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Video and 39 Images (hentai style) [2021] NZFLBR 6 (10 September 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 in Wellington (and remotely where indicated) on 14 June 2021, and remotely via email after receiving translations relating to certain of the documents, to consider this application for review:
   

Ms Schmidt-McCleave (President) Mr N Dunlop (Deputy President) Dr T Brown

Ms S Gill

Dr M Waitoki (remotely via Zoom)

2. The publications which are the subject of this review comprise:
   
   1. Several colourful, sexually explicit illustrations in the Japanese “hentai”1 style. Hentai is a genre of Japanese manga2 and anime3 characterised by overtly sexualised characters and sexually explicit images and plots (the “hentai publications”). There are eleven publications in this category, namely (using the Te Mana Whakaatu Classification Office (“Classification Office”) references), OFLC 2000307.000; OFLC 2000307.001; OFLC 20003007.002; 2000307.003; OFLC 200307.004; OFLC 200307.005; OFLC 2000307.006; OFLC 20003.007; OFLC 2000307.011; OFLC 2000307.015; OFLC 2000307.016.
      
   2. Several computer-generated imagery (“CGI”)4 publications, incorporating real images with cartoon drawings in sexually explicit poses and positions.
      

1 “Hentai” is defined in the Oxford online dictionary as “a subgenre of the Japanese genres of manga and anime, characterised by overtly sexualised characters and sexually explicit images and plots.”

2 “Manga” is defined in the Oxford online dictionary as “a Japanese style of comic strip, which may be aimed at either adults or children”.

3 “Anime” is defined in the Oxford online dictionary as “Japanese movie and television animation, often with a science fiction subject.”

4 “CGI” is defined in the Oxford online dictionary as “computer generated imagery (special visual effects created using computer software)”. It often employs actual imagery and is used in anime often for reasons of cost-effectiveness: for example, see https://animehunch.com/2021/03/19/what-is-cgi-in-anime-why-is- it-used-is-it-good-or-bad/

There are three publications in this category, namely OFLC 2003007.008; OFLC 2000307.009; OFLC 2000307.010.

100. Several comic panels depicting cartoon and comic-book characters, including well-known ones, engaged in sexual behaviour, and including speech bubbles (the “comic panel publications”). There are fifteen publications in this category, namely OFLC 2000307.012; OFLC

2000307.027; OFLC 2000307.028.

4. Several photographs depicting children and/or young persons naked or in sexual poses, or depicting genitalia (the “photographs”). There are ten publications in this category, namely OFLC 2000307.031; OFLC 2000307.032; OFLC 2000307.033; OFLC 2000307.034; OFLC 2000307.035; OFLC 2000307.037; OFLC 2000307.038; OFLC 200307.039; OFLC 2000307.040; OFLC2000307.036.
   
5. One 3-4 second video clip in Japanese anime style, namely OFLC 2000307.041 (the “video publication”).
   

3. All of the publications were part of an original batch of 42 publications that were submitted by the Police to the Classification Office for classification. On 26 November 2020, the Classification Office classified five of the publications as R18 and the remainder as objectionable. The applicant sought review of classification of 40 of the publications: 3 of the R18 publications, and 37 of the objectionable publications.
   
4. On review, the Classification Office filed two sets of separate submissions. One submission addressed the 37 publications classified as objectionable, and the other submission addressed the 3 publications classified as R18. Because this Board is required by the Act to re-examine each publication without regard to the

Classification Office’s decision,5 the Board in this decision has not separated out the publications in the same manner, although the Classification Office’s separate submissions are summarised below.

5. Because of the number of publications involved in this review however, the Board has considered each publication within the five “categories” of publication identified above (“Hentai” publications, “CGI” publications, “comic panel” publications, “photographs”, and the “video”). For the avoidance of doubt, the Board has considered each publication on its own as it is required to do but has grouped the publications in this manner, due to some of the same considerations applying to each publication within a category of publication.
   
6. Specified persons dissatisfied with any decision of the Classification Office with respect to the classification of any publication are entitled, either as of right or with the leave of the Secretary for Internal Affairs (the “Secretary”), to have the publication reviewed by the Board6.
   
7. The applicant applied to have the publications reviewed. The applicant initially applied using the wrong section of the Act. After various exchanges with the Secretary, the applicant eventually correctly applied under section 47(2)(d) of the Act.
   
8. The Board was required to conduct a review as soon as practicable, to examine the publications, and to determine their respective classifications7. There are three possible classifications: unrestricted or objectionable or objectionable except in one or more specified circumstances.8
   
9. The question of whether a publication is objectionable is a matter for the expert judgement of the Board, and evidence as to, or proof of any of the matters the Board is required to consider is not essential to its determination.9
   

5 Section 52(2).

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

7 Section 52

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

9 Section 4.

10. The applicant does not have the right to appear before the Board but does have the right to make submissions to it.10 The applicant elected not to provide any submissions to the Board. The Board has the power to invite submissions from the Classification Office.11 It made that invitation and submissions were received.
    
11. Under section 54(1) of the Act, the Board has the same power as the Classification Office to, inter alia, obtain information from another body. The Board elected to utilise that power in order to obtain from translators employed by the Department of Internal Affairs (“DIA”), translations of the Japanese phrases apparent in publications OFLC 2000307.001; OFLC 2000307.015; OFLC 2000307.016; and OFLC 2000307.017. To enable this translation to occur, the translators were provided only with those snippets of the images involved which contained the phrases.
    
12. Translations of those phrases were duly received from the DIA translators, and due consideration given by the Board to the translations where appropriate in relation to the publications to which they were related. These are discussed in detail below but, for the avoidance of doubt, the Board records here that the translations provided made no difference to the classification decisions the Board would have made without the translations. The Board also acknowledges the overall caveats on the translations given by the translators, including that the extracts provided were only on the words themselves and without context which would be given by the full image, and that the words in the extracts were mainly of the onomatopoeia type, portraying sounds, and could therefore be interpreted in different ways depending on the situation they were used in.
    

THE KEY LEGAL CONSIDERATIONS

13. Key legislative provisions referred to are set out in the schedule to this decision and are summarised below.
    

10 Section 53(1).

11 Section 54(1).

14. 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. This is the gateway analysis for the Board and, if the consideration results in a negative answer, then the Board is required to classify the publication as unrestricted.12
    
15. If the gateway analysis results in an affirmative answer, however, then the next consideration for the Board is whether the publication is likely to be injurious to the public good.13
    
16. This analysis first 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,14 which emphasised the high threshold to be overcome for the provision to apply, citing the importance of freedom of expression. The Court of Appeal
    

12 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.

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

emphasised that description and depiction of a prohibited activity do not of themselves necessarily amount to promotion or support of that activity.

17. If the Board decides that it must deem the publication to be objectionable for the purposes of the Act, then it need not consider the publication any further. It must classify the publication as objectionable.
    
18. If the Board decides that the publication is not deemed by the Act to be objectionable, then it must determine whether the publication is objectionable, or should be given one of the other 2 possible classifications (unrestricted, or objectionable except in specified circumstances).
    
19. 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

20. As stated, the applicant elected not to provide the Board with any submissions.
    
21. The Classification Office, in the person of the Chief Censor, provided two sets of submissions, the first covering the publications classified as objectionable, and the second covering those classified as R18. For the avoidance of doubt, the Board agrees with the submissions of the Classification Office below as to the Act potentially applying even when images not depicting real people are involved.
    
22. With respect to the publications classified as objectionable, the Classification Office submitted that (in summary):
    
    1. The Classification Office has classified as objectionable numerous images which do not appear to depict real people. As directed by the Court of Appeal in Moonen 1, the key consideration is the issue of promotion or support of the exploitation of young persons for sexual purposes and “whether or not it

[a publication] depicts underage models, no underage models or no models at all is irrelevant to the proper application of section 3(2)(a)[of the Act]”.15

2. That New Zealand law allows for the likelihood of harm from publications such as these to be taken into account when deciding on objectionability is in contrast to many other countries. While the harms to younger audiences from accessing pornography are widely accepted across a number of countries, there is a perception that material which does not depict apparently real people is unlikely to be harmful, even if its purpose is overtly sexual, as in the case of hentai and lolicon.16 However, the Classification Office notes, this material is the subject of increasing international debate, and the Office provided copies of articles which demonstrate that in Australia and the United Kingdom, there is growing recognition of the potential for harm arising from the availability of this material, while in the United States, a variety of different laws apply in this area.17
   

100. Although real children were not victimised during the creation of the material under review (and, in this regard, the Board notes that some of the material does in fact involve real children), the Classification Office considers that there is a real likelihood of injury to the public good from the unrestricted availability of material like this.
     

4. After considering the gateway test, and submitting that each of the publications deals with a matter of sex, and of children or young persons (regardless of whether the publications depict real people), the Classification Office sets out its reasoning for why it considers a number of the publications promote or support, or tend to promote or support the exploitation of children or young persons for sexual purposes and ought to be deemed
   

15 Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9 at para 29.

16 The Classification Office submissions advise (at footnote 4) that “lolicon” is”[a] Japanese term derived from the English phrase ‘Lolita complex’ [and] describes a fascination with cartoons of very young- looking girls engaged in varying degrees of erotic behaviour.”

17 The Board confirms it has read this information carefully but did not need to rely upon it in order to reach the classification decisions the Board was able to reach on the face of the publications.

objectionable.18 The publications have the effect of trivialising and eroding social taboos related to the sexual exploitation of young people, and the perception that the publications are simply ‘innocent fun’ may amplify the potential harms by encouraging their distribution to a wider audience, and grooming young people for sexual exploitation.

5. While the public has the right to access material that offers humour and sexual stimulation, this right does not extend to material that meets the Act’s threshold of objectionability.
   
6. The Classification Office’s reasons include that:
   
   1. The publications contain purposefully drawn representations of children or young people that include sexually provocative posing and a focus on exaggerated presentations that sexualise physical immaturity to salacious effect.
      

2. The publications that depict apparently real people unequivocally promote and support the exploitation of children or young persons for sexual purposes. Some involve contrived situations with high likelihood of adult involvement behind the scenes.
   
3. Those publications that do not depict sexual activity have a tone tending to promote and support the idea that young girls are appropriate subjects for adult sexual fantasy by presenting their youthful characteristics in a highly voyeuristic and sexualised way.
   
   4. Cartoon images depicting young people performing sexual acts on themselves or with others normalise the idea that young people are sexually active and aware, which has the effect of sexualising young people more generally.
      

18 Because the Board is required by the Act to consider each publication afresh, the Board does not here refer to the actual publications the Classification Office considers should be deemed objectionable but, rather, summarises the Classification Office’s reasons for a deeming consideration.

5. The hentai, comic book, or CGI publications that depict men involving children or young people in sex are specifically created to amuse and titillate adults with a sexual interest in young people, which has the effect of trivialising and normalising the sexualisation of young people.
   
6. Images which tend to promote and support the use of urine in association with sexual or degrading conduct normalises it as entertaining and titillating.
   

g. Others of the publications the Classification Office submitted ought to be

determined rather than deemed objectionable because:

1. While some of the images have an exploitative tone, and exploit the nudity of children to a high degree, their content is not enough to promote or support or to tend to promote or support the exploitation of children for sexual purposes needed for a deeming decision.
   
2. While the comic panels involving well-known cartoon characters engaging in sexual activity may be likely to be perceived by many viewers as offensive or in bad taste, some are likely to find them amusing, including those who are not sexually interested in children. The intended purpose of these publications is likely to be well beyond mere arousal, and will likely include risqué amusement. Nonetheless, the purpose and impact of the publications goes further than innocent entertainment, whether intentional or not. They are explicit sexual parodies which sexualise their young subjects to a high extent and degree in a manner that is likely to have harmful effects. They are also likely to hold some sexual appeal to viewers with a prurient interest in children or young teens. The incest implied in them adds a further taboo element to their sexual appeal.
   

8. An objectionable classification interferes with the right to freedom of expression as set out in section 14 of the New Zealand Bill of Rights Act

1990 (“BORA”). However, with regard to those publications that fall within section 3(2)(a) of the Act, this outcome is consistent with Parliament’s intention that publications which promote and support the exploitation of children or young persons be deemed objectionable. With regard to those publications that fall under section 3(3) of the Act, likelihood of injury cannot be adequately prevented by an age restriction. Therefore, the objectionable classification is reasonable and demonstrably justified in order to prevent injury to the public good.

23. With respect to the publications classified by the Classification Office as R18, it submitted that, in summary, two of the images concerned do not unequivocally depict children or young persons. However, they are likely to be injurious to the public good as society perceives harm to children and teenagers from being exposed to explicit sexual material before they are developmentally ready to process it. The third image in this category, while dealing with violence and coercion, can have the likelihood of injury to the public good mitigated by restricting its availability to adults, as can the other two images.
    
24. While restriction to adults limits the BORA right to freedom of expression, it is a reasonable limitation on that right in order to prevent injury to the public good.
    

ANALYSIS – HENTAI PUBLICATIONS

25. The first set of publications considered by the Board are the hentai publications:
    
    1. OFLC 2000307.000 depicts a drawing of a female standing in a partial side- on pose against a black background. The female has long blonde hair and big blue eyes characteristic of the manga style. Her mouth is partially open and her breasts, and hairless crotch area are partly visible.

The Board considered this to be a typical manga drawing with the age of the female not able to be readily distinguished

2. OFLC 2000307.001 is a drawing of a sleeping child on her back with her arms raised by her side on a bed. Her legs are splayed and she appears to

have wet herself, with liquid shown to be coming out of the cleft in her pubic area. There is a plate of eaten watermelon slices on a table next to her, and a Japanese phrase is drawn across her left leg (translation provided that it is the sound of ejaculation).

The Board considered this child to be between the ages of 4-6 years of age.

100. OFLC 2000307.002 depicts a drawing of a blonde-haired female child lying on her back on a bed sucking her thumb with her legs splayed, fingering her vaginal area through her underwear (but with the cleft of her genital area visible). There is fluid of some description (urine or semen) flowing between her legs and onto the bed and splashed across her inner thighs.

Although there is some minimal breast development depicted, the Board considered the subject to clearly be a child, again between the ages of 4-6 years.

4. OFLC 2000307.003 is a drawing of an older child, naked except for long black stockings and headphones, and crouching over a large dildo inserted into her vagina (the focus of the drawing). The child is depicted in a girl’s bedroom, shown by the pink furniture and accessories around her.

The Board considered this picture to be of an older, likely pre-teen child.

5. OFLC 2000307.004 is a manga drawing of a side-on child’s face. In the middle of the picture, the girl’s hand is gripping the end of the shaft of a penis, and she is holding the head of the penis against her lips.

The Board considered this picture to be of a child, between the ages of 4-6 years of age.

6. OFLC 2000307.005 is a drawing of a child young with her back to the artist, but her face turned with one eye shut and tears coming out of her other eye. She is straddling a male with her buttocks over his genital area and his adult forearms and hands grasping her buttock cheeks. A white liquid is visible where the bodies meet.

The Board considered this picture to be of a child, between the ages of 4-6 years of age.

7. OFLC 2000307.006 is a drawing of a human hand holding a naked winged fairy with the muscly, well-proportioned body of an adult woman (including with adult breasts) but the face of a crying teenager. The other human hand is inserting a rod into the fairy’s vagina, and liquid can be seen emitting from the vagina.
8. OFLC 200307.007 is a drawing of four girls crouched over a paddling pool in togs and urinating into the pool, where a fifth girl can be seen under the water with her eyes closed.

The Board considered the age of these girls to be between 8-12 years.

1. OFLC 2000307.011 is a drawing of a pigtailed girl with one eye closed facing the artist with her hands on a man’s stomach and the end of a thick, brown object in her mouth. The girl has droplets of liquid over her face.

The Board considered the age of this girl to be less than 10 years, but the majority of the Board considered the object depicted was too ambiguous to be considered definitively a penis.

10. OFLC 2000307.015 is a drawing of a partially naked girl facing the artist with her mouth open and eyes closed, and droplets of liquid on her face and body. The lower half of a clothed man is depicted under her with his penis inserted into her anus, and her vaginal region clearly depicted above, with a large amount of fluid coming out. There are a number of Japanese phrases on the drawing, with the translations sought by the Board stating they are intended to convey romantic sensations, sensations of stimulation, the initial stages of climax, and climax.

The Board considered the age of this girl to be an older child or young teenager.

11. OFLC 2000307.016 shows the same young teenager as in .015, with a series of panels showing her engaged in anal intercourse, and a penis ejaculating. Again, there are Japanese phrases sprinkled through the panels, with the translations sought by the Board stating they are intended to convey romantic

sensations, sensations of stimulation, the initial stages of climax, climax, withdrawal and ejaculation.

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

26. Except for OFLC 20000307.000 and OFLC 2000307.011, the Board considers all the hentai publications pass through the section 3(1) gateway test, as they deal with the matter of sex.
27. The Board notes that section 3(1A) provides that 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.
28. The Board considers that section 3(1A) therefore applies to bring the hentai publications OFLC 2000307.001, OFLC 2000307.002, OFLC 2000307.003, OFLC 2000307.005, OFLC 2000307.006, OFLC 2000307.015 and OFLC 2000307.016 through the section 3(1) gateway.
29. OFLC2000307.004 and OFLC 200307.007 do not show a naked or partially naked child or young person but do depict children or young persons engaged in sexual activity, so pass through the section 3(1) gateway in this manner.
30. OFLC 2000307.000 does not, in the Board’s view, pass through the section 3(1) gateway for further consideration. The female depicted is not obviously a child or young person and, arguably, could be an older teen or young adult.
31. Likewise, the majority of the Board considered that OFLC 2000307.011 was too ambiguous to be able to definitely say that it depicted a child or young person engaged in sexual activity.

32. The Board therefore classifies OFLC 2000307.000 as unrestricted and does not consider it further in this decision. The majority of the Board also classifies OFLC 2000307.011 as unrestricted, and it is not considered further in this decision.19

Should the remaining hentai publications be deemed objectionable?

33. Given the affirmative answer to the previous question for the hentai publications except OFLC 2000307.000 and OFLC 2000307.011, the next practical issue for the Board to consider is whether the remaining 9 hentai publications should be deemed objectionable pursuant to section 3(2).
34. As already described, the deeming provision is a high threshold. The Board must be mindful that, in applying section 3(2), it must act consistently with section 14 of BORA. In particular, the Court of Appeal in the Moonen decisions has emphasised that description and depiction of a prohibited activity do not of themselves necessarily amount to promotion or support of that activity.
    
35. The Board considers that the remaining 9 hentai publications do not promote or support, or tend to promote or support, the exploitation of children or young persons for sexual purposes, such that they ought to be deemed objectionable.
    
36. This is not in any way intended to convey that the Board condoned the images. They are offensive, and they depict children and young persons engaged in sexual activities that are not appropriate for their age and development. The Board agrees with the Classification Office that the fact that the 9 hentai publications are drawings of children and young people, does not detract from the impact, or the potentially titillating effect, they may have on those in society with a sexual interest in young girls. This is detrimental to the public good as it serves to normalise and trivialise sexual conduct with children and young persons, and the publications could potentially be used by predators to groom children and young persons for sexual exploitation.
    
37. However, the Board considers that there is nothing about the publications themselves that promote or support, or tend to promote or support, the sexual exploitation of
    

19 A minority of the Board considered OFLC 2000307.011-0000002_Carved to be objectionable.

children and young persons such that they should be deemed objectionable. The images are just that; images, and the insidious use to which they may potentially be put is a consideration for the Board not under section 3(2) but rather under section 3(3) when it is determining objectionability.

38. The Board therefore declines to deem publications OFLC 2000307.001; OFLC 20003007.002; OFLC 2000307.003; OFLC 200307.004; OFLC 200307.005; OFLC 2000307.006; OFLC 20003.007; OFLC 2000307.015; and OFLC 2000307.016 objectionable.
    

Should the publications be determined objectionable?

39. The next stage in the Board’s analysis, therefore, is to decide whether to determine

the publications objectionable under section 3(3) and (4).

40. The Board does determine publications OFLC 2000307.001; OFLC 20003007.002; OFLC 2000307.003; OFLC 200307.004; OFLC 200307.005; OFLC 2000307.006; OFLC 20003.007; OFLC 2000307.015; and OFLC 2000307.016 to be objectionable.

41. In terms of section 3(3), OFLC 2000307.001, OFLC 20003007.002, OFLC

2000307.003, OFLC 200307.004, OFLC 200307.005, OFLC 20003.007, OFLC

2000307.015 and OFLC 2000307.016:

1. Depict sexual or physical conduct of a degrading or dehumanising or demeaning nature (section 3(3)(a)(iii)).
2. Depict sexual conduct with or by children, or young persons, or both (section 3(3)(a)(iv)).

100. Exploit the nudity of children or young persons (section 3(3)(b)).
     

4. Degrade or dehumanise or demean the child and young people (section 3(3)(c)).

42. These images listed in paragraph 41 all depict children and young persons in sexual or dehumanising activity, which children and young persons of their perceived ages ought not to be participating in due to lack of sexual maturity and physical and

emotional development. All these images show the young people in degrading positions and poses, and there can be no other perceived explanation for the images but adult sexual gratification. The images contain a focus on the genital areas and on the sexual or degrading activity taking place.

43. While the Board considers that the female depicted in OFLC 2000307.006 cannot be regarded as a young person, the Board nonetheless determines OFLC 2000307.006 to be objectionable. The Board does not consider that the fact that the woman shown in the image is depicted as a fairy, and therefore a creature of fantasy, makes any difference to the Board’s consideration of the section 3(3) factors. The figure is clearly a female, and she is portrayed in an extremely helpless and vulnerable manner, as if she has lost the ability to give consent and is a mere toy or plaything of the person holding her.
44. The Board therefore considers that the publication:
    
    1. Depicts an act of torture, the infliction of serious physical harm, or an act of significant cruelty in the way the rod is being shoved into the fairy’s vagina with the fairy’s face showing tears of agony (section 3(3)(a)(i)).
    2. Depicts sexual violence in the way the rod is being shoved into the fairy’s vagina with the fairy’s face showing tears of agony (section 3(3)(a)(ii)).
    100. Depicts other sexual conduct of a degrading or dehumanising nature (section 3(3)(a)(iii)).
    4. Depicts physical conduct in which sexual satisfaction is derived from inflicting cruelty or pain (section 3(3)(a)(v)).
    5. Degrades or dehumanises the person shown (section 3(3)(c)).
       
45. Regarding the section 3(4) matters the Board is required to consider:
    
    1. The dominant effects of each of the hentai publications in this category are discussed above.
    2. The medium of the publications is the hentai, manga genre. This genre is extremely popular both in Japan, and increasingly in the Western world as a whole, and its use in the manner described above to portray degrading and

dehumanising images of children, young persons, and females has a powerful impact.

100. There is no character to any of the publications considered from a literary, artistic, social, cultural, educational, scientific or other point of view.

4. The Board has no evidence or information before it about the persons to whom the publications are intended or likely to be made available, the purpose for which the publications are intended to be used, or any other information about the intended or likely use of the publications. However, it notes that if the publications were able to be easily accessed and disseminated, an inference can be drawn that, while some may view them as amusing or entertaining, others may put them to a more predatory and insidious use, in fantasising about rape or the sexual abuse of minors, or even using the publications to groom young persons.

46. In terms of section 3(1), in summary therefore, the Board considers the availability of publications OFLC 2000307.001; OFLC 20003007.002; OFLC 2000307.003; OFLC 200307.004; OFLC 200307.005; OFLC 2000307.006; OFLC 20003.007; OFLC 2000307.015; and OFLC 2000307.016 is likely to be injurious to the public good, because they:
    1. present children or young persons engaging in sexual activity in an adult way akin to pornography, in a manner that normalises such activity and has the potential to encourage the notion within broader society that children and young persons are appropriate subjects for sexual arousal; or
    2. present adult females in a fantasy way in positions of reduced control and consent, which sends a message that it is acceptable to portray women in this manner, even if in the guise of fantasy.
47. The Board recognises that an objectionable classification interferes with the section 14 BORA right to freedom of expression but considers that the likelihood of injury to the public good in the way articulated above cannot be ameliorated by an age restriction and, accordingly, the objectionable classification is a reasonable and demonstrably justified limitation to the section 14 BORA right.

ANALYSIS – CGI PUBLICATIONS

48. The second set of publications considered by the Board are the CGI publications:
    
    1. OFLC 2000307.008 shows a photograph of an unidentifiable clothed male, with his face pixellated and turned in profile. Sitting on his lap with her legs splayed to reveal her genitalia is a drawing of a naked young girl with a disinterested expression on her face.

The majority of the Board considered the child to be of pre-teen age.

2. OFLC 2000307.009 shows the same photographed man with the pixellated face, now facing the camera directly and holding open the same naked body as previously, but this time without the head.

100. OFLC 2000307.010 is the same image as in 48.b. but this time the man’s penis is poking out of his trousers and a substance appearing to resemble semen is pouring from the headless girl’s body and on the splayed inner thighs and over the man’s penis.
     

Do the CGI publications describe, depict, express or otherwise deal with matters such as sex, horror, crime, cruelty or violence?

49. The Board considers all the CGI publications pass through the section 3(1) gateway test, as they deal with the matter of sex.
50. The Board notes that section 3(1A) provides that 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.
51. The majority of the Board considers that section 3(1A) therefore applies to bring the CGI publications through the section 3(1) gateway.

Should the CGI publications be deemed objectionable?

52. Given the affirmative answer to the previous question, the next practical issue for the Board to consider is whether the publications should be deemed objectionable pursuant to section 3(2).
53. Again, as already described, the deeming provision is a high threshold. The Board must be mindful that, in applying section 3(2), it must act consistently with section 14 of BORA. In particular, the Court of Appeal in the Moonen decisions has emphasised that description and depiction of a prohibited activity do not of themselves necessarily amount to promotion or support of that activity.
    
54. The Board considers that the CGI publications do not promote or support, or tend to promote or support ,the exploitation of children or young persons for sexual purposes, such that they ought to be deemed objectionable.
    
55. The Board considers that there is nothing about the CGI publications themselves that promote or support, or tend to promote or support, the sexual exploitation of children and young persons such that they should be deemed objectionable. The images may potentially be put to nefarious use, and that is a consideration for the Board under section 3(3) when it is determining objectionability, but there is nothing about the CGI publications per se which ought to deem them objectionable.
    
56. The Board therefore declines to deem publications OFLC 2000307.008, OFLC 2000307.009 and OFLC 2000307.010 objectionable.
    

Should the CGI publications be determined objectionable?

57. The next stage in the Board’s analysis, therefore, is to decide whether to determine

the publications objectionable under section 3(3) and (4).

58. The majority of the Board with respect to the publications at paragraph 59, and the entire Board with respect to the publication at paragraph 61, consider the CGI publications to portray children and young persons as sexual objects or vessels, therefore for the use and titillation of the adult involved. There is a prominence given in all three images to the young person’s genitalia, in a way likely to appeal to those in society with a sexual interest in young girls. The removal of the young girl’s head

from two of the images further dehumanises and demeans her, and reduces her to a mere sexual receptacle.

59. The majority of the Board determines publications OFLC 2000307.008 and OFLC 2000307.009 to be objectionable because they:
    1. Exploit the nudity of children or young persons (section 3(3)(b)).
       
    2. Degrade or dehumanise or demean the young person depicted (section 3(3)(c)).
       
60. A minority of the Board did not consider publications OFLC 2000307.008 and OFLC 2000307.009 to be objectionable for the reason that Board member considered both images to be a simple portrayal of a naked form, with no exploitative factors to make their availability to be injurious to the public good.
    
61. The entire Board, however, determines OFLC 2000307.010 to be objectionable because it:
    
    1. Depicts sexual conduct with or by children or young persons (section 3(3)(a)(iv)).
       
    2. Exploits the nudity of children or young persons (section 3(3)(b)).
       
    100. Degrades or dehumanises or demeans the person depicted (section 3(3)(c)).
         
62. Regarding the section 3(4) matters the Board is required to consider:
    
    5. The dominant effects of each of the CGI publications in this category are discussed above.
    6. The medium of the publications is the CGI manga. This genre is extremely popular both in Japan, and increasingly in the Western world as a whole, and its use in the manner described above to portray degrading and dehumanising images of children, young persons, and females can have a powerful impact. By stitching in real photographs to the manga drawings enhances that impact by increasing the reality of the image.

7. There is no character to any of the publications considered from a literary, artistic, social, cultural, educational, scientific or other point of view.
8. The Board has no evidence or information before it about the persons to whom the publications are intended or likely to be made available, the purpose for which the publications are intended to be used, or any other information about the intended or likely use of the publications. However, it notes that if the publications were able to be easily accessed and disseminated, an inference can be drawn that, while some may view them as amusing or entertaining, others may put them to a more predatory and insidious use, in fantasising about the sexual abuse of minors, or even using the publications to groom young persons.

63. In terms of section 3(1), in summary therefore, the majority of the Board considers the availability of publications OFLC 2000307.008 and OFLC 2000307.009, and the entire Board considers the availability of the publication OFLC 2000307.010 likely to be injurious to the public good, because they present children or young persons engaging in sexual activity in an adult way akin to pornography, in a manner that normalises such activity and has the potential to encourage the notion within broader society that children and young persons are appropriate subjects for sexual arousal.
64. For OFLC 2000307.010, the Board recognises that an objectionable classification interferes with the section 14 BORA right to freedom of expression, but considers that the likelihood of injury to the public good in the way articulated above cannot be ameliorated by an age restriction and, accordingly, the objectionable classification is a reasonable and demonstrably justified limitation to the section 14 BORA right. The majority of the Board considers the same with respect to publications OFLC 2000307.008 and OFLC 2000307.009, but a minority of the Board considered those two latter publications ought to be unrestricted.

ANALYSIS – COMIC PANEL PUBLICATIONS

65. The third set of publications considered by the Board are the Comic Panel publications:
    1. OFLC 2000307.012 is a panel featuring well-known Nickelodeon characters 13 year old Lynn Loud Jr and her 11 year old brother Lincoln Loud, from the cartoon show, The Loud House, engaging in intercourse from the rear, and

voice bubbles illustrating Lincoln’s disappointment that Lynn is not enjoying the “hard sex”.

2. OFLC 2000307.013 is another panel showing Lynn and Lincoln having sex, with the final panel showing semen flowing from Lynn’s vagina.

100. OFLC 2000307.014 is a panel showing Lincoln and Lynn engaged in masturbation.

4. OFLC 2000307.017 is a panel featuring well-known cartoon character 10 year old Ben10, and his 10 year old cousin, Gwen, engaging in sexual activity with Ben10 performing cunnilingus and vaginal digital penetration on Gwen, and speech bubbles signifying her enjoyment. Along the bottom of the panel is written “Unofficial R34 parody” with a link to what is presumably the artist’s website.
5. OFLC 2000307.018 is another panel depicting Ben10 and Gwen, this time showing Ben exploring Gwen’s genital area with speech bubbles of a conversation between the pair of what Ben is going to do to Gwen. The same words and link as in the earlier publication run along the bottom of the panel.
6. OFLC 2000307.019 is a comic panel featuring 4 year old Angelica Pickles and father, Drew, from the Rugrats cartoon show, engaging in various sexual acts.
7. OFLC 2000307.020 is a comic panel showing Drew performing anal intercourse on Angelica, with speech bubbles of conversation between the pair making clear they are father and daughter.
8. OFLC 2000307.021 is a comic panel showing Drew coming home to Angelica alone, Angelica fondling her father’s penis and the pair kissing on the lips and Angelica asking “Daddy, Daddy, can you do that thing again for me?”
9. OFLC 2000307.022 is a panel showing Drew and Angelica in various acts of intercourse, with speech bubbles of conversation between the pair making clear they are father and daughter.

10. OFLC 2000307.023 is a panel featuring a young girl, Beth, who is introduced by Elsa from the children’s movie, Frozen. Beth is explained to be looking for a new daddy and is shown looking at a number of erect penises and then performing fellatio on a man with choking sound effects in speech bubbles.
11. OFLC 2000307.024 is a panel showing Beth being groped and then engaging in sexual and anal intercourse while asking the man not to make it too traumatic. Elsa appears in the panel again, making comments.

50. OFLC 2000307.025 is a panel showing Beth having sex with a man. Elsa again appears giving commentary, and the final panel depicts Beth sitting on a bed with her legs splayed, and semen running from her vagina, with the words “I’m over 5 now, all grown.”

13. OFLC 2000307.026 is identical to panel .025 above, except there are two new panels added, showing a new show hosted by Elsa called “Six and Pregnant” and showing Beth naked and visibly pregnant.
14. OFLC 2000307.027 shows a boy resembling the well-known comic book character Sport Billy in a panel culminating in him having sex with a younger girl, possibly his sister.
15. OFLC 2000307.028 is a panel showing the same children as in 0.27 engaging in sexual intercourse.
    

Do the comic panel publications describe, depict, express or otherwise deal with matters such as sex, horror, crime, cruelty or violence?

66. The Board considers all the comic panel publications pass through the section 3(1) gateway test, as they all clearly deal with the matter of sex.

Should the comic panel publications be deemed objectionable?

67. Given the affirmative answer to the previous question, the next practical issue for the Board to consider is whether the comic panel publications should be deemed objectionable pursuant to section 3(2).

68. Again, as already described, the deeming provision is a high threshold. The Board must be mindful that, in applying section 3(2), it must act consistently with section 14 of BORA. In particular, the Court of Appeal in the Moonen decisions has emphasised that description and depiction of a prohibited activity do not of themselves necessarily amount to promotion or support of that activity.
    
69. The Board considers that the comic panel publications do not promote or support, or tend to promote or support the exploitation of children or young persons for sexual purposes, such that they ought to be deemed objectionable.
    
70. The panels are ostensibly created for amusement purposes, utilising well known characters as they do. They may potentially be put to nefarious use, and that is a consideration for the Board under section 3(3) when it is determining objectionability. Again, that it is not to say the Board does not find the comic panel publications reprehensible and offensive. Indeed, the Board agrees with the Classification Office that most viewers would be likely to find the comic panel publications distasteful and in bad taste, but there are members of society who will find them amusing (without necessarily finding them arousing).
    
71. Balancing the section 14 BORA freedom of expression right and bearing in mind the high threshold required for section 3(2), the Board therefore declines to deem any of the comic panel publications objectionable.
    

Should the comic panel publications be determined objectionable?

72. The next stage in the Board’s analysis, therefore, is to decide whether to determine

the publications objectionable under section 3(3) and (4).

73. The Board considers the comic panel publications do portray children and young persons as sexual playthings, therefore for the use and titillation of the adult involved. There is a theme in all the comic panel publications that children and young persons are ready to engage, and capable of engaging in, sexual activity. There is also a theme evident in some of the comic panel publications that incest is acceptable, whether between children of the same family, or between father and

daughter. While the comic panel publications may have been created with the purpose of humour, they have the potential, if available, to be used by those with a prurient sexual interest in children, or for grooming purposes. They also seek to normalise immature sexual conduct.

74. The Board therefore determines the comic panel to be objectionable because they:
    
    1. Depict sexual conduct with or by children or young persons.
    2. Promote or encourage the criminal act of incest (some of them).20
       
75. Regarding the section 3(4) matters the Board is required to consider:
    
    1. The dominant effects of each of the comic panel publications in this category are discussed above and are amplified where recognisably famous cartoon characters are used.
    10. The medium of the publications is the use of recognisable cartoon characters and cartoon shows, which increase the interest which may be shown in the publications.
    11. There is no character to any of the publications considered from a literary, artistic, social, cultural, educational, scientific or other point of view.
    50. The Board has no evidence or information before it about the persons to whom the publications are intended or likely to be made available, the purpose for which the publications are intended to be used, or any other information about the intended or likely use of the publications. However, it notes that if the publications were able to be easily accessed and disseminated, an inference can be drawn that, while some may view them as amusing or entertaining, others may put them to a more predatory and insidious use, in fantasising about the sexual abuse of minors, or even using the publications to groom young persons.
76. In terms of section 3(1), in summary therefore, Board considers the availability of the comic panel publications likely to be injurious to the public good, because they present children or young persons engaging in sexual activity in an adult way akin to pornography, in a manner that normalises such activity and has the potential to
    

20 Specifically, 0.17, 0.18, 0.19, 0.20, 0.21, 0.22.

encourage the notion within broader society that children and young persons are appropriate subjects for sexual arousal.

77. The Board recognises that an objectionable classification interferes with the section 14 BORA right to freedom of expression but considers that the likelihood of injury to the public good in the way articulated above cannot be ameliorated by an age restriction and, accordingly, the objectionable classification is a reasonable and demonstrably justified limitation to the section 14 BORA right.
    

ANALYSIS – PHOTOGRAPHS

78. The fourth set of publications considered by the Board are the photographs:
    
    1. OFLC 2000307.031 is a photograph of a smiling young girl, naked except for a headband and scarf, and reclining on some rocks. Her face is made up and her left leg is splayed to reveal her genitalia. Branding for LS Models is evident in the top left of the photograph.

The Board considers the girl in the photograph to be a child of less than 12 years of age.

2. OFLC 2000307.032 is a photograph of two naked young children. The boy is lying flat on his back looking beyond the camera. The girl is crouched next to his legs also looking beyond the camera. Neither child’s genitalia can be seen.

The Board considers the children in the photograph to both be between 6 and 8 years of age.

100. OFLC 2000307.033 is a studio shot of a female crouched on a piece of blue rug presumably meant to look like the sea, with a fishing net hanging down beside her. She is on her hands and knees, looking back over her shoulder and her genitals can be seen. The LS Models branding can be see in the top right of the photograph.

The Board found it difficult to assess the female’s age and considered it could be anywhere from mid-late teens.

4. OFLC 2000307.034 is a somewhat blurred photograph of a hand with a finger inserted into a vagina.

The majority of the Board found it impossible to ascertain the age of the person to whom the vagina belonged, although a minority of the Board considered it was clearly a baby or young child.

5. OFLC 2000307.035 is a blurred photograph of a female of indeterminate age wearing a yellow top, no underpants and with her left index finger inserted into her vagina.

The Board found it impossible to ascertain the age of the person in the photograph.

6. OFLC 2000307.027 is a photograph of a young female reclining backwards on a stretcher or couch with her legs splayed and wearing only mid-thigh pantihose. The girl is holding an object to her genitals with one hand and appears to be masturbating with the other hand.

The Board considers the girl appears to be 9-10 years of age.

7. OFLC 2000307.038 is a photograph cropped to show a penis beneath a hairy stomach entering a vagina.

The majority of the Board found it impossible to ascertain the age of the female participant in the photo and thought some hip development was apparent. A minority of the Board considered the female was clearly a child.

8. OFLC 2000307.039 shows the same young girl from .032 crouched down and watching another male and female engage in rear entry intercourse. Just apparent to the left of the photograph is the head of the young boy from 0.32, also watching the sex occur.

The Board considers the young children in the photograph to be between 6 and 8 years of age, and the pair having sexual intercourse to be mid-teens.

1. OFLC 2000307.040 is a photograph of a young female on her hands and knees with her face pushed into a pillow while a man of indeterminate age enters her from behind.

The Board considers the female in the photograph is clearly a pre-teen child due to her lack of hip, waist or breast development.

10. OFLC 2000307.036 is a cropped photograph of a young girl lying across an older man’s chest and abdomen looking past him while she holds his erect penis with both hands.

The Board considers the young girl in the photograph to be between 8 and 10 years of age.

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

79. Except for OFLC 20000307.032-, the Board considers all the photographs pass through the section 3(1) gateway test, as they deal with the matter of sex.
80. OFLC 2000307. 032 does not, in the Board’s view, pass through the section 3(1) gateway for further consideration. The Board has reviewed the publication completely within its own four corners and considered it is an innocuous photo, on its face, of two naked young children. There are no genitalia visible, and there is nothing on the face of the photograph to suggest that the image is reasonably capable of being regarded as sexual in nature in terms of section 3(1A).
81. The Board therefore classifies OFLC 2000307. 032 as unrestricted and does not consider it further in this decision.

Should the photographs be deemed objectionable?

82. Given the affirmative answer to the previous question to all but one of the photographs, the next practical issue for the Board to consider is whether the remaining nine photographs should be deemed objectionable pursuant to section 3(2).
83. Again, as already described, the deeming provision is a high threshold. The Board must be mindful that, in applying section 3(2), it must act consistently with section 14 of BORA. In particular, the Court of Appeal in the Moonen decisions has emphasised that description and depiction of a prohibited activity do not of themselves necessarily amount to promotion or support of that activity.

84. The Board considers that five of the remaining nine photographs promote or support, or tend to promote or support. the exploitation of children or young persons for sexual purposes, such that they ought to be deemed objectionable. These photographs are:
    

a. OFLC 2000307.031.

b. OFLC 2000307.027.

c. OFLC 2000307.039.

d. OFLC 2000307.040.

e. OFLC 2000307.036.

(the “deemed objectionable” photographs)

85. The Board considers that the deemed objectionable photographs tend to promote or promote or support the exploitation of children or young persons for sexual purposes by depicting either contrived situations showing young girls posed and engaged in sexual activity for the titillation of the viewer, or young persons engaged in sexual activity with older males in a way which society does not condone and which may be abusive, or children watching sexual activity take place in a contrived setting and which they should not be viewing. The Board considers that for the five deemed objectionable photographs there are no other purposes which can be inferred from the photographs other than they exist for the sexual gratification of adults, and that the use of children and young persons for this purpose is normalised.
    
86. Balancing the section 14 BORA freedom of expression right and bearing in mind the high threshold required for section 3(2), the Board therefore deems the five photographs set out at paragraph 84 objectionable. The Board recognises that an objectionable classification interferes with the section 14 BORA right to freedom of expression but considers that the likelihood of injury to the public good in the way articulated above cannot be ameliorated by an age restriction and, accordingly, the objectionable classification is a reasonable and demonstrably justified limitation to the section 14 BORA right.

87. For the avoidance of doubt, had the Board not deemed the five photographs about to be objectionable, it would have determined them to be so because they:
    
    1. Depict sexual conduct with or by children or young persons (section 3(3)(a)(iv)).
    2. Exploit the nudity of children or young persons (section 3(3)(b)).
       

Should the remaining four photographs be determined objectionable?

88. The next stage in the Board’s analysis of the photographs, therefore, is to decide whether to determine the remaining four photographs objectionable under section 3(3) and (4).
89. The Board considers the following photographs to be ambiguous as to age and content, and therefore considers they ought to be unrestricted:
    1. OFLC 2000307.033. It is not at all clear to the Board that the female depicted in this photograph is definitively a young person. On its face, this is a photograph of a naked female on her hands and knees, with her face turned smiling to the camera.
    2. OFLC 2000307.035 is blurry and the age of the female subject is not at all evident. On its face, this is a photograph, possibly a selfie, of a female of unknown age inserting a finger into her shaved vagina.
90. The majority of the Board considers the following photograph to be ambiguous as to age and content and considers it ought to be unrestricted:
    1. OFLC 200307.034. It is not clear to a majority of the Board that the genitalia being depicted belongs to a child or young persons. On its face, then, the majority of the Board considered this to be a blurred photograph of a finger being inserted into a vagina.
91. The majority of the Board considers photograph OFLC 2000307.038 to be ambiguous as to the age of the two participants and considers it ought to be restricted to those aged 18 and above because it depicts a sexual act and is intended to be viewed by adults.

92. The Board recognises that an R18 classification for OFLC 2000307.038 interferes with the section 14 BORA right to freedom of expression for those less than 18, but considers that the R18 classification is a reasonable and demonstrably justified limitation to the section 14 BORA right.

ANALYSIS – VIDEO

93. The final publication considered by the Board is a 3-4 second Japanese anime of a character drawn as a child being penetrated from behind by an adult. The girl is caught in some kind of mesh, and she is upset and holding onto the wire which she is trapped in.
94. The Board considers that the child appears very young, perhaps 4-5, and the video clip may possibly be depicting her being raped, given the anguish and tears evident on the face of the child.
    

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

95. The Board considers that the video passes through the section 3(1) gateway because it depicts sex, violence, cruelty and possible a crime (rape).
96. The Board further notes that section 3(1A) provides that 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.
97. The Board considers that section 3(1A) therefore also applies to bring the video through the section 3(1) gateway.

Should the video be deemed objectionable?

98. Given the affirmative answer to the previous question to all but one of the photographs, the next practical issue for the Board to consider is whether the video should be deemed objectionable pursuant to section 3(2).

99. Again, as already described, the deeming provision is a high threshold. The Board must be mindful that, in applying section 3(2), it must act consistently with section 14 of BORA. In particular, the Court of Appeal in the Moonen decisions has emphasised that description and depiction of a prohibited activity do not of themselves necessarily amount to promotion or support of that activity.
    
100. The Board considers that the video promotes or supports, or tend to promote or support, the exploitation of children or young persons for sexual purposes (section 3(2)(a)), and/or the use of violence or coercion to compel the young girl depicted to submit to sexual conduct (section 3(2)(b)) such that it ought to be deemed objectionable.
     
101. The Board considers that the video condones the rape of a young girl and has been specifically created for the titillation of adults with a prurient sexual interest in young girls.
     
102. Balancing the section 14 BORA freedom of expression right and bearing in mind the high threshold required for section 3(2), the Board therefore deems the video objectionable. The Board recognises that an objectionable classification interferes with the section 14 BORA right to freedom of expression but considers that the likelihood of injury to the public good in the way articulated above cannot be ameliorated by an age restriction and, accordingly, the objectionable classification is a reasonable and demonstrably justified limitation to the section 14 BORA right.
     
103. For the avoidance of doubt, had the Board not deemed the video to be objectionable, it would have determined it to be so because it:
     
     1. Depicts an act of significant cruelty (section 3(3)(a)(i)).
     2. Depicts sexual violence or coercion (section 3(3)(a)(ii)).
     100. Depicts sexual conduct of a degrading or dehumanising or demeaning nature (section 3(3)(a)(iii)).
     4. Depicts sexual conduct with a child (section 3(3)(a)(iv)).
     5. Degrades or dehumanises or demeans any person (section 3(3)(c)).
     6. Promotes or encourages the criminal act of rape (section 3(3)(d)).

CONCLUSION

104. 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.
     
105. To summarise, the Board:
     
     1. Classifies as unrestricted publications: i. OFLC 2000307.000;

ii. OFLC 2000307.011;

iii. OFLC 2000307.032; iv. OFLC 2000307.033; v. OFLC 2000307.034; vi. OFLC 2000307.035.

2. Classifies as objectionable, except if the publication is restricted to persons who have attained the age of 18 years OFLC 2000307.038-.
   

100. Classifies as objectionable publications;
     

i. OFLC 2000307.001;

ii. OFLC 20003007.002;

iii. OFLC2000307.003; iv. OFLC 200307.004; v. OFLC 200307.005; vi. OFLC 2000307.006;

7. OFLC 20003.007;
8. OFLC 2003007.008; ix. OFLC 2000307.009; x. OFLC 2000307.010; xi. OFLC 2000307.012;

xii. OFLC 2000307.013;

xiii. OFLC 2000307.014;

xiv. OFLC 2000307.015; xv. OFLC 2000307.016;

xvi. OFLC 2000307.017;

17. OFLC 2000307.018;
18. OFLC 2000307.019;

xix. OFLC 2000307.020; xx. OFLC 2000307.021;

xxi. OFLC 2000307.022;

22. OFLC 2000307.023;
23. OFLC 2000307.024;
    24. OFLC 2000307.025;

xxv. OFLC 2000307.026;

26. OFLC 2000307.027;
27. OFLC 2000307.028;

xxviii. OFLC 2000307.031;

29. OFLC 2000307.037;

xxx. OFLC 200307.039;

31. OFLC 2000307.040;
32. OFLC2000307.036;

xxxiii. OFLC 2000307.041.

Dated at Wellington this 10th day of September 2020.

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.