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The Last of Us part 1 [2022] NZFLBR 2 (11 November 2022)

Last Updated: 26 July 2023

INTRODUCTION

1. The following members of the Board met on 13 September 2022 in person to consider this application for review:
   

Ms R Schmidt-McCleave (President) Mr M Boddington

Dr T Brown Dr R Liang Ms E Marvelly Ms S Rowe Mr T Turton

2. The publication, The Last of Us Part 1 (“the publication”) which is the subject of the review is a video game made for PC and Playstation 5 which is a remake of The Last of Us (2013), classified as R18 by the Classification Office in 2013.

3. The publication is an action-adventure game played from a third-person perspective. The main character Joel, controlled by the player, traverses post-apocalyptic environments, and uses firearms, improvised weapons, hand-to-hand combat, and stealth to defend against hostile humans and cannibalistic creatures known as the Infected. For most of the game, Joel accompanies a young girl, Ellie (immune to the infection) across the United States to a group known as the Fireflies. The Fireflies are hoping to use Ellie’s immunity to create a cure and save humanity. The game includes an expansion called The Last of Us: Left Behind, which follows Ellie in a shorter narrative as she searches an old shopping mall for medication to help Joel when he is injured. This part of the game includes snippets from the past as Ellie and her friend Riley head into the city after curfew.
   
4. As noted by the Classification Office, the game includes extra content such as behind-the-scenes artwork, videos and podcasts. The game is awash with themes and images of horror and violence. In typical post-apocalyptic drama genre, pockets of humanity have sprung up with people protecting their patch, as well as areas where the Infected are rife. Again, as noted by the Classification Office, the overall effect of the game is of a hostile world where there are few safe places.
   
5. The player of the game controls Joel (and sometimes Ellie) as they fight their way through the world, violently dispatching any Infected (and sometimes other humans) who impede their progress. Examples of the horrific scenes and images depicted include a father (Joel) cradling his child who has been shot in the chest and dies in his arms, graphic gun violence with detailed depictions of blood and gore, stealth scenes where people are killed without weaponry, hand-to-hand combat scenes where people can be stabbed or be subjected to a “shiv kill” (with neck arterial blood spurting out), dead bodies strung up on hooks, and a man butchering a human corpse. At one point, a man shoots himself in the head after his young brother has become infected and has to be killed. By this stage in the game, the player has inevitably formed some type of emotional attachment with the brothers, who joined forces with Joel and Ellie at an earlier point.
   
6. The Board was shown how some powerful guns available to the player can be used to blast off body parts (including heads) in graphic, gory detail. Similar injuries are

shown when a nail bomb explodes at one point and Molotov cocktails produce gory, detailed fiery deaths. There are moments in the game where, if the player fails to press certain buttons, Joel himself will suffer a vivid, bloody demise, for example by being stabbed in the neck with a shard of glass.

7. The Infected themselves are graphic and horrific villains, evolving through the course of the game from zombie-like monsters, to creatures on four legs, to those in the advanced stages of infection who are blind and almost unrecognisable as once human encased as they are in fungus-like growths. The fungus creatures can only click to make a noise and rush quickly to every sound.
   
8. The game is extremely realistic, and is also peppered with offensive language, with variations on “fuck” being used frequently.
   
9. On 1 July 2022, the Office of Film and Literature Classification (the “Classification Office”) classified the publication as R18 under the Act.1
   
10. 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.2
    
11. The applicant has applied. Under section 47(2)(e) of the Act, leave of the Secretary was required, and was granted.
    
12. The Board was required to conduct a review as soon as possible, to examine the publication, and to determine its classification.3 There are three possible classifications: unrestricted or objectionable or objectionable except in one or more specified circumstances.4
    

1 Under section 23(2)(c)(i): objectionable except...if the availability of the publication is restricted to persons who attained a specified age not exceeding 18 years.

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

3 Section 52

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

13. 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.5
    
14. The applicant does not have the right to appear before the Board but does have the right to make submissions to it.6 Submissions have been received from the applicant. The Board has the power to invite submissions from the Classification Office.7 It made that invitation and submissions were received.
    
15. 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. It was readily able to classify the publication simply by viewing it, with the assistance of two gaming experts from the Classification Office who took the Board through the various levels of the game.
    

THE KEY LEGAL CONSIDERATIONS

16. Key legislative provisions referred to are set out in the attached schedule to this decision.
    
17. The Board is first required to consider in terms of section 3(1) whether the publication describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty, or violence. If the consideration results in a negative answer, then the Board must classify the publication as unrestricted.8
    

5 Section 4.

6 Section 53(1).

7 Section 54(1).

8 Section 3(1) In Living Word Distributors v Human Rights Action Group (Wellington) [2000] NZCA 179; [2000] 3 NZLR 570 the Court of Appeal described section 3(1) of the Act as a “subject matter gateway” to being found to be objectionable, in that if a publication does not describe, depict, express, or otherwise deal with matters such as sex, horror, crime, cruelty, or violence, it cannot be classified as objectionable. Once a publication makes it through the subject matter gateway, the Board must then consider whether the subject matter is dealt with in such a manner that the availability of the publication is likely to be injurious to the public good.

18. If the section 3(1) consideration just referred to results in an affirmative answer, then the next consideration is whether the publication is likely to be injurious to the public good.9
    
19. This then requires the Board to consider whether the publication is deemed objectionable under section 3(2). This provision has been interpreted by the Court of Appeal,10 which emphasised the high threshold to be overcome for the provision to apply, citing the importance of freedom of expression. The Court of Appeal emphasised that description and depiction of a prohibited activity do not of themselves necessarily amount to promotion or support of that activity.
    
20. 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.
    
21. 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).
    

9 Ibid.

10 The relevant decisions of the Court of Appeal are Moonen v The Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9 (Moonen 1 and Moonen v Film and Literature Board of Review [2002] NZCA 69; [2002] 2 NZLR 754 (Moonen 2). In both Moonen decisions, the Court of Appeal espoused the importance of the New Zealand Bill of Rights Act 1990 (BORA) and the fact that the Board must be mindful that, in applying the Act, it must act consistently with BORA. Section 14 of BORA states that everyone has “the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.” Under section 5 of BORA, this freedom is subject “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Further, section 6 of BORA provides that “[wherever] an enactment can be given a meaning that is consistent with the rights and freedoms contained [in BORA], that meaning shall be preferred to any other meaning.” In Moonen 1, the Court of Appeal made the following statement which the Board recognises is key to its consideration of the section 3(2) “deeming” provision for objectionability (at [29]):

“The concepts of promotion and support are concerned with the effect of the publication, not with the purpose or the intent of the person who creates or possesses it. The concepts denote an effect which advocates or encourages the prohibited activity, to borrow the words of Rowles J of the British Columbia Court of Appeal in an allied context in R v Sharpe (1999) 136 CCC 3d 97 at para 184. Description and depiction (being the words used in s 3(3)(a) of the Act) of a prohibited activity do not of themselves necessarily amount to promotion of or support for that activity. There must be something about the way the prohibited activity is described, depicted or otherwise dealt with, which can fairly be said to have the effect of promoting or supporting that activity.”

22. 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

23. The applicant provided detailed submissions and accompanying materials, which the Board was appreciative of.
    
24. The applicant submits, in summary, that the publication should be R16. He says he has no commercial, occupational, professional, or other interest in the publication other than an interest no greater than the general public. His key point, supported by material on other video games which the Board has considered carefully, is that more recent games have been given lower ratings for comparable objections from the original The Last of Us 2013 video game, as a result in the evolution in the way society views games and objectionable content since 2013. The applicant provides detailed submissions on comparative scenarios in other video games which have a lower rating.11
    
25. The applicant also compares the publication to Last of Us Part 2, which has an R18 rating, and which has more hate and revenge, and less love and hope, than the publication. The applicant says the publication always strives to balance the violence in the game with great storytelling and emotional beats, with the violence always having a purpose. He submits that special consideration should be given to moments like this throughout the game, and that 16- and 17-year-olds are more likely to have the maturity to appreciate these moments.
    
26. The applicant submits that the publication has a degree of artistic merit with it, and the original game on which it is based, sharing voice acting and performance and story which have won numerous awards around the world.12 The applicant submits
    

11 Namely, Far Cry 6 (R16), God of War (R13), Resident Evil 2 Remake (R16), The Quarry (R16),

Uncharted 4 and Uncharted Lost Legacy (R13), Days Gone (R16).

12 Noted at https://www.imdb.com/title/tt2140553/awards

that, although he is not a parent, he would recommend the publication to teenage friends and family over other games.

27. The Classification Office submits, in summary:
    
    1. The publication primarily deals with matters of horror, cruelty and violence under section 3(1) of the Act.
       
    2. In terms of sections 3(3) and 3(4) of the Act:
       
       1. The publication deals with acts of torture, the infliction of serious physical harm or acts of significant cruelty, throughout in both game play and narrative.
          
    2. The publication allows players to regularly engage in brutal and gory combat, where detailed blood effects and enemy hit reactions add a sense of realism and weight to the violence.
       

3. The game contains moderate use of highly offensive language. Repeated exposure to highly offensive language has an inuring effect, which increases the risk of social harm to younger audiences should they imitate its use.
   
   4. The suicide scene is emotionally impactful as players have spent time with the brothers (Henry and Sam) as they escaped the city with Joel and Ellie. This death is likely to be momentarily shocking to most audiences and upsetting to those affected by suicide. However, the dramatic circumstances mean it is unlikely to inspire imitation.
      
100. In terms of rating, the Classification Office noted that classifications proceed on the basis of the publications that are being assessed at that time. While other publications can make up the wider context around a game, the process generally does not involve direct comparisons to other games.

4. While classification decisions detail the strongest instances of classifiable content in a game, the manner in which a game presents itself throughout is equally as important and the Classification Office generally discusses contextual information within its conclusion.
   
5. In this case, the Classification Office determined that the publication is an exceptionally crafted video game with realistic visuals and a grim, characterful story. The game’s strong gory violence is likely to disturb younger audiences, and inure teenagers to violence.
   

28. Having regard to the NZBORA right to freedom expression, the Classification Office determined the publication’s rating to be R18.
    

ANALYSIS

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

29. As referred to in above, this is the initial “gateway” issue for the Board to consider under section 3(1). The Board considers that the publication deals with horror, cruelty and violence. The answer to the question posed is therefore “yes”.
30. The Board notes also at this point that, although it has considered the further material on other games provided by the applicant, the Board’s task on review is to consider the publication before it, applying the tests in the Act. That is what it has done.

Should the publication be deemed objectionable?

31. In light of the affirmative answer to the previous question, the next practical issue for the Board to consider is whether the publication should be deemed objectionable pursuant to section 3(2).
32. The matters referred to in paragraphs (a)-(e) of section 3(2) do not apply to this case. The live issue is section 3(2)(f), namely whether the publication promotes or supports, or tends to promote or support, acts of torture or the infliction of extreme violence or extreme cruelty, such that the game should be deemed objectionable.

33. In considering this issue, the Board has regard to the judicial interpretation of the subsection referred to in footnote 10 and, particularly, the high threshold for section 3(2) to apply.
34. The unanimous view of the Board is that the required threshold for a deeming of objectionability under section 3(2) is not met. There is nothing about the game which could be said to promote or support, or tend to promote or support, extreme violence or cruelty such that section 3(2) would be engaged. The game is simply that, a game.
    

FURTHER ANALYSIS

35. The Board therefore moved onto consider whether to determine the game objectionable, considering weight to be given to any of section 3(3) factors and considering the matters in subsection (4).
36. The Board considered in this analysis that, in the way described at the beginning of this decision, the game depicts, or otherwise deals with by allowing interaction between the player and the game, acts of torture, the infliction of serious physical harm and acts of significant cruelty (section 3(3)(a)(i)). The game also could possibly be seen to dehumanise and demean the people within it who are slaughtered or commit suicide (section 3(3)(c)).
37. In this regard, the Board has particularly noted the levels of violence, with all manner of weaponry, and the realistic and graphic depictions of death and other acts of violence. The Board considered that the impressive realism of the game made the acts and scenes within it particularly impactful, as did the level of detail of blood, gore and brain matter.
38. The Board was particularly struck by the number of killings, the lack of empathy apparent in the killings and, with some weapons, the apparently wanton “overkill” available to the player, which didn’t seem warranted. There was also reference at some points to a kill being “the way to do it” which the Board found to be impactful to younger people, potentially inuring them to death and violence. The Board found the cannibal scene to be particularly gruesome and affecting.

39. The Board also refers to the moderately offensive language peppered through the game which, if available to younger audiences, would be likely to cause serious harm to them by inuring them to the use of such language (section 3A).
40. Finally, the Board considers the suicide scene, while not particularly graphic, as the man’s body falls offscreen, to be potentially upsetting to younger and more vulnerable viewers who may be unable to rationalise the scene. There is a risk that a scene like that creates a perception amongst younger players that suicide is an acceptable way out when the chips are down, a risk the Board finds unacceptable with New Zealand’s current high teenage suicide rates.
41. Regarding the section 3(4) matters, the Board considers:
    
    1. The dominant effect of the game as a whole is a realistic and interactive depiction of a violent, gruesome post-apocalyptic world.
    2. The impact of the medium, a video game, means the player has no choice but to experience the levels of gore and violence in the game as that is the way the player progresses through the game.
    100. The game has artistic merit as an impressive example of its genre. The Board acknowledges that it is indeed worthy of the story-telling and other awards it has won.
    4. The game is available to everyone who plays video games, and may therefore be bought by younger persons if there is no restriction placed upon it.
    5. There are no other relevant circumstances relating to the intended or likely use of the game. As stated above, the Board has considered carefully the applicant’s comparison to other games of a similar ilk with lesser ratings, but is required to consider the publication that is before it.

CONCLUSION

42. Therefore, for the reasons given above, the availability of the image is likely to be injurious to younger persons, and is thereby determined to be objectionable except if the availability of the publication is restricted to persons who have attained 18 years of age.

43. The Board hereby directs the Classification Office pursuant to section 55(1)(e) of the Act to enter the Board’s decision in the register.
    

Dated at Wellington this 11th day of November 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. This was an application to the Board under section 47(2)(e) of the Films, Videos and Publications Classification Act 1993 (the Act) by the applicant, Joel Osman, for a review of the decision of the Office of Film and Literature Classification (the Classification Office) dated 1 July 2022.
   
2. The publication at issue is a graphic action-adventure game played from a third- person perspective. The main character Joel, controlled by the player, traverses post-apocalyptic environments, and uses firearms, improvised weapons, hand- to-hand combat, and stealth to defend against hostile humans and cannibalistic creatures known as the Infected. For most of the game, Joel accompanies a young girl, Ellie (immune to the infection) across the United States to a group known as the Fireflies. The Fireflies are hoping to use Ellie’s immunity to create a cure and save humanity. The game includes an expansion called The Last of Us: Left Behind, which follows Ellie in a shorter narrative as she searches an old shopping mall for medication to help Joel when he is injured. This part of the game includes snippets from the past as Ellie and her friend Riley head into the city after curfew.
   
3. In its decision, the Board classified the publication as objectionable except if the availability of the publication is restricted to persons who have attained 18 years of age. It held that the levels of violence, with all manner of weaponry, and the realistic and graphic depictions of death and other violence acts, as well as the impressively realism of the game, made the acts and scenes within it particularly impactful on younger audiences, as well as the level of detail of blood, gore and brain matter.
   
4. The Board rejected the submission of the applicant that it could engage in a comparison with other games of a similar ilk, but with lower ratings, noting that the role of the Board on review is to consider the publication before it.