Appeal On French Sex-Violence Film – ''Baise-Moi''

The Society for the Promotion of Community Standards (SPCS) lodged a Notice of Appeal (see Appendix II below) with the Court of Appeal late Monday afternoon, 8 December 2003, against the decision of the High Court of New Zealand dated 11 November 2003 (Goddard J, CIV-2002-485-235). That decision dismissed the Society’s appeal – based on four alleged errors in law – brought under s. 58 of the Films, Videos, and Publications Act 1993 (“the Act”) against the second classification decision of the Film and Literature Board of Review (“the Board”), dated 1 November 2002, made with respect to the sex-violence film “Baise-Moi”. Three of the grounds of the appeal in the unsuccessful High Court case form the basis of the case being advanced by the Society to the Court of Appeal. Counsel for the appellant (the Society) is Mr Peter McKenzie QC and its solicitor is John Bryson.

The Society President Mike Petrus says, “the Society’s new appeal will be a crucial test case which both raises critical questions concerning New Zealand censorship law and significant public interest issues. It will highlight in particular sections 3 and 26 of the Act, which the Office of Film and Literature Classification (OFLC) and the Board have failed to apply properly in the classification of the growing number of films, videos and DVDs containing sexual violence and graphic violence juxtaposed with explicit sex.”

The Society is still waiting for the decision of the Hon. Justice Goddard with respect to its other High Court appeal (CIV 2003-485-238) against the Board’s classification decision on the Japanese sex violence film “Visitor Q”. The Board cleared the film for film festival screenings and noted that it had a lengthy feature involving necrophilia (“sexual conduct with or upon the body of a dead person” – a woman) and “the use of [human] excrement in association with degrading or dehumanising sexual conduct” [with the female corpse]. The outcome of that case, heard by Justice Goddard on 7 July 2003, the day before she considered the appeal on “Baise-Moi”, may have some bearing on the present case being advanced by the Society to the Court of Appeal.

Three of the objectives of the Society from its constitution, advanced as a result of these litigations, are:

(a) To focus attention on the harmful nature and consequences of sexual promiscuity, obscenity, pornography and violence.

(b) To uphold and press for the proper enforcement of applicable law and its amendment where the law is ineffective.

(c) To support responsible freedom of expression which does not injure the public good by degrading, dehumanising or demeaning individuals or classes of people

APPENDIX I

Background to “Baise-Moi” Appeal

“Baise-Moi” (literally translated “F##k Me”) was submitted in video format for classification on 20 March 2001 by the Secretary of Internal Affairs, as directed by the Chief Censor, under s13(1)(b) of the Act. Metropolis Films Ltd, based in Auckland, whose Managing Director is Gordon Adam, is the New Zealand distributor of this film and did not submit the publication to the Film and Video Labelling Body for classification. This is required by law if the distributor intends to supply the film to the public or make it available for public display.

Last year the Society successfully appealed in the High Court under s. 58 of the Act, the Board’s first classification decision on “Baise-Moi” dated 13 March 2002. The Board’s decision had downgraded the classification from that issued by the Classification Office (OFLC) on 20 August 2001. The Board, following an appeal by the Society dated 29 October 2001 against the OFLC decision, under s. 47 of the Act, classified the film under s. 55 as a R18 for theatrical release (with no additional restrictions other than the age restriction). This meant that identical copies of the film on video and DVD formats could lawfully be supplied to the public (via retail sales, rental or loan) for home viewing.

In his reserved decision on the Society’s appeal to the High Court, dated 23 July 2002 (AP76/02), the Hon Justice Hammond referred the matter back to the Board for reconsideration after he determined that its classification decision contained a legal error “in failing to have regard to the impact of the various medium of formats in which this film might be presented” (including video, DVD and television). He also ruled that the Board may need to consider imposing conditions under s27(5) on the display of Baise-Moi and would need to do so in other mediums.

Prior to the successful substantive High Court hearing on 12 June 2002, Justice Hammond had granted an interim restriction order on 12 April 2002 with respect to the film, pursuant to s. 67 of the Act, following an application by the Society. (This prevented the seven scheduled screenings of “Baise-Moi” going ahead at the 2002 Beck’s Incredible Film Festival which ran in Auckland and Wellington). The heart of Justice Hammond’s ruling was that there was an “arguable case” that the Board erred in law by first finding the film objectionable, and then widening the public access to it. “The ‘disjunction’ between the acknowledged injurious effects of the film and the remedy is very striking”, he wrote.

The most recent appeal to the High Court heard by the Hon. Justice Goddard on 8 July 2003 was based on four alleged errors of law in the Board’s second classification decision (issued under s. 55 of the Act on 1 November 2002). That decision, like the Board’s first (dated 13 March 2002), granted the film a restricted classification (R18) under s. 23(2)(i), enabling it to be screened in any public cinema, but differed from the former in its finding “that the presentation of the publication for hire or sale in video or DVD form is objectionable unless conditions are attached to its release.” [par. 179]. These “conditions” went beyond restricting the publication based solely on age, as in the case of theatrical uses.

Consequently the Board, in contavention of s. 26 of the Act, applied different classifications to different formats of the film even though they were “identical in content”. In other words, the need seen by the Board to limit the use of video and DVD for non-theatrical uses (DVD and video) to “educational purposes” [par. 193], such as tertiary film/media study courses, means that different classifications are imposed on different formats of the identical film, contrary to s. 26 of the Act.

The OFLC had initially classified the film under ss. 23(2)(i)-(iii) of the Act as “objectionable” unless restricted only to film festivals and tertiary media/film studies courses, and in both cases limited it to audiences 18 years of age and over.

S. 3(4)(a) Dominant effect of the publication as a whole

The Society, opposed to the release of the uncut version of “Baise-Moi” to film festival audiences, has respectfully adopted the conclusion of the Classification Office (OFLC) which described the “dominant effect of the publication as a whole” under s. 3(4)(a) as follows:

“The overwhelming effect, however, remains the shocking and unrelenting presentation of violence, much of which has been sexualised due to the association of these images with those of explicit sex. Many of the sexual images are presented using constructs commonly seen in explicit material intended for adult sexual arousal.”

The Society respectfully accepts the description of the film made by the Australian Review Board in its decision dated 10 May, 2002, which banned the film – “the film was of almost unrelenting violence … Sexual violence was detailed and the rape scene was prolonged [and] was one of very high impact… [and] some [scenes] were gratuitous and exploitative.”

The Society contends that the Board failed to address itself to the issue of “the dominant effect of the publication as a whole”, as it was required to do under s. 3(4)(a), when it wrote:

“The dominant effect of the publication is a bleak story with a view that just deserts are meted out in the end to Nadine and Manu. The perpetrators have a certain awareness – ‘we are leaving a trail’”.

S. 26 of the Act

Section 26 of the Act states that “the classification given to a publication under section 23 or 55 or 56 of this Act shall apply to every copy of that publication that is identical in content with it.” The Society alleges that the Board contravened the Act by classifying the video/DVD formats of the film differently to the cinemagraphic format, despite the fact the content is identical. This classification was issued even though the film had not, nor has yet, been released on DVD or video in NZ, or been submitted by the distributor – Metropolis Films Ltd - to the Film and Video Labelling Body for classification in either of these formats.

The Society contends that because the Board in its second classification deemed the video and DVD formats of “Baise-Moi” “objectionable” under s. 3 of the Act, based on certain content matter and its potential for causing injury to the “public good” if made available to adults in homes; then in line with s. 26 of the Act, any theatrical performance of the identical content should have received the same classification.

According to Section 2 of the Act “Film” means:

“a cinematograph film, a video recording, and any other material record of visual moving images that is capable of being used for the subsequent display of those images; and includes any part of any film, and any copy or part of a copy of the whole or any part of a film.”

The Society president, Mike Petrus, contends that “three important questions of law [set out below] that are of significant interest to a substantial section of the public, will be dealt with in the current appeal involving “Baise-Moi”.

APPENDIX II

IN THE COURT OF APPEAL OF NEW ZEALAND

UNDER The Films, Videos And Publications Classification Act 1993

IN THE MATTER of a Determination of the Film and Literature Board
of Review dated 1 November 2002

AND

IN THE MATTER of an appeal from that Determination

SOCIETY FOR THE PROMOTION OF
COMMUNITY STANDARDS INC.

Appellant

_____________________________________________________________________

NOTICE OF APPEAL
Date: 8 December 2003
_____________________________________________________________________

TAKE NOTICE that the Society for the Promotion of Community Standards Inc., the appellant herein, HEREBY APPEALS against that part of the decision of the High Court of New Zealand dated 11 November 2003 (Goddard J, CIV-2002-485-235) that relates to the three grounds of appeal dealt with in the judgment (paragraphs [6] to [38]) UPON THE GROUNDS that the judgment is erroneous in law.

Grounds of appeal

First ground, s.(3)(4)(a) – the dominant effect of the publication as a whole

1. The learned Judge was in error in holding that the Board considered dominant effect and that the appellant’s challenge was directed only to the weight that the Board accorded to that factor in reaching its ultimate classification decision (para.[11]). The appellant’s challenge was directed to the Board’s not having considered dominant effect. This is required by s.3(4).

2. Words used by the Board are not capable, as a matter of law, of being interpreted as constituting a statement of the dominant effect of the film and the learned Judge was in error in holding that the words clearly constituted a finding of dominant effect and are not simply a description of content (para.[12]). There was no evidence before the Court which could support this finding made by the learned Judge.

Second ground – failure to consider the impact of the television medium

3. The learned Judge wrongly treated the issue before her as being whether the Board had jurisdiction over the classification of programmes for television. The appellant does not and did not so contend. The issue before the Court was whether the Board in being required by s.3(4)(b) to consider, when making its classification of the film, “the impact of the medium in which the publication is presented”, was required to have regard to both the present and likely use of the publication in the television medium.

4. The learned Judge was in error in holding that the Board is not required to have any regard to likely television use when classifying a film for the purposes of the Films, Videos, and Publications Classification Act 1993.

The Third ground – wrongly placing different restrictions for classification purposes in respect of different mediums or formats of the same classification

5. The learned Judge wrongly held that the Board had acted correctly in accordance with law when making two different classifications in relation to different mediums or formats of the same publication.

6. The learned Judge in so holding failed to have regard to the provisions of s.26 or the scheme of the Act.

7. The learned Judge in making her finding, on this ground wrongly considered as relevant an undertaking by the distributor (Metropolis Films Limited) that it would refer any video/DVD release back to the Classification Office for classification.

DATED at Wellington this 8th day of December 2003

P.D. McKenzie QC
Counsel for the Appellant

TO: The Registrar of the Court of Appeal at Wellington
AND TO: The Registrar of he High Court
AND TO: The Film and Literature Board of Review by its Counsel, Mr JAL
Oliver and the Crown Law Office
AND TO: Metropolis Films Limited by its solicitor

THIS notice of appeal is filed by JOHN EDWARD BRYSON solicitor of the firm of Bryson & Co. Solicitors, First Floor, Kayel Building, Margaret Road, Raumati Beach.

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