Government Censorship Bill Goes Soft on Filth

Media Release 25 May 2004

The Society wants the Minister of Justice, the Hon. Phil Goff, to immediately dump a controversial change contained in a Government Bill that proposes changes to our censorship laws. It also calls on him to make amendments that clearly define the terms "children" and "young persons" as used in s. 3 of the principal Act (The Films, Videos and Publications Classification Act 1993).

The Society argues that the change Mr Goff and his officials advocate would considerably weaken the power of New Zealand censorship bodies to rule certain publications "objectionable" including those that "promote or support or tend to promote or support" "The use of urine or excrement in association with degrading or dehumanising conduct or sexual conduct" (s. 3[2][d] of the Act).

The Society wants Mr Goff to insist on an amendment to s. 3(2) and s. 3(3) of the principal Act to clearly define the age of children in the same way as the Australian censorship guidelines does: "a person who is or who looks like a child under 16" and "young person" to cover all those 16 -18. At present neither the principal Act nor the Bill contains any definitions.

Society president Mike Petrus says:

"These are serious omissions and the planned repeal of s. 3(2)(d) is unacceptable given the Minister's claim to be so concerned about the proliferation of child pornography and degrading and dehumanising sexual material that is injurious to the public good. This Bill, while having many excellent features, illustrates how out of touch he and his Government and officials are with acceptable prevailing community standards and social attitudes towards that which is injurious to the public good."

The Government Administration Select Committee is currently considering the Films, Videos, and Publications Amendment Bill that would repeal part of s. 3(2) of the principal Act that specifically identifies certain activities such as necrophilia (sex with a corpse), bestiality (sex with an animal) and paedophilia (sex with children) as "objectionable", if there is any tendency whatsoever in the depiction of the activity to promote or support it.

Dehumanising or sexual conduct involving urine or excrement is one of the six categories of conduct listed in s. 3(2) of the Act (see appendix I below). When publications that are submitted for classification are found by the censors to promote these activities, they have a statutory duty to deem them "objectionable" under the current law. The distributor(s) can be given the option to agree to make excision(s) to the publication and if he refuses to, or fails to formalise such an agreement within the statutory time frame, the publication is classified objectionable. It cannot be supplied to the public without the required cuts being made. A distributor convicted for supplying such material or a person convicted of having possession of the material can receive a considerable fine.

The Bill, if enacted into law, would see s. 3(2) repealed and this category of conduct would be moved into s. 3(3) of the Act. This would mean that a publication containing sexual and/or dehumanising conduct involving sex and/or excrement could only be ruled objectionable based on the "extent" and "degree" of depiction of it. In other words, even if such activity was strongly supported and promoted, this factor would no longer provide any definitive basis for the censor to rule it "objectionable". The depiction of the activity would be relegated to a lower level in the hierarchy of activities considered possibly "injurious to the public good". The chances of such depictions getting cut would be very much reduced.

The track record of the censorship bodies – the Office of Film and Literature Classification and the Film and Literature Board of Review - since 1993, provides proof that they very rarely classify a publication "objectionable" based on an application of s. 3(3) of the Act.

The film Lies and the NZ Film Festival

One film recently "captured" under s. 3(2)(d) and ruled "objectionable" was the Korean film Lies. It serves to illustrate the Society's concerns. It was submitted to the Classification Office by the NZ Film Festival, directed by Mr Bill Gosden. It was ruled objectionable due to the depiction of sexual conduct involving human excrement. The film required cuts, which were made prior to its festival screenings.

However, clearly unhappy with the Classification Office's decision, Mr Gosden, the NZ Film Festival Trust chairperson, appealed the decision to the Film and Literature Board of Review. Mr Gosden lost his appeal. The Board classified Lies "objectionable" upholding the decision of the Classification Office [see Appendix II below].

When reviewing the Korean film Lies, The Board was concerned with 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".

If the censors had classified this film applying the amendments proposed in the Bill, it would not be possible for the film Lies to be classified "objectionable". The extent and degree of depiction is not sufficient to capture it under s 3(3). Increasing numbers of films containing such material would be screened, foisting on unsuspecting filmgoers material that is injurious to the public good.

Harm-based approach to Censorship

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".

It is aware that the rationale for removing this category (3[2][d]) of activity from the list in s. 3(2) 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" in the Act. The Courts currently have sufficient powers applying the Act to apply their discretion, in the light of the nature of the content matter, when issuing fines to those convicted of supplying or possessing publications classified "objectionable".

The Society does endorse the increased penalties proposed under the Bill with respect to the possession, trading and dissemination of, child pornography.

Appendix I

S. 3(2) of the FVPC Act 1993 states: "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.

Appendix II

Quotations from Board of Review's classification decision on the film Lies.

(Meeting held 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¦..

ENDS

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