining how widely the images may have been shared or distributed. The intention of the owner of the photographs in this regard is irrelevant. The girl is recognisable in the images where her face is visible, and the Board considers that, once the images are circulating or able to be circulated, she has no way of keeping track in years to come of where those images may end up.
40. There is no relevant character attached to the images in terms of section 3(4)(c).
    
41. The Board has no way of knowing the persons, classes of persons, or age groups of the persons to whom the images are intended or likely to be made available (section 3(4)(d)) but, given its digital medium, notes that they have the potential to be shared widely amongst those with an interest in the sexualising of children.
42. The Board considers there to be no other purpose to the images than titillation and voyeurism (section 3(4)(e)).
43. All that being so, the Board determines that the images with the face visible are objectionable because they describe, depict, or otherwise deals with sex in such a manner that the availability of the images is likely to be injurious to the public good for the reasons discussed.

44. Classification of the images with the face visible as objectionable is a reasonable limit on the section 14 BORA right to freedom of expression which is demonstrably justified in a free and democratic society.
    

IMAGES WITHOUT FACE SHOWING

45. As stated above, there are seven images where the girl’s face is either not visible or only partially visible.
46. The Board applies the same reasoning to these seven images as to those where the girl’s face is visible. The images where the face is not visible, or is only partially visible, convey an air of surreptitiousness or sneakiness by the photographer, who has ensured the breasts and pubic hair are always captured.
47. The Board therefore determines that the images with the face not visible, or partially visible, are objectionable because they describe, depict, or otherwise deals with sex in such a manner that the availability of the images is likely to be injurious to the public good for the reasons discussed.
    
48. Classification of the images with the face not visible, or only partially visible, as objectionable is a reasonable limit on the section 14 BORA right to freedom of expression which is demonstrably justified in a free and democratic society
    

VIDEO

Should the video be deemed objectionable?

49. Again, the Board considers that the video does not meet this high section 3(2) threshold. There is nothing about the video which promotes or supports, or tends to promote or support, the exploitation of young persons for sexual purposes (i.e. section 3(2)(a), the only relevant clause in section 3(2)).

Does the image come within section 3(3) taking account of section 3(4)?

50. The same reasoning that the Board applied to the ten images applies to the video in respect of the section 3(3) and 3(4) factors. The Board notes that there appears to be no inhibition or embarrassment on the part of the young person, as she chats away to the person holding the camera, suggesting she may be oblivious to being filmed.

51. The person filming can be heard breathing heavily on occasion, as well as instructing the young person when to dry herself. There is an inappropriate level of intimacy in the young person’s actions and the camera operator (a mature male as evidenced by his voice) continues to focus on her naked body at all times.
    
52. The Board therefore determines that the video is objectionable because it describes, depicts, or otherwise deals with sex in such a manner that the availability of the image is likely to be injurious to the public good. It is injurious to the public good for the reasons already discussed above with respect to the images. In the Board’s view, the availability of the video sends a message to young women that this is how they should react to males, that there is no space in which they can expect privacy, and that they have no agency over their own bodies (shown by the male camera operator’s instructions to the young woman when to dry herself). An equivalent message would be received by some male viewers, thereby normalising sexual dominance.
    
53. Classification of the video as objectionable is a reasonable limit on the section 14 BORA right to freedom of expression which is demonstrably justified in a free and democratic society.
    
54. 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 28th day of May 2021

Rachael Schmidt-McCleave
President

SCHEDULE: STATUTORY PROVISIONS

FILMS, VIDEOS, AND PUBLICATIONS CLASSIFICATION ACT 1993

3Meaning of objectionable

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

(1A) Without limiting subsection (1), a publication deals with a matter such as sex for the purposes of that subsection if –

(a) the publication is or contains 1 or more visual images of 1 or more children or young persons who are nude or partially nude; and
(b) those 1 or more visual images are, alone, or together with any other contents of the publication, reasonably capable of being regarded as sexual in nature.

(1B) Subsection (1A) is for the avoidance of doubt.

(2) A publication shall be deemed to be objectionable for the purposes of this Act if the publication promotes or supports, or tends to promote or support, -
(a) the exploitation of children, or young persons, or both, for sexual purposes; or
(b) the use of violence or coercion to compel any person to participate in, or submit to, sexual conduct; or
(c) sexual conduct with or upon the body of a dead person; or
(d) the use of urine or excrement in association with degrading or dehumanising conduct or sexual conduct; or
(e) bestiality; or
(f) acts of torture or the infliction of extreme violence or extreme cruelty.
(3) In determining, for the purposes of this Act, whether or not any publication (other than a publication to which subsection (2) applies) is objectionable or should in accordance with section 23(2) be given a classification other than objectionable, particular weight shall be given to the extent and degree to which, and the manner in which, the publication—
(a) describes, depicts, or otherwise deals with—

• (i) acts of torture, the infliction of serious physical harm, or acts of significant cruelty:
• (ii) sexual violence or sexual coercion, or violence or coercion in association with sexual conduct:
• (iii) other sexual or physical conduct of a degrading or dehumanising or demeaning nature:

• (iv) sexual conduct with or by children, or young persons, or both:
  • (v) physical conduct in which sexual satisfaction is derived from inflicting or suffering cruelty or pain:

(b) exploits the nudity of children, or young persons, or both:

• (c) degrades or dehumanises or demeans any person:

(d) promotes or encourages criminal acts or acts of terrorism:
(e) represents (whether directly or by implication) that members of any particular class of the public are inherently inferior to other members of the public by reason of any characteristic of members of that class, being a characteristic that is a prohibited ground of discrimination specified in section 21(1) of the Human Rights Act 1993.
(4) In determining, for the purposes of this Act, whether or not any publication (other than a publication to which subsection (2) applies) is objectionable or should in accordance with section 23(2) be given a classification other than objectionable, the following matters shall also be considered:
(a) the dominant effect of the publication as a whole:
(b) the impact of the medium in which the publication is presented:
(c) the character of the publication, including any merit, value, or importance that the publication has in relation to literary, artistic, social, cultural, educational, scientific, or other matters:
(d) the persons, classes of persons, or age groups of the persons to whom the publication is intended or is likely to be made available:
(e) the purpose for which the publication is intended to be used:
(f) any other relevant circumstances relating to the intended or likely use of the publication.

FILM AND LITERATURE BOARD OF REVIEW SUMMARY DECISION

1. This was an application made to the Board under section 47 of the Films, Videos and Publications Classification Act 1993 (the Act) by , for a review of the decision of the Classification Office dated 25 November 2020.
   
2. The publications subject to this review are ten image files (together, “the images”) and one video. Each of the images, and the video, was considered separately by the Board. All of the images depict the same girl, standing naked in a bathtub, and facing the camera directly or at a slight angle. Her naked breasts and pubic area are evident in all the images. The images appear to have been taken by someone from the doorway of the bathroom. The video is 46 seconds long and depicts what appears to be the same girl as in the images getting out of the shower naked and drying herself. The girl does not appear to be aware she is being filmed, as she is very relaxed and is chatting away to the person filming (a male, discerned from his voice).
   
3. In its decision, the Classification Office classified each of the images, and the video, as objectionable under the Act.
   
4. The applicant sought a review of that decision.
   
5. After reading submissions from the applicant, the Classification Office and the New Zealand Police, and reviewing the images, and the video, the Board has determined that each of the images, and the video, should be classified as objectionable under the Act.
   
6. The Board determined each of the images, and the video, to be objectionable because they describe, depict, express or otherwise deal with sex in such a manner that its availability is likely to be injurious to the public good (section 3(1), applying the factors set out in section 3(3) and 3(4)), because they send the message that it is acceptable for young persons to show their naked bodies in this

way in a place which is usually expected and accepted to be a private setting. The Board considers that to have such images potentially circulating in the digital sphere reinforces the message that society accepts that young persons may be photographed nude, with or without their knowledge, when they are committing a private act, such as bathing or showering. The Board is of the view that such an attitude to young person’s nudity is exploitative of that nudity and is injurious to the public good.

7. Classification of the images as objectionable is a reasonable limit on the section 14 BORA right to freedom of expression which is demonstrably justified in a free and democratic society.