Government Censorship Bill on Objectionable Content Has Problems

Media Release 14 May 2004

The Society presented its concerns yesterday to the Government and Administration Committee over the Films, Videos, and Publications Classification Amendment Bill - a Government Bill. Society president Mike Petrus, who attended, says:

"The Society has consistently opposed moves to alter the Films, Videos and Publications Classification Act ("the Act") in any way that would allow so-called "hate speech" to be smuggled into censorship law as an additional jurisdictional "gateway" in s. 3(1) of the Act. We are concerned that this option, which is opposed by the Ministry of Justice, could open up the censorship laws as a potential vehicle to suppress the dissemination of information and opinion."

"The Society supports moves to increase the penalties that can be imposed by the Courts on those convicted of trading, supplying (including exporting) or disseminating child porn. It is critical of the lack of definition of "children" and "young person" in the Bill and has recommended that changes be made so that children are defined as those under the age of 16 years and young persons as those 16-17 and under 18 years. It wants the committee to abandon plans to weaken the power of the Censorship Office to rule the depictions of certain types of degrading sex acts involving human excrement and/or urine, as "objectionable". It does not support a proposal to reduce the number of members on the Film and Literature Board of Review from nine to six."

The Society’s submissions are set out in the appendix below.

Appendix (with footnotes [1] to [6])

Submission (No. 28) to the Government and Administration Committee

by The Society for the Promotion of Community Standards Inc.

Re: The Films, Videos, and Publications Classification

Amendment Bill.

1. Regulatory options: Alternative options on definition of "objectionable".

The Society is pleased to see that the option to remove the subject matter "gateway" contained in s. 3(1) of the Act, that currently limits the jurisdictional scope of censorship to "matters such as sex, horror, crime, cruelty or violence", has been discarded. This option to remove the gateway completely was recommended to the Government Administration Committee’s Inquiry[1] by the Human Rights Commission. The "meaning of objectionable" the Commission recommended as a "gateway", involved merely identifying whether or not material was "injurious to the public good", allowing the identification of so-called "hate speech" and other matters, to be used as a basis for banning a publication, by classifying it "objectionable", or requiring excisions to be made to it by the distributor.

The Society agrees with the Explanatory note to the bill that states:

"this option could open up the censorship laws as a potential vehicle to suppress the dissemination of information and opinion" (p. 21).

The option that Government members of the Inquiry Committee[2] recommended was that the words "such as" in s.3(1) be replaced by "includes", so that the ‘gateway’ could be widened to include such matters as "nudity, offensive language, invasion of privacy, mental illness, suicide, sexual orientation and sexual transmission of HIV". This option, like the first, would have allowed other matters such as so-called "hate speech" to be used as a basis for banning a publication, or requiring excisions.

It follows logically that this option, if it became law, "could open up the censorship laws as a potential vehicle to suppress the dissemination of information and opinion".

This regulatory option, also favoured by the Chief Censor, Mr Bill Hastings, is not even referred to in the Bill. Interestingly, this option was central to a private members bill in the name of Mr Marc Alexander United Future Party MP that was withdrawn earlier this year - The Films, Videos, and Publications Classification (Meaning of Objectionable) Amendment Bill. The Society opposed this bill and called for it to be dumped.[3]

The National Party members of the Committee recommended that the s. 3(1) ‘gateway’ be extended to include "offensive language and nudity that injures the public good".

The Bill amends the Act to remove any doubt that sexualised images of nude or partially nude children are a "matter of sex" and can therefore be classified "objectionable" under the Act. The Society takes the view that such images that constitute child pornography involve no ambiguity as to their true nature – they serve a sexual purpose for paedophiles – and we fail to see why such content could ever be considered to fall outside the gateway of "sex".

We are aware that the Chief Censor has criticised the Court of Appeal decision in Living Word and claimed that, as a consequence of its decision, his Office’s ability to place restrictions on publications containing pictures of nude children has been severely weakened, if not undermined. He has stated:

The Court of Appeal [in Living Word] has interpreted "matters such as sex" as pointing to "activity" rather than to "expression of opinion or attitude". Publications such as the David Hamilton book Holiday Snapshots containing mere nudity … do not at first glance describe, depict or otherwise deal with sex as an activity. Such publications do, however clearly express their authors’ opinions and attitudes towards young persons as objects of sexual gratification".[4]

The Society rejects the Chief Censor’s interpretation of this Court of Appeal judgement. The Court was dealing in that case with publications that canvassed the opinions and attitudes expressed by both gay rights activists and those with serious misgivings about the special rights claimed under law by these activists, to promote their lifestyle choices. The Living Word videos, as the Court ruled, contained nothing that brought them within the "sex" gateway. There was no nudity. There was no language or content that had the effect of sexually titillating an audience.

The Chief Censor has made it clear what motivates his drive to change the censorship laws and have "hate speech" included within the jurisdictional gateway.

"I don't think I can change the whole world, but I'll do what I can to limit the power of words and images to injure people. I see the Classification Office as a sort of environmental regulation agency, except that the environment we regulate is psychological and social. We don't touch expression that does society good, nor do we touch expression that does society neither good nor bad. By banning only expression that is toxic to a tolerant society, and by educating people about how to limit the power of damaging expression that isn't caught, eventually we will create a society that places a premium on tolerance and difference rather than on conformity."

"For me, the best thing about being gay is more about being out than being gay. Being out allows me to show anyone who wants to see that being openly gay will not stop you being the chief executive of a Crown entity, being the Chief Censor, being a father, raising a happy family of three kids, having a wonderful stable relationship, trying to live a life that makes the world a better place, or being a good person. Of course being openly gay attracts more than its share of battles, but I view these battles as opportunities to demonstrate in public that intolerance, fundamentalism and bigotry will never win in the long run."[5]

The Chief Censor clearly sees his role as "banning only expression that is toxic to a tolerant society". He was Deputy President of the Film and Literature Board of Review that banned the Living Word videos. They were banned because he and fellow Board members determined that the viewpoints expressed constituted so-called "hate speech" – a view that was not upheld by the Court of Appeal.

The Inquiry committee, chaired by Labour MP Dianne Yates, said that the Court of Appeal in Living Word decision had been "unacceptable" because it had the effect of allowing the expression of "hate speech." The report said the committee believed the law needed to be amended "to regain its focus of preventing 'harm' and to acknowledge the changing social values in our society."

Gay-activists have sought "to suppress the dissemination of information" by seeking to have the jurisdictional "gateway" in s. 3(1) of the Act widened to include so-called "hate speech". A push for this followed their failed attempt to have a banning order issued against two Christian videos by the Film and Literature Board of Review and subsequently upheld on appeal in a unanimous decision by the High Court; upheld on a further appeal by the distributor to the Court of Appeal.

In a landmark decision (Living Word v Human Rights Action Group), a triumph for "freedom of expression", all five Court of Appeal judges unanimously quashed the banning order that had been upheld by the High Court and remitted the matter of the classification back to the Board of Review. Nine months later the Board issued a new classification to both videos – "unrestricted". The Board was directed by the Court to take into account the fact that the subject matter of the videos did not fall within any of the subject matters listed in s. 3(1) and therefore could not be restricted in any way.

2. The Repeal of s. 3(2)(d)

The Society opposes the amendment that would repeal s. (3)(2)(d) of the Act. Publications that promote or support or tend to promote or support activities involving "The use of urine or excrement in association with degrading or dehumanising conduct or sexual conduct" [s. 3(2)(d)] should continue to be deemed objectionable. The Classification Office or Board of Review is required under current legislation to give the distributor of such a publication the opportunity to excise such offending content. A refusal to comply results in it being classified "objectionable". If the distributor disagrees with this classification he has the right to seek a review of the classification. It is this formal review forum that provides an opportunity for the distributor to make written and oral submissions, that the case for retaining scenes involving the promotion of sexual activities involving excrement and/or urine should be tested. Other interested parties can also make submissions.

The Explanatory note to the Bill states: "The current location of section 3(2)(d) is inconsistent with the harms-based approach to censorship law in New Zealand. The penalties for dealing with objectionable material would not reflect the seriousness of offending."

The Society does not accept this reasoning. The degrading and humiliation of a person (even if claimed to be consensual) in terms of s. 3(2)(d) is "objectionable" and its promotion is "injurious to the public good". We oppose the amendment that would move it to s. 3(3) of the Act. This would mean that even if the content depicted, promoted or supported, or tended to promote or support the activities, it would not be required to be excised until it reached the "objectionable" category based on the perceived "extent" and "degree" of such depictions.

The Society is aware that the rationale for removing this category (3[2][d]) of activity from the list in s. 3(2) – which includes necrophilia and bestiality – is because such activity is the only one that does not constitute criminal activity under the law. However, this is missing the point. The censorship of material that is injurious to the public good is supposed to be based on a harm-prevention basis at the very least. The existence of the pandemic of STDs including AIDS, that largely proliferate due to unhygienic and promiscuous sexual activity, should be sufficient reason for treating the depiction of such activities as "objectionable" content. The Society argues that s. 3(2)(d) should be retained within the deeming provisions of the definition of "objectionable".

The issue of how to deal with matters under s.3(d) will be illustrated by the Society via oral submission, with reference to the classifications of the films Lies and Visitor Q [see submission 28A]. The latter film is the subject of a Court of Appeal case initiated by the Society against the Board of Review.

3. The Constitution of the Film and Literature Board of Review.

The Society has some misgivings about the reduction [9 to 6] in the number of members on the Board. Under the Act the size of the quorum (5) is too close to the new [total] number proposed (6). In the case of sickness (unavailability), a Board would be unable to make a decision, if required under urgency, or within a respectable timeframe, if it did not have a pool of talented members (e.g. 3) to draw on. The Board has demonstrated extreme tardiness in making decisions (e.g. Living Word 9 months). Reducing the number of members to six may be counter-productive in terms of efficiency.

4. The matter of offensive language.

The Society wants such language to be defined clearly as obscenity and blasphemy and the matter linked to "extent" and "degree" of its use.

5. The dissemination of child pornography.

The Society is delighted with the determined efforts of the Committee to seek means of curtailing this activity. It approves of the increased penalties and the amendments to stop the exporting of such material. The Society supports the amendment to the definition of "supply" and sees this change as rectifying a glaring error in the Act.

Submission (No. 28A) to Government Administration Committee by The Society for the Promotion of Community Standards Inc.

Re: The Films, Videos, and Publications Classification

Amendment Bill. Presented 13 May 2004

1. Children and young persons. Background.

"The exploitation of children, or young persons, or both, for sexual purposes" (s. 3[2][a]). "Sexual conduct with or by children, or young persons, or both" (s. 3[3][a][iv]). "Exploits the nudity of children, or young persons, or both" (s.3[3][b]).

The Australian Office of Film and Literature Classification operates under a statute based on standards of morality whereas New Zealand made a conscious decision to base its classification system on the likelihood of injury. For example, the guidelines[6] applied by the Australian OFLC under the Classification (Publications Films and Computer Games) Act 1995, approved on 18 September 2000, set out the criteria for refusing to classify a film or video ("Refused Classification"). The criteria fall into three categories. These include films that:

Depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should be classified RC.

Depict in a way that is likely to cause offence to a reasonable adult, a person who is or who looks like a child under 16 (whether or not engaged in sexual activity), or;

Promote, incite or instruct in matters of crime or violence. [Emphasis added]

Furthermore:

"Films and videos will be refused classification if they appear to purposefully debase or abuse for the enjoyment of viewers, and which lack moral, artistic or other values, to the extent that they offend against generally accepted standards of morality, decency and propriety.

Films and videos will be refused classification:

(a) if they provide instruction in paedophile behaviour; or if they contain:

(b) depictions of child sexual abuse or any other exploitative or offensive depictions involving a person who is or who looks like a child under 16,

(c) detailed instruction in: (i) matters of crime or violence, (i) the use of proscribed drugs;

(d) depictions of practices such as bestiality." [Emphasis added]

When introducing the Films, Videos and Publications Bill 1993 ("the Act") into the New Zealand Parliament, the Minister who introduced it, the Hon Jenny Shipley, summarised its approach in these words:

"The focus of the Bill is on the likelihood of harm. It is not about prudishness, moral paternalism or restriction on information about sexuality. In that regard the government has undertaken a major shift in its philosophy on censorship, away from moral indignation alone as the only reason for censorship, towards concern about the likely impact of such material on our community, and in particular, on our young people…." [Emphasis added]

2. The concept of "the public good".

The Society takes the view that is quite wrong in law to claim that the Act takes no account of community values. The concept of "public good" embodied in s. 3(1) of the Act, not strictly defined, while focused on the likelihood of injury to that "public good", is predicated by the idea that certain material requires censorship, not because it has no connection to (moral) values, but to the extent that it is harmful to the public good AND offends against generally accepted standards of morality, decency and propriety that clearly undergird that "public good". The Hon. Jenny Shipley recognised that "moral indignation" as she called it, was not negated as a philosophical base for censorship.

The Society (SPCS) takes the view that ALL the activities listed in s. 3(2) of the Act constitute those which Parliament intended to show zero tolerance towards when they are described, depicted, expressed, or otherwise dealt with in a manner that, if made available, would be "likely to be injurious to the public good". The question of the likelihood of harm or injury caused by the availability of a publication to the public, especially in relation to "our young people", is one that the OFLC and the Film and Literature Board of Review ("the Board") have a statutory duty to address and make judgement on.

In the Society’s view, the Act, without any amendment, is sufficient to capture all forms of exploitation of children for sexual purposes under s. 3(2)(a), s. 3(3)(a)(iv) or s. 3(3)(b). The purpose of the amendment, we are told, is to try and remove any uncertainty over whether or not visual images of either partially nude or nude children constitute the publication "objectionable". Under the amendment, if one or more such image can be "reasonably capable of being regarded as sexual in nature" the publication is deemed "objectionable". However, the same reasonable and common sense approach that is required to decide whether or not a publication containing a few images of nude or partially nude children, is in fact "sexual in nature", under the amendment, is the same approach that must be applied under the current Act. The amendment fails to define children. The Act uses the words "children, or young persons, or both" in s. 3(2)(a), s. 3(3)(a)(iv) and s. 3(3)(b).

The Society wants an amendment to s. 3(2) and s. 3(3) of the Act to define the age of children in the same way as the Australian guidelines does: "a person who is or who looks like a child under 16" and "young person" to cover all those 16 years of age or older but under 18 years.

Under s. 3(3)(iv) of the Act a publication can describe depict, or otherwise deal with "sexual conduct with or by children, or young persons" without being classified "objectionable", provided the activity is neither promoted or supported or has a tendency to be promoted or supported; and the dominant effect of the publication, taking into account artist and social merit etc., is not such as to be injurious to the public good. This is as it should be. The present legislation under s. 3(3) and s, 3(4) gives the censor more than sufficient flexibility to take account of matters such as, intention, impact of the medium, purpose for which the publication is intended etc.

3. Hate speech and the widening of the "jurisdictional gateway" in s. 3(1).

"…we would particularly like the Committee to examine …

1.1 (b) whether the matters referred to in s3(2) should be limited to criminal activity (in other words, is it appropriate that paragraph (d) should remain in s3(2)?

1.2 The Living Word case particularly raises issues surrounding the extent to which s3(3)(e) now needs to be linked to a "gateway" in s3(1), and if so, the extent to which this interpretation defeats Parliament’s intention. This particular issue raises a much larger issue about the desirability of including a hate speech provision in the Act …and provid[ing] a penalty for the dissemination of hate speech."

Letter to Tim Barnett MP dated 28 February 2001. Re: FVPC Act Inquiry. >From Chief Censor Bill Hastings.

"The Court limited the scope of 'matters such as sex' so as not to cover sexual orientation, the sexual transmission of HIV, or hate speech related to them. This narrow interpretation could also be problematic when dealing with other matters often appearing in films and other publications but which are not specifically mentioned in s3(1), such as nudity, offensive language, invasion of privacy, mental illness and suicide."

W K Hastings 4 May 2001. Submission on behalf of the OFLC to Government Administration Committee re the FVPC Act 1993.

"That the Films, Videos and Publications Classification Act 1993 to allow a justifiable limitation to the New Zealand Bill of Rights Act 1990 for the purpose of censorship, to include "vilification", "hatred" and "genocide" or other matter to the "gateway" list is subsection 3(1); or, alternatively, deleting the list and stating that matter that are considered injurious to the public good are to be classified as "objectionable".

Submission by Calum Bennachie received 18/5/01 Human Rights Action Group (Respondent in Living Word). Submission No 20.

"…we believe that it is now a matter of urgent priority to amend both the FVPC Act 1993 and the Human Rights Act 1993 to guarantee that explicit mechanisms exist to censor child pornography and hate speech that will be recognised by the Court as valid when they are read alongside the Bill of Rights…. Our specific recommendations are that: … (2) Section 2 of the FVPC Act 1993 should be amended to include appropriate definitions of discrimination, hatred and genocide. (3) Section 3(1) of the FVPC Act 1993 should be amended to read: …." or otherwise deals with matters such as sex, horror, crime, cruelty, violence, discrimination, hatred or genocide in such a manner that"…

Kevin Hague, Executive Director. 17 May 2001 NZ Aids Foundation. (Intervenor Status in Living Word case. Supported respondent)

"NZAF’s position in response to this [the Court of Appeal decision in Living Word] is that we would like Parliament to revisit the FVPC Act as a matter of urgency. We therefore first want to encourage the Board to ask the Government to restore the status quo that was almost universally believed to exist before the Court of Appeal issued its judgement. We have also written to the Minister of Justice to request that the Government amends the FVPC Act so as to include hate literature unequivocally – defined of course so as to include videos, sound recordings etc – within the purview of the Censorship Office and Board…. [There is] the need to restore a complete hate speech jurisdiction to the FVCP Act by Parliamentary amendment…"

Tony Hughes

Research Director

30/11/00 New Zealand AIDS Foundation (Intervenor Status in Living Word case. Supported respondent). Letter to Film and Literature Board of Review

Tabled 18 October 01 with Government Administration Committee

5. "… Banning only expression that is toxic to a tolerant society…"

"I don't think I can change the whole world, but I'll do what I can to limit the power of words and images to injure people. I see the Classification Office as a sort of environmental regulation agency, except that the environment we regulate is psychological and social. We don't touch expression that does society good, nor do we touch expression that does society neither good nor bad. By banning only expression that is toxic to a tolerant society, and by educating people about how to limit the power of damaging expression that isn't caught, eventually we will create a society that places a premium on tolerance and difference rather than on conformity…"

http://www.gaynz.com/at_a_glance/Bill_Hastings.asp

6. S. 3(2)(d) of the Act and the Classification of the films "Visitor Q" and "Lies".

The Japanese sex-violence film "Visitor Q" was classified R18 and restricted to film festivals and tertiary media/film study courses, in a decision issued by the Board in 2002. That classification is the subject of an appeal by the Society to the Court of Appeal. The Board recognised that the film contained all the activities listed in s. 3(2) of the Act with the one exception of bestiality. It issued no warning note for the film. The Board also issued a decision in relation to another film with similar content called "Lies" ruling it objectionable.

The following extracts are quoted from:

Decision of the Film and Literature Board of Review. Decision Number Four. 24/3/03. An Application for Review by the New Zealand Film Festival Trust of the video/film recording entitled "Lies".

Meeting at Wellington on 4 July 2002 and 18 July 2002.

Appearance: Mr Bill Gosden, Director of the New Zealand Film Festival Trust.

[2] In decision number one dated 20 September 2002 the Board decision was set out in paragraphs 32 to 34 of the decision as follows:

[32] The Board unanimously holds the film/video "Lies" to be objectionable unless one excision is made in accordance with s 32 of the Act. The Board also finds that if the excision is made to its satisfaction, the balance of the film will be classified as restricted to persons who have attained the age of 18 years.

[33] The excision required is to remove the sequence which shows the main characters using excrement in association with sexual conduct. The excision is to remove the part of the scene where the man requests the woman to suck his penis with excrement on it. The couple kiss and appear to exchange excrement between their mouths. They are then seen on a train and discuss their experience of coprophilia enthusiastically.

[34] The excision is to commence from 1:21:07 (hours, minutes, seconds) after the man stands up and before he says "suck it" and is to end at 1:22:42 (hours, minutes, seconds) after the woman says "no-one else will eat my shit" and the couple is depicted kissing.

[3] Pursuant to section 33(3) of the Act the Board allowed 20 working days for the distributor or agent to advise the Board of its decision.

[4] Pursuant to decision number two dated 18 October 2002 at the request of the New Zealand Film Festival Trust by way of a letter dated 14 October 2002 the time limit was extended for 60 working days, commencing on 18 October 2002.

[5] By way of a letter dated 31 January 2003 the New Zealand Film Festival Trust advised that "The New Zealand Film Festival Trust does not accept the Film and Literature Board of Review excision notice relating to the film Lies dated 20 September 2001. The letter further states: We understand that by not accepting the cut, the Board will classify the whole publication objectionable."….

THE DECISION

[7] The Board unanimously confirms its decision to find the film/video "Lies" to be objectionable as the New Zealand Film Festival Trust has declined to agree to the excision the Board required in its decision dated 20 September 2002…..

CONCLUSION

[16] The Board finds the film Lies to be objectionable in its current form."

When reviewing the film Lies, The Board was concerned with a similar publication to "Visitor Q", in this case, sequences concerned with coprophilia. The Board rejected Mr Bill Gosden’s submission in para. 18 that "a film maker has a right to depict characters who say they enjoy eating excrement" and that the classification cut has "deprived film festival audiences of the chance to experience the full measure of Jang Sun-Woo’s satiric view of social disaffection".

The Board concluded in par. 90 that scenes involving the types of activity referred to in s.3(2), form a "major part of the publication so the extent and degree of them in Visitor Q is significant" and "are lengthy and major parts of he film."

If the amendment to the Act that is proposed, to repeal s. 3(2) is accepted, this will significantly weaken the law in dealing with the activities listed under s. 3(2)(d). This holds true even if the matter is dealt with under s. 3(3) as proposed. While it is true that only s. 3(2)(d) deals with a matter that is NOT a criminal offence, the question of whether or not to retain it in s. 3(2) does not turn on this issue. The promotion of idea of youth suicide is not punishable by law and yet it clearly does injury to the public good and should be treated as "objectionable" content when it is promoted or supported or there is a tendency towards promotion and support.

The Society for the Promotion of Community Standards Inc.

ENDS

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