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Films, Videos, and Publications Classification (Commercial Video on-Demand) Amendment Bill (Consistent) (Section 14) [2019] NZBORARp 63 (26 November 2019)
Last Updated: 27 May 2020
26 November 2019
LEGAL ADVICE
LPA 01 01 24
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Films, Videos, and
Publications Classification (Commercial Video on-Demand)
Amendment Bill
Purpose
- We
have considered whether the Films, Videos, and Publications Classification
(Commercial Video on-Demand) Amendment Bill (‘the Bill’) is
consistent with the rights and freedoms affirmed in the New Zealand Bill of
Rights Act 1990 (‘the
Bill of Rights Act’).
- We
have not yet received a final version of the Bill. This advice has been prepared
in relation to the latest version of the Bill
(PCO 21873/7.0). We will provide
you with further advice if the final version includes amendments that affect the
conclusions in
this advice.
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act. In reaching
that conclusion, we
have considered the consistency of the Bill with s 14 (freedom of expression).
Our analysis is set out below.
The Bill
- The
Bill amends the Films, Videos, and Publications Classification Act 1993 (the
principal Act) to require commercial video on demand
(CVoD) providers to rate
and label content consistently with New Zealand standards before providing the
content to New Zealand audiences.
- The
Bill also contains minor ancillary amendments to update the role and functions
of the Classification Office and to further specify
the content covered under
the principal Act, to ensure that CVoD content can be regulated under the
current regime.
Consistency of the Bill with the Bill of Rights Act
Section 14 - Freedom of Expression
- Section
14 of the Bill of Rights Act affirms 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. The right has been interpreted as including
the right not to be compelled
to say certain things or to provide certain
information.1
- Clause
7 of the Bill inserts new Part 3A into the principal Act. This part creates
requirements for specified CVoD providers to rate
and label content before it
may be made available to persons in New Zealand. CVoD providers are required to
rate and label their
content through the use of an online tool provided by the
Classification Office or through the use of a self-rating system approved
by the
Chief Censor.
1 See, for example, Slaight
Communications v Davidson 59 DLR (4th) 416;
Wooley v Maynard [1977] USSC 59; 430 US 705 (1977).
- Clause
6 of the Bill amends Section 8 of the principal Act to give the Chief Censor the
power to require any person to make an application
for the rating and labelling
of a film that they are distributing or exhibiting in New Zealand.
- These
requirements prima facie limit the right to freedom of expression of CVoD
providers and other persons distributing or exhibiting films, as they compel the
provision of information as a condition of allowing these providers to
distribute their content.
- However,
under s 5 of the Bill of Rights Act, a limit on a right may be justifiable where
the limit serves an important objective,
and where the limits on the right are
rationally connected to achieving that objective, limit the right no more than
necessary, and
are proportional to its importance.
- The
objective of enforcing rating and labelling regulations for commercial video and
digital content is to protect consumers, particularly
children, from
unintentionally viewing content that may prove harmful for their mental and
physical wellbeing. Rating and labelling
of content helps consumers make
informed choices about what they consider appropriate for them and their
children to be viewing.
We consider this to be a sufficiently important
objective to justify some limits on the right to freedom of expression.
- Requiring
CVoD providers to rate and label their content before making it available in New
Zealand is directly and rationally connected
to the objective identified above.
The requirements in the Bill are targeted at the CVoD market and proportionate
to the importance
of the objective. Most providers of film and video content are
already required to rate and label their content under the principal
Act, and
these changes largely reflect an updating of the Act’s classification
processes to keep up with the rise of video
on demand services.
- For
these reasons we consider any restrictions on the right to freedom of expression
within the Bill to be justifiable in terms of
s 5 of the Bill of Rights
Act
Conclusion
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act.
Edrick Child
Deputy Chief Legal Counsel Office of Legal Counsel
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