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Police - 2 images [2022] NZFLBR 3 (28 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 publications which are the subject of the review are two JPEG images titled prevent teen pregnancy.jpg and Strange t-shirt.jpg (“two images”).

3. The first image consists of text comprising a slogan that appears to be available to be printed on a customised design t-shirt. The slogan reads “prevent teen pregnancy fuck a twelve year old provided she hasn’t been 12 for more than 3 months” (the “prevent teen pregnancy jpg” to use the Classification Office nomenclature).
   
4. The second image is a small picture of a man wearing a white t-shirt with an image on the front showing a small headless torso of a young female child being held under the arms by the arms of a male, with the same male’s penis shaft seen to be penetrating the child’s vagina (the “strange t-shirt jpg” to use the Classification Office nomenclature). The image shows the man from the waist up. Although the man’s genitals and the child are somewhat pixelated, it remains possible to determine easily what is happening. The intent of the image seems to be to insinuate that the man’s head is the head of the man on the t-shirt and thus it gives the illusion that the man is penetrating the child.
   
5. On an unknown date, the Office of Film and Literature Classification (the “Classification Office”) classified the first image as age restricted,1and the second image as unrestricted under the Act.
   
6. 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
   
7. The applicant, as the person who submitted the applications to the Classification Office has applied for review under section 47(2)(a) of the Act.
   
8. The Board was required to conduct a review as soon as possible, to examine the publication, and to determine its classification3. 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. The submissions do not make clear the age restriction given by the Classification Office.

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

3 Section 52

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

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.5
   
10. 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.
    
11. 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 two images simply by viewing them.
    

THE KEY LEGAL CONSIDERATIONS

12. Key legislative provisions referred to are set out in the attached schedule to this decision.
    
13. The Board is first required to consider in terms of section 3(1) whether the publication describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty, or violence. If the consideration results in a negative answer, then the Board must classify the publication as unrestricted.8
    
14. If the section 3(1) consideration just referred to results in an affirmative answer, then the next consideration is whether the publication is likely to be injurious to the public good.9
    

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.

9 Ibid.

15. This then requires the Board to consider whether the publication is deemed objectionable under section 3(2). This provision has been interpreted by the Court of Appeal,10 which emphasised the high threshold to be overcome for the provision to apply, citing the importance of freedom of expression. The Court of Appeal emphasised that description and depiction of a prohibited activity do not of themselves necessarily amount to promotion or support of that activity.
    
16. If the Board decides that it must deem the publication to be objectionable for the purposes of the Act, then it need not consider any further. It must classify the publication as objectionable.
    
17. If the Board decides that the publication is not deemed by the Act to be objectionable, then it must determine whether the publication is objectionable, or should be given one of the other 2 possible classifications (unrestricted, or objectionable except in specified circumstances).
    
18. When making a determination as to whether the publication is objectionable, the Board must give particular weight to the matters set out in sections 3(3) and must consider the matters set out in section 3(4).
    

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.”

SUBMISSIONS

19. The applicant submitted that, in summary:11
    
    1. The strange t-shirt jpg is objectionable as it depicts a naked baby and is of a sexual nature under section 3(1A) of the Act.
       
    2. The prevent teen pregnancy jpg is objection because it expresses matters of sexual exploitation of children by words/text in a manner that the availability of the publication is likely to be injurious to the public good.
       
    100. The dominant effect of both images is the normalising of child sexual exploitation material.
         
    4. Both images are a digital format and can be shared via social media and the internet thus impacting on the community.
       
    5. Both images would not merit, value or be of importance in regard to artistic or educational matters in the present day community.
       
    6. Both images are targeted at adult heterosexual males and are created for the purposes of satisfying masturbatory fantasy.
       
20. The Classification Office submits, in summary:
    
    1. Both images pass through the section 3(1) gateway as they deal with sex.
       
    2. The prevent teen pregnancy jpg contains a “joke” about preventing teen pregnancies by having sex only with girls younger than 12 years and 3 months, the implication being that any pregnancy will run its course before
       

11 Note that the Board has disregarded the submissions of the application relating to the prior convictions of the person found in possession of the two images. The Board’s function is to assess the classification of the two images on their face in accordance with the Act.

the victim becomes a teenager. While the statement deals with paedophilia, it cannot be considered to promote or support the exploitation of child for sexual purposes but, rather, is a provocative and intentionally offensive, tasteless joke. It does not warrant being deemed objectionable.

Further, those mature enough to understand the t-shirt will recognise that it is a crude, tasteless joke which is unlikely to have a significant or lasting impact on the reader’s attitude towards child sexual exploitation. Younger viewers are unlikely to understand it or simply be confused by it.

100. The strange t-shirt jpg does not involve the abuse of a real child, which would be inherently promotional of the activity. Rather, it presents the activity as a subject of transgressive and crude humour. There is nothing about the man’s demeanour which creates a promotional or supportive effect and therefore also does not warrant being deemed objectionable.
     

Further, most reasonable adult viewers will readily recognise the image as crude, taboo-breaking, transgressive humour depicted with a low level of realism. It is unlikely to be taken seriously and is likely to attract anger or derision rather than having a promotional or supportive effect.

4. Jokes and other forms of humour can have a normalising or trivialising effect in relation to serious issues such as child sexual exploitation. However, the potential for harm must carefully balanced against the right to freedom of expression as set out in NZBORA.
   

ANALYSIS

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

21. 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 sex.

Additionally, in terms of section 3(1A), the strange t-shirt jpg contains a visual image of a child who is partially nude in a pose which is reasonably capable of being regarded as sexual in nature. The answer to the question posed is therefore “yes”.

Should the publication be deemed objectionable?

22. 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).
23. The matters referred to in paragraphs (b)-(e) of section 3(2) do not apply to this case. The live issue is section 3(2)(a), namely whether the one or both of the two images promote or support, or tend to promote or support, the exploitation of children or young persons for sexual purposes, such that one or both should be deemed objectionable.
24. 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.
25. The view of the Board is that the required threshold for a deeming of objectionability under section 3(2) is not met in respect of either of the two images. Although both images are crude, tasteless, and certainly contribute to the sexual exploitation of young children and young persons by a perception that such jokes, and the wearing of a t-shirt with such a base depiction on it, is normalised, there is nothing about either image that would meet the high threshold for promotion or support or a tendency to promote or support.
    

FURTHER ANALYSIS

26. The Board therefore moved onto consider whether to determine the either of the two images objectionable, considering weight to be given to any of section 3(3) factors and considering the matters in subsection (4).
27. The Board considered in this analysis that the prevent teen pregnancy jpg deals with sexual conduct with children or young persons in terms of section 3(3)(a)(iv). The

strange t-shirt jpg depicts sexual violence (section 3(3)(a)(ii)), sexual conduct of a dehumanising nature (section 3(3)(a)(iii)), sexual conduct with a baby (section 3(3)(a)(iv)), exploits the nudity of a baby (section 3(3)(b)), and promotes or encourages the criminal act of sexual conduct with a minor (section 3(3)(d)).

28. In this regard, the Board has particularly noted the crude and offensive nature of the alleged “jokes” in both of the two images. The fact that one is depicted on a t-shirt, and the other is of a form which can apparently be customised to be printed on a t- shirt, adds to their base and distasteful nature. There is no doubt that both images describe or depict sexual conduct of a dehumanising nature, and with children or young persons.
29. There is a chance both images, if worn on a t-shirt, could encourage and normalise sexual conduct with minors. The strange t-shirt jpg explicitly depicts sexual violence, while the phrase in the prevent teen pregnancy jpg supports an act of sexual violence.
30. All those aspects mean that unrestricted availability of the strange t-shirt jpg is injurious to the public good in the Board’s view. The majority of the Board also considered that the unrestricted availability of the prevent teen pregnancy jpg is injurious to the public good.
31. Regarding the section 3(4) matters, the Board considers:
    
    1. The dominant effect of both of the two images is to depict a base and crude form of offensive “humour”.
    2. The impact of the medium, both jpeg images, is that both can be easily shared and disseminated.
    100. Neither image has any merit, value or importance.
         
    4. It is not readily apparent to whom either image is intended or is likely to be made available, or their purpose, although both are suggestive of being images that can be printed on a t-shirt or used in paedophilia fantasy if received in jpeg form.
    5. There are no other relevant circumstances relating to the intended or likely use of either image. Extraneous information relating to prior convictions of the

person found in possession of the two images has not been taken into account by the Board.

CONCLUSION

32. Therefore, for the reasons given above, the availability of either of the two images is likely to be injurious to the public good, and both are thereby determined to be objectionable, the strange t-shirt jpg by the full Board, and the prevent teen pregnancy jpg by a majority of the Board.
    
33. The Board hereby directs the Classification Office pursuant to section 55(1)(e) of the Act to enter the Board’s decision in the register.
    

Dated at Wellington this 28th day of 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)(a) of the Films, Videos and Publications Classification Act 1993 (the Act) by the NZ Police for a review of the decision of the Office of Film and Literature Classification (the Classification Office).
   
2. The publications which are the subject of the review are two JPEG images titled prevent teen pregnancy.jpg and Strange t-shirt.jpg (“two images”).
   
3. The first image consists of text comprising a slogan that appears to be available to be printed on a customised design t-shirt. The slogan reads “prevent teen pregnancy fuck a twelve year old provided she hasn’t been 12 for more than 3 months” (the “prevent teen pregnancy jpg” to use the Classification Office nomenclature).
   
4. The second image is a small picture of a man wearing a white t-shirt with an image on the front showing a small headless torso of a young female child being held under the arms by the arms of a male, with the same male’s penis shaft seen to be penetrating the child’s vagina (the “strange t-shirt jpg” to use the Classification Office nomenclature). The image shows the man from the waist up. Although the man’s genitals and the child are somewhat pixelated, it remains possible to determine easily what is happening. The intent of the image seems to be to insinuate that the man’s head is the head of the man on the t-shirt and thus it gives the illusion that the man is penetrating the child.
   
5. In its decision, the Board classified the strange t-shirt jpg as objectionable. The majority of the Board also classified the prevent teen pregnancy jpg as objectionable.
   
6. In this regard, the Board has particularly noted the crude and offensive nature of the alleged “jokes” in both of the two images. The fact that one is depicted on a t-shirt, and the other is of a form which can apparently be customised to be

printed on a t-shirt, adds to their base and distasteful nature. There is no doubt that both images describe or depict sexual conduct of a dehumanising nature, and with children or young persons.

7. There is a chance both images, if worn on a t-shirt, could encourage and normalise sexual conduct with minors. The strange t-shirt jpg explicitly depicts sexual violence, while the phrase in the prevent teen pregnancy jpg supports an act of sexual violence.