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Text Messages [2022] NZFLBR 1 (30 March 2022)

Last Updated: 26 July 2023

Content Warning:

The decisions of the Film and Literature Board of Review are formal legal documents of a semi-judicial body. For this reason, they must be made available in full. They do not contain images or examples of pornography. In descriptions of the material being assessed the Board needs to use language used in the material and needs to describe some images in general terms. Please be aware the decisions may contain reference to sexual themes, abuse, self-harm, suicide and other topics that may be upsetting. It is not advisable for young people or those under 18 years of the age to access this material unless accompanied by a parent or guardian.

INTRODUCTION

1. The following members of the Board met by Zoom meeting under COVID-19 Red restrictions on 4 February 2022, and again on 24 March 2022 by Zoom, to consider this application for review:
   

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

Dr T. Brown Dr M Waitoki Ms S. Rowe

Mr M Boddington Dr R Liang

2. The publications which are the subject of the review consist of three schedules reflecting text messages exchanged between one man (Mr K) and each of three different other men (Mr M, Mr D and Mr R (the “publications”).
   
3. The publications consist of schedules showing 3 series of messages which, for convenience and prosecutorial purposes, have been provided together in 3 different Word documents, the content of which are the actual text exchanges occurring between Mr K and each of the other men respectively. Each of the Word documents contains a table headed up “Operation Cobra”, with columns then set out below for date, time, type of message, the number the message came from, the name of the person the message came from, the number to whom the message was sent, the name of the person to whom the message was sent, the content of the message itself, and the cell towers from which, and to, the message was sent. The Board understands that the Word documents comprising the publications were transcribed by the Classification Office.1
   
4. There are, therefore, three publications submitted to the Board described in the following way by the Classification Office:
   

1 Classification Office, Report of Findings to District Court at Christchurch, CRN 20009010211.

1. Publication 2100229.001 which is a 14-page-long record, allegedly of a text exchange between "K" and "M" sent between 4 October 2019 and 11 October 2019. K is posing as a 12 year old girl called Sophie who has accidentally texted M. The two have an SMS conversation about holidays, crushes and whether they are interested in each other. M asks for a photo and it appears that K sends one, although no photo has been submitted for classification. The exchange becomes more sexual as it progresses.
   
2. Publication 2100229.002 which is a 7 page long record, allegedly of a text exchange between "K" and "D" sent on 27 October 2019. K is posing as a 12-year-old girl called Kallie-May. The SMS conversation is again sexual and involved D attempting to organise a time to pick up "Kallie- May" for the purpose of sex. The last message appears to be an audio recording although no audio recording has been submitted for classification. As with the last publication, the exchange becomes more sexual as it progresses.
   

100. Publication 2100229.003 which is a 5 page long record, allegedly of a text exchange between "K" and "R" sent between 24 November 2019 and 7 December 2019. In the SMS conversation K purports to offer his 12- year-old daughter to R for sex saying he is responding to a personal ad. R appears to be suspicious and asks for photos as proof that the girl exists. Amongst the SMS messages, voice messages are occasionally listed but no audio recording has been submitted for classification.
     

5. The background to this review of the publications is important. As set out in the Crown’s submissions on review dated 16 November 2021 (“Crown submissions”), this review arose out of a national investigation conducted by the New Zealand Police (codenamed Operation Cobra), which relates to sexualised text conversations between the defendant in CRN 20009010211 (Mr K) and various co-accused (of which the other three man named above are three).

6. The conversations contained in the publications, broadly and inter alia, involve the men discussing having sexual intercourse with underage children and ostensibly making arrangements for such to occur. All four men are currently facing charges of making an objectionable publication contrary to sections 123(1)(a) and 124 of the Act. The Board understands that each defendant is charged jointly with Mr K, and each conversation (comprising each separate publication) is the subject of a separate charge.2
   
7. The publications were referred by the District Court to the Classification Office on 21 May 2021 and the Classification Office classified the publications on 14 September 2021.
   
8. Specified persons dissatisfied with any decision of the Classification Office with respect to the classification of any publication are entitled, on application, to have the publication reviewed by the Board.3 The Crown, as a party to the proceedings in which the Classification Office classifications were made, seeks a review of the Classification Office’s decision under section 47(2) of the Act.
   
9. The Board is required to conduct a review as soon as possible, to examine the publications, and to determine their classification.4 There are three possible classifications:
   
   1. Unrestricted
   2. Objectionable, or
   100. Objectionable except in one or more specified circumstances.5
        
10. 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 in its determination.6
    

2 The Crown advised the Board in its submissions that numerous other named persons charged as part of Operation Cobra have pleaded guilty and been sentenced. The Board does not need to refer to those persons in this review decision.

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

4 Section 52.

5 Sections 23(2) and 55(a).

6 Section 4.

11. The Crown as the Applicant has a right to make submissions to the Board.7 Submissions were received from the Crown through their counsel. Other parties to the proceedings also have the right to make submissions.8 Submissions were received from counsel for Mr K, Mr M and Mr D respectively.
    
12. The Board also has the power to invite submissions.9 It invited submissions from the Classification Office, and these were received. All submissions provided were considered carefully by the Board.
    
13. 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 inquiries. The Board was readily able to classify the publications by reading them and discussing them.
    

PRELIMINARY ISSUE – WHAT ARE THE PUBLICATIONS?

14. After considering the submissions, the Board apprehended there was a preliminary issue for determination, namely what constituted the publications for the purpose of the Board’s review.
    
15. In his counsel’s written submissions of 23 November 2021, Mr M submitted that, for the purposes of the Act, each text message contained in the publication comprising the K/M set of text messages is a separate publication.10 He relies in this submission on the previous decision of this Board in Re Marcus Elliott review of five text messages,11 a decision reviewing five text messages sent from a 35 year old man to a young girl aged 11 or 12 years, in which the Board assessed the objectionability of each text message.
    
16. In the Crown submissions, the Crown argued that12, while the publications are being presented to the Board as text schedules, it is still the text messages
    

7 Section 53(2)(a).

8 Section 53(2)(b).

9 Section 54(1).

10 Written submissions dated 23 November 2021 on behalf of Matthew Gavin, para 5.

11 In the matter of an application under s 47 by Marcus Elliott, Crown Solicitor, for a review of five text messages, 29 January 2014.

12 Crown submissions, paragraphs 62 ff.

themselves which constitute the relevant publications. The Crown says that the formatting of the evidential document on which these publications are displayed is not relevant to their objectionability and the use of text schedules to compile the text conversations that constitute the three respective publications is a means of practical convenience. The Crown points out it is not clear otherwise how the Classification Office or the Board could have otherwise been given a copy of publications, short of being sent the phones on which the messages were sent and saved.

17. The Crown states that it is wrong in principle, and unworkable as a matter of practice and common sense, to suggest that the formatting of the publications as an evidential document could detract from their objectionability and that such an approach undercuts the ability of a prosecuting agency to have text message such as this classified in any meaningful way.
    
18. The Classification Office submitted that13 the Crown submissions invite the Board to accept that the publications to be classified are not the documents submitted, but merely a “practical convenience” and that the actual publications are the text message exchanges which are on mobile devices that they were sent on and which are identical to the publications submitted. The Classification Office goes onto submit, rightly, that the definition of a publication in section 2 of the Act is very broad and includes electronic storage. The Classification Office’s submissions proceed on the basis that the publication to be classified are the three print documents submitted.
    
19. To the Board’s mind, the answer to this preliminary issue arises from the form in which the publication has been submitted. The Board agrees with the Crown’s submissions on this point and considers that, with respect, the Classification Office may have misinterpreted those submissions.
    
20. The definition of a publication in section 2 of the Act is, indeed, broad and includes, at (d):
    

13 Classification Office submissions, paragraph 13 ff.

“a thing (including, but not limited to, a disc or an electronic or computer file) on which is recorded or stored information that, by the use of a computer or other electronic device, is capable of being reproduced or shown as 1 or more (or a combination of 1 or more) images, representations, signs, statements, or words.”

21. The Board considers, therefore, that the “things” which it is reviewing are the contents of 3 series of messages which, for convenience and prosecutorial purposes, are grouped together in 3 documents. What is being reviewed is three sets of electronic texts messages existing on phones, albeit that they have come to the Board as documents. This has been done for the sake of convenience. Short of providing the Board with the phones of the men themselves, there is no other way that the Board (or the Classification Office) would be able to review the publications. The Board considers that the medium by which publications are provided to it should not be confused with the medium of the actual publications.
    
22. The Board emphasises that what it is classifying in this review are purely electronic publications.14 The means by which these electronic publications are shown to the Board should not confuse or distract the Board. By necessity, the documents have come to the Board in written form, but that does not detract from the fact that the Board is classifying electronic publications.
    
23. The Board notes that these messages were likely not intended to be turned into written publications by the defendants. Had one of the defendants concerned or anyone else converted the messages into written document form and the Board was being asked to classify such a written document, then different considerations would apply. Information held in electronic form constitutes a different publication from information held in a word document. It would not be contradictory to classify a publication in electronic form differently from essentially the same publication in written document form.
    

14 The Board notes in this regard that while “electronic publication” is a very broad term, it also has a specific meaning as a file format (for digital books). The Board has therefore employed the term in this decision with caution, noting its usual specific meaning.

24. The Board notes that SMS text messages are only readable because a software application (the messages app) installed on a phone presents an SMS log in a readable format, but how the messages are stored, and so what the publication actually is, is data contained in a database (on the phone) that the computer application reads from. What is relevant is that the SMS data is stored in the database in a format that is unreadable to humans, it can be read by the messages app but is not something that can be opened and read with a text editor or word processor like Word. It must be extracted first.
    
25. The issue of how readily or otherwise the electronic publications the Board is reviewing could be turned into non-electronic publications is however a relevant consideration under section 3(4), and discussed below. There is no option in terms of presenting the SMS chat logs, i.e., they must be extracted into a document in a form that is representative of the conversation held by SMS text, short of reviewing the phones themselves. But that doesn't mean what the Board is reviewing is the document per se.
    
26. Similarly, the Board does not agree with counsel for Mr M that each text is a separate publication to be considered separate one from the other (if that is what indeed counsel is suggesting). The Board does, of course, have to consider each and every text but, in the Board’s view, it is the three entire series of text exchanges that, separately, constitute the three publications under review (each publication being either a “thing” under the section 2 definition of publication, each being in electronic form and each comprising many parts (namely each text message) and/or “any print or writing” (under (b) of the definition).
    
27. The Board does not see this conclusion as being inconsistent with its previous Re Marcus Elliott decision. That decision does not make clear how and why the Board came to review five separate sentences.
    

KEY LEGAL CONSIDERATIONS

28. Key legislative provisions referred to in this decision are set out in the Schedule hereto.

29. The Board is first required to consider, in terms of section 3(1) of the Act, whether the publication describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty or violence. If the consideration results in a negative answer, then the Board must then classify the publication as unrestricted.15
    
30. If the section 3(1) consideration just referred to results in an affirmative answer, then the next consideration is whether the publication is likely to be injurious to the public good.16
    
31. This then requires the Board to consider whether the publication ought to be deemed objectionable under section 3(2). This provision has been interpreted by the Court of Appeal,17 which emphasised the high threshold to be overcome for the provision to apply, citing the importance of freedom of expression. The Court of Appeal emphasised that description and depiction of a prohibited activity do
    

15 Section 3(1). In Living Word Distributors The 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 objectional, 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 then the Board must 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.

16 Ibid.

17 The relevant decisions of the Court of Appeal are Moonen v The Film and Literature 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 and any form.” Under section 5 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 referred to any other meanings”. 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.”

not of themselves necessarily amount to the promotion of or support of that activity.

32. If the Board decides that it must deem the publication to be objectionable for the purposes of the Act, then it need not consider any further. It must classify the publication as objectionable.
    
33. 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 two possible classifications (unrestricted, or objectionable except in the specified circumstances).
    
34. When making a determination as to whether the publication is objectionable, the Board must give particular weight to the matters set out in section 3(3) and must consider the matters set out in section 3(4).
    

SUBMISSIONS

Crown submissions

35. After describing each of the publications, and considering the question of what constitutes a “publication” under the Act (as discussed above), the Crown submitted that (in summary):
    
    1. There can be no dispute that the three publications, when viewed as a whole, describe and deal with matters of sex and crime. All publications discuss the parties having sexual intercourse with a person whom they believe to be a 12 year old girl. The “crime” in each publication is sexual conduct with a young person under 16, pursuant to section 134 of the Crimes Act 1961. In the messaging between Mr K and Mr D, there is also reference to incest, which is a crime under section 130 of the Crimes Act. As a result, the publications are capable of being classified as objectionable and fall within the subject matter gateway.

2. The publications do advocate or encourage the exploitation of children for sexual purposes and, as such, mean that the publications ought to be deemed objectionable. The Crown accepts this is a high threshold to overcome, reflecting the need for the Act to be interpreted in a which consistent with the NZBORA. The Crown submits, however, that the high threshold is overcome in this case because all publications involve an active discussion by the participants about having sexual intercourse with a person who they believe to be a 12-year-old girl. One participant is clearly and unambiguously promoting child sexual exploitation to the other, under the guise of, or with reference to, a fictional child (with promotion to one person sufficing for the purposes of section 3(2) of the Act).
   
   100. Further, the fact that in each case the 12-year-old girl is fictional is irrelevant. One defendant, Mr K, is aware of that fact but the persons he is messaging is not. It would be wrong in principle if the fictional nature of the child in question was determinative of any classification.18 The defendants respond to Mr K with enthusiastic and often graphic responses.
        
   4. The messages also constitute “exploitation” for the purposes of section 3(3). In all cases, the children are well below the age of consent. In the K/R conversation, the child is not an active participant but is being proffered up for sexual abuse by her so-called father. In the K/M and K/D conversations, the men continue to engage in highly sexualised messaging even after finding out the ‘girl’ is only 12 years old, thereby exploiting what they believe to be her youth, naiveté and inexperience. There is no pre-existing relationship between any of these men and the children in question. The sole purpose for meeting with them is to have sex with them. The conversations are not framed in the abstract and there are clear attempts by the participants to arrange a meeting in order to facilitate the sexual encounter.
      

18 With reference in this regard to sections 124A(2) and 131B(1A) of the Crimes Act and Walsh v R [2016] NZHC 2747.

5. To deem the publications objectionable would be consistent with the approach taken by the Classifications Office in R v Spark,19 where the appellant had been found guilty of making objectionable publications in circumstances where he had instigated explicit sexualised conversations with a number of persons using internet chat programmes (where at least one of the participants was in fact an 11-year-old girl, but the other victims could not be identified).
   
6. If the Board is unwilling to deem the publications objectionable, the publications are nonetheless injurious to the public good with reference to the section 3(3) factors and can be classified as objectionable on that basis (under section 3(3)(a)(iv) and 3(3)(d)):
   
   1. All of the publications describe sexual conduct with children. Not only does the messaging describe such conduct but it also promotes and encourages such conduct.
      

2. There is no public utility to the conversations and are nothing more than a set of messaging where paedophiles are being baited and encouraged into preying on children.
   
3. This is even so when the Board takes into account the section 3(4) factors. The dominant effect of the three publications is identical, namely Mr K advertising underage children for sex, with the conversation steered immediately towards paedophilia and remaining there. The medium of text messaging depicts an active, real time, conversation between paedophiles arranging illicit sexual activity with minors. The publications have no merit. They are not intended to be made available outside of the participants themselves, or the criminal proceedings, but case law is clear that private conversations can still be injurious to the public good.20
   

19 R v Spark [2009] NZCA 345, with the question of availability confirmed by the Supreme Court in Spark v R [2009] NZSC 130.

20 Citing the Court of Appeal in R v Spark [ibid].

Finally, the purpose of the original text messages contained in the publications was discussing and sexually exploiting children.

4. An objectionable classification is consistent with ensuring that law enforcement is able to prosecute persons who, under the veil of perceived anonymity, seek to trade in and sexually exploit underage children.
   

Defendant Submissions

Submissions on behalf of Mr M

36. Counsel for Mr M, after submitting on what is a publication (discussed above), submitted that (in summary and pertaining to the publication of the messages between K/M):
    
    1. The publication deals with sex, bringing it within the subject matter gateway. The publication does not, however, deal with the criminal offence of sexual conduct with a young person because the parties to the conversation discuss sexual conduct with a young person as a fantasy rather than something they had done or intended to do, and the party claiming to be a 12-year-old girl called Sophie is identified within the publication as Mr K so that it would be apparent to a reader of the publication that there is in fact no 12-year-old girl taking part in the conversation depicted.
       
    2. The publication should not be deemed objectionable under section 3(2). It is accepted that the publication depicts sexual interest by an adult in an individual purporting to be a child, and that if that individual were presented as a real child, the publication would depict a degree of exploitation of that child for sexual purposes. However, it is evident to the reader that the party claiming to be a child is in fact Mr K. While counsel accepts the fact that “Sophie” is fictional does not necessarily bear on the objectionability of the publication, the fact that “Sophie’s”

true identity is disclosed in the publication and the way in which the publication presents the text conversation as evidence of the men’s communications with each other, bear significantly on the impact of the publication.

100. The publication presents to the reader as evidence gathered by Police. Rather than promoting or supporting the sexual exploitation of children, the publication has the opposite effect of censuring any such exploitation.
     

4. It is for the Board to assess whether the publication promotes child sexual exploitation, rather than Mr K within the publication.
   
5. In terms of section 3(3) considerations, the relevant provisions is section 3(3)(a)(iv). For the reasons already expressed, the publication does not promote or encourage criminal acts as per section 3(3)(d)). The publication only deals with sexual conduct involving a young person to a limited extent, and in a manner which negates objectionability:
   
   1. The reader of the publication is given the impression of an adult pretending to be a young person discussing sexual conduct, rather than a young person discussing sexual conduct.
      

2. The references to sexual conduct involving the purported young person are not detailed.
   
3. The publication presents to the reader as evidence gathered by the Police and indicates censure of such conduct.
   

f. In terms of the section 3(4) considerations, counsel for Mr M endorses the views of the Classification Office (below).

7. The publication is not likely to be injurious to the public good because Mr K is identified within the publication, the nature of the publication is evidence compiled by the Police intended to be used for the purpose of a

criminal prosecution and the publication deals with sexual conduct involving a young person to a limited extent.

8. Restricting the publication to adults is a reasonable and justified limitation on the right to freedom of expression as adults would be able to contextualise it as evidence.
   

Submissions on behalf of Mr K

37. Counsel for Mr K adopted the submissions on behalf of Mr M insofar as they relate to Mr K. She submitted further that:
    
    1. The text conversation between Mr K and Mr D is of a similar nature to that between Mr K and Mr M and appears to show two male adults acting out a fantasy and therefore does not deal with a criminal offence of sexual conduct with a young person. The content, while concerning, does not describe, depict or otherwise deal with sexual conduct with or by children or young persons.
       
    2. The text conversation between Mr K and Mr R is different in nature in that Mr K asks Mr R if he is “interested in his little girl” rather than purporting to be a 12-year-old girl. The text conversation was clearly between two adult males and Mr K did not state that he was offering his daughter up for sex. The text conversation between the two does not amount to a criminal offence.
       
    100. The R v Spark case is distinguishable as being argued on the issue of publication rather than the classification (with the publication being to an 11-year-old child (and others unknown).
         
    4. None of the publications are brought within the subject matter gateway. None promote or support the section 3(2) considerations nor do they deal with sexual conduct with a young person pursuant to section 3(3) of the Act to such an extent that they should be classified as objectionable.

Submissions on behalf of Mr D

38. Counsel on behalf of Mr D adopted the submissions on behalf of Mr Gavin and Mr K as they related to Mr D. He submitted in summary that the text messages appear to show two adult males acting out a fantasy and therefore do not deal with a criminal offence of sexual conduct with a young person.
    
39. No submissions appear to have been received on behalf of Mr R.
    

Classification Office Submissions

40. The Classification Office submitted that (in summary) and in addition to the issue of what publication is before the Board (already discussed above):
    
    1. Any suggestion in the Crown submissions that the Board should be focussed on ensuring law enforcement can successfully prosecute persons should be strongly rejected in favour of an independent process of classification.
       
    2. All the publications meet the "subject matter gateway" for classifying publications under section 3(1). The publications all involve discussions of a sexual nature, including sex, masturbation and sexual fantasies.
       
    100. The nature of the publications significantly changes the overall impact and effect on the reader. The publications are evidence of disturbing attitudes and the willingness to engage in such sexual exchanges about 12-year-old girls is deeply concerning, however the overall impact and effect of the publications on the reader cannot be said to be promotional and supportive of the sexual exploitation of children or young people. Given the fact that the document was created by the Police and controlled by the Court it seems there is a reasonable prospect that the documents will not be made available outside of the Investigative and Court

processes and thereby it will have limited opportunity to promote or support and cannot be deemed objectionable.

4. The relevant provision in section 3(3) is section 3(3)(a)(iv). No actual 12- year-old girl is involved in the exchanges, and this significantly affects how the exchanges in the publication are viewed. The publications present as a record of a man pretending to be a child and engaging with other men in sexual exchanges. The sexual exchanges are not detailed, explicit or promotional in the manner of publications designed to promote sexual conduct with children usually are. While disturbing the context of these publications means that the extent and degree to which these publications deal with sexual conduct with children is significantly reduced.
   
5. In terms of section 3(3)(d), it could be argued that the SMS exchanges in this publication are encouraging criminal acts, as all reference the prospect of sex with a 12-year-old girl. However, as the publications are compilation brought together by the police for investigation and prosecution, the publications cannot be said to promote or encourage the sexual offending against children to any extent or degree.
   
6. In terms of the section 3(4) factors:
   
   1. The dominant effect of the publications is of a series of SMS messages between adults males which have been compiled by Police for evidential purposes.
      

2. The publications are unlikely to be available outside the prosecution process. In terms of the original text messages, those messages present as a private conversation and are unlikely to be intended for wider publication.
   
3. The publications have merit for the purposes of police investigation and prosecution but the content has no merit, value or importance in relation to the above criteria.

4. The publications are records or private conversations which were likely only intended for the parties involved. The actual intentions of the parties to those conversations (particularly the man repeatedly posing as a 12-year-old girl) are not entirely clear, although the intentions and attitudes disclosed by the publications are concerning.
   5. Intention of the actual publications, however, are that they would be used and made available for investigative and prosecution processes.
      
   
   

g. In the unlikely event that the publications were made available for a wider audience, while adults are likely to be disturbed by the real-life conversations on the subject of child sex abuse, they would likely be able to see the publications for what they are, investigative and prosecution tools. However the publications are still likely to be shocking and disturbing to children and young people, and has the potential to harm their developing sexual attitudes. Therefore, the publications should be classified as objectionable except if the publications restricted to persons who have attained the age of 18 years.

ANALYSIS

41. The Board confirms at the outset that it has not focussed on the issue of whether law enforcement can successfully prosecute persons but has, as the Act requires of it, focussed completely on the publications before it only.
    

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

42. This is the initial “gateway” issue for the Board to consider under section 3(1) and does not require at this stage a consideration of whether the availability of each publication is likely to be injurious to the public good.

43. The Board is satisfied that all three publications pass through the section 3(1) gateway in that they deal with matters of “sex”. The Board is also satisfied that all three publications deal with “crime” in terms of section 3(1). All three publications discuss sex with an underage girl. One of the publications also discusses incest.
    

Should the publications be deemed objectionable?

44. As referred above, in the light of the affirmative answer to the previous question in respect of all three publications, the next practical issue for the Board to consider is whether any or all of the publications should be deemed objectionable pursuant to section 3(2). If the deeming provision applies, there is no need for the Board to consider the factors in section 3(3) and section 3(4), which inform the Board in its consideration of whether the availability of a publication is likely to be injurious to the public good. If the high threshold of section 3(2) is met, by virtue of it being met, a publication is deemed to be objectionable because it depicts one of the offensive themes from section 3(1) in such a manner that the availability of the publication is likely to be injurious to the public good.
    
45. The Board considers that the publications do not contain a promotion of underage sex which would engage the deeming provisions. Rather, the publications simply directly depict men engaging in nefarious activity. There is nothing in the publications which set out to encourage such activity and, indeed, the Board agrees with counsel for Mr M that one reading of the publications could invoke a sense of condemnation. What the publications do is portray the defendants engaging in the sexual exploitation of children. In much the same way, the frank portrayal on TV of real-life crime unfolding does not amount to promotion or support of the crime.
    
46. The Board is mindful of the high threshold for section 3(2) to be invoked and does not consider that high threshold to be met here by any of the three publications. While undoubtedly abhorrent, there is nothing in the sexual conversations depicted which promotes or supports the exploitation of children

or young people for sexual purposes; rather, the conversations merely discuss sexual conduct with a fictional young person.21 A minority of the Board considered there were aspects of the conversations which did promote or support the exploitation of young persons for sexual purposes but, mindful of the high threshold for a deeming decision, preferred to address this issue in terms of section 3(3) and 3(4).

Determination Under Section 3 (3) and (4)

47. Because the Board has declined to deem the publications objectionable, it must now turn to sections 3(3) and 3(4) to determine whether those two remaining publications are objectionable.
48. The Board considers that that relevant provision here is section 3(3)(a)(iv) in that the publications deal with sexual conduct with or by children, or young persons, or both. As above for section 3(2), the Board considers that the publications do not contain a promotion of underage sex but simply directly depict men engaging in conversations about sexual activity with a fictitious 12-year-old girl.
49. The Board also considered whether section 3(3)(d) was relevant. The three conversations undoubtedly discuss the commission of crimes, namely sex with an underage person and, in the case of the K/M transcript, incest. The Board decided, however, that none of the conversations promote or encourage such activity. Rather, they merely discuss the criminal activity. The Board therefore preferred to focus on section 3(3)(a)(iv).
50. Applying the factors in section 3(4):
    
    1. The dominant effect of each the publications as a whole is a series of text messages between adult males purporting to be discussions of a sexual nature involving a 12-year-old girl.
    2. The impact of the medium in which the publication is presented is a Word document, easily able to be copied, shared and disseminated (by emailing
       

21 The Board notes here that there is nothing on the face of the publications themselves which enabled the Board to categorically decide the young person in the conversations was fictional.

or by printing a hard copy). The underlying messages are stored on a phone and are equally able to be shared or disseminated via a JPEG or screenshot.

100. The publications have no character in terms of section 3(4)(c), although conceivably may contain educative merit or scientific curiosity to show the grooming process and how it may progress, or as a snapshot of real life in which adult men engage in these kinds of fictional conversations.

4. It is likely that the conversations which the publications embody were intended or likely to be made available only to the participants and had no other purpose. The messages are different to images which may be passed on and circulated to others. It is unlikely that a set of text messages, by contrast, would be of interest to anybody outside the original participants.
5. Other relevant circumstances are that these text messages were not offered voluntarily by the participants; rather, they were submitted by the Police as evidence to support criminal charges. The Board views this factor as relevant when assessing harm to the public good.

51. The majority of the Board therefore determines, under section 23(2)(c)(i) of the Act, that all three publications are objectionable except if the availability of the publications is restricted to persons who have attained 18 years of age. The majority of the Board considers that the publications should not be seen by children or young persons because of some of their graphic comment and because a child or young person may be unable to ascertain the context of the publications and the fact the conversations are in fact between adult men.
    
52. The Board does consider there to be injury to the public good by the unrestricted availability of the publications. The Board acknowledges they are not obviously titillating. On the contrary, they could be viewed as educative of how sinister text messaging commences and develops and how successful grooming may operate. However, the Board does consider there to be injury to the public good by the unrestricted availability of the publications for the reasons set out below.

53. The Board considers the words “likely to be” in section 3(1) have a two-fold meaning. They reference both the present and the future. When referencing the present, the word “likely” takes on a meaning of probability. When referencing the future “likely” takes on a meaning of what might yet occur. The two meanings apply at one and the same time, and are inseparable.
    
54. The Board also considers that the words “the public good” in section 3(1) have a very elastic meaning. It is conceivable that it is not in the public good to permit certain private activities which might not be shared with anyone other than the one or two people involved. Thus, it conceivably may not be in the public good to countenance an individual creating a vicious and hate-filled document even if that person has no intention of sharing it with others.
    
55. The Board concludes that the publications are likely to be injurious to the public good for two reasons. First, the publications are harmful to the four defendants, because they endorse and enable criminal activity, namely the sexual exploitation of children. Second, there is a risk that the publications will be shared with the public at large, in whatever form, and that sharing may potentially serve to endorse the activity (as well as the opposite of causing repugnance at the activity). Although the general public could view the publications in polar opposite ways as just mentioned, nonetheless the fact that some members of the public might take the publications as an endorsement of the exploitation of children is enough, in the Board’s view, to render the publications as likely injurious to the public good.
    
56. The publications are, as just mentioned, ambiguous in their potential benefit or harm. Some publications the Board views can never be of conceivable benefit to the public, for example an image of a child being abused. Such images are not of any potential educative value. The majority of the Board considers that the publications it is dealing with in this case are different. They are not titillating, but coldly practical. It could be in the public good for such publications to be seen by the public for educative purposes. For example, it could well be beneficial for the real-life exchanges between the defendants to be shown to a

group of adult parents as part of parenting training so that they have a heightened awareness of the nature and degree of risk to the parents of those children. For that reason, the majority of the Board supports the R18 classification. The assessment of the majority of the Board is that if the publications are able to be made available to adults then the public benefit will well outweigh the public harm because the great majority of the public will be repulsed by rather than attracted to the publications, and so overall they are not likely to be injurious to the public good.

57. A minority of Board members saw the injury to the public good of the publications being available to be such that they ought to be determined objectionable under section 23(2)(b).
    

CONCLUSION

58. The majority of the Board therefore determines, under section 23(2)(c) of the Act, that the publications should be restricted to persons who have attained the age of 18 years.
    
59. 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 30th day of March 2022.

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. The Crown, as a party to criminal proceedings in which Classification Office classifications were made, sought a review of the Classification Office’s decision to classify three publications under section 47(2) of the Act.
   
2. The publications which were the subject of the review consisted of three schedules reflecting text messages exchanged between one man (Mr K) and each of three different other men (Mr M, Mr D and Mr R (the “publications”).
   
3. The publications consisted of schedules showing 3 series of messages which, for convenience and prosecutorial purposes, were provided together in 3 different Word documents, the content of which were the actual text exchanges occurring between Mr K and each of the other men respectively. Each of the Word documents contained a table headed up “Operation Cobra”, with columns then set out below for date, time, type of message, the number the message came from, the name of the person the message came from, the number to whom the message was sent, the name of the person to whom the message was sent, the content of the message itself, and the cell towers from which, and to, the message was sent. The Board understood that the Word documents comprising the publications were transcribed by the Classification Office.
   
4. There were three publications submitted to the Board:
   
   1. Publication 2100229.001 which is a 14-page-long record, allegedly of a text exchange between "K" and "M" sent between 4 October 2019 and 11 October 2019. K is posing as a 12 year old girl called Sophie who has accidentally texted M. The two have an SMS conversation about holidays, crushes and whether they are interested in each other. M asks for a photo and it appears that K sends one,

although no photo has been submitted for classification. The exchange becomes more sexual as it progresses.

2. Publication 2100229.002 which is a 7 page long record, allegedly of a text exchange between "K" and "D" sent on 27 October 2019. K is posing as a 12-year-old girl called Kallie-May. The SMS conversation is again sexual and involved D attempting to organise a time to pick up "Kallie-May" for the purpose of sex. The last message appears to be an audio recording although no audio recording has been submitted for classification. As with the last publication, the exchange becomes more sexual as it progresses.
   

100. Publication 2100229.003 which is a 5 page long record, allegedly of a text exchange between "K" and "R" sent between 24 November 2019 and 7 December 2019. In the SMS conversation K purports to offer his 12-year-old daughter to R for sex saying he is responding to a personal ad. R appears to be suspicious and asks for photos as proof that the girl exists. Amongst the SMS messages, voice messages are occasionally listed but no audio recording has been submitted for classification.
     

5. The majority of the Board determined the publications to be objectionable except if the availability of the publications is restricted to persons who have attained 18 years of age:
   1. The dominant effect of each the publications as a whole is a series of text messages between adult males purporting to be discussions of a sexual nature involving a 12-year-old girl.
   2. The impact of the medium in which the publication is presented is a Word document, easily able to be copied, shared and disseminated (by emailing or by printing a hard copy). The underlying messages are stored on a phone and are equally able to be shared or disseminated via a JPEG or screenshot.

100. The publications have no character in terms of section 3(4)(c), although conceivably may contain educative merit or scientific curiosity to show the grooming process and how it may progress, or as a snapshot of real life in which adult men engage in these kinds of fictional conversations.
     4. It is likely that the conversations which the publications embody were intended or likely to be made available only to the participants and had no other purpose. The messages are different to images which may be passed on and circulated to others. It is unlikely that a set of text messages, by contrast, would be of interest to anybody outside the original participants.
     5. Other relevant circumstances are that these text messages were not offered voluntarily by the participants; rather, they were submitted by the Police as evidence to support criminal charges. The Board views this factor as relevant when assessing harm to the public good.

6. The majority of the Board considered that the publications should not be seen by children or young persons because of some of their graphic comment and because a child or young person may be unable to ascertain the context of the publications and the fact the conversations are in fact between adult men.
   
7. The Board considered there to be injury to the public good by the unrestricted availability of the publications. The Board acknowledged they are not obviously titillating. On the contrary, they could be viewed as educative of how sinister text messaging commences and develops and how successful grooming may operate. However, the Board considered there to be injury to the public good by the unrestricted availability of the publications.
   
8. The Board considered the words “likely to be” in section 3(1) have a two- fold meaning. They reference both the present and the future. When referencing the present, the word “likely” takes on a meaning of probability. When referencing the future “likely” takes on a meaning of what might yet occur. The two meanings apply at one and the same time, and are inseparable.

9. The Board concluded that the publications are likely to be injurious to the public good for two reasons. First, the publications are harmful to the four defendants, because they endorse and enable criminal activity, namely the sexual exploitation of children. Second, there is a risk that the publications will be shared with the public at large, in whatever form, and that sharing may potentially serve to endorse the activity (as well as the opposite of causing repugnance at the activity). Although the general public could view the publications in polar opposite ways as just mentioned, nonetheless the fact that some members of the public might take the publications as an endorsement of the exploitation of children is enough, in the Board’s view, to render the publications as likely injurious to the public good.
   
10. A minority of Board members saw the injury to the public good of the publications being available to be such that they ought to be determined objectionable under section 23(2)(b).