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categories of injury


Article by former Chief Censor Bill Hastings

15.08.2008

Contents

A: Films, Videos, and Publications Classification Act 1993 as amended in 2005

B: Public Perceptions of Injury to the Public Good

C: Judicial Interpretations of Injury to the Public Good

D: Examples of “Likelihood of Injury” Statements made by the Film and Literature Board of Review and the OFLC

A.  Films, Videos, and Publications Classification Act 1993 as amended in 2005

There are now three categories of injury. All of them require censors to assess how the availability of the publication, rather than the publication itself, is likely to cause one of the three categories of injury. 

  • Availability requires an audience. Available to whom? Will this publication affect a group of people so adversely that its availability to them will injure the public good? It requires censors to describe how making a publication available to any particular group of people is likely to injure the public good.
  • Likelihood does not require scientific proof, but it requires more than a possibility, more than a scintilla, more than a hunch.

Censors must identify how the public good is likely to be injured by the unrestricted availability of a publication. Will the public good be injured if a publication is available for anyone to peruse? If so, how? Will the public good be injured if a publication is available for a particular group of people, such as young persons, or children, to peruse? If so, how?

The resulting classification will then be tailored to remedy the identified injury and no more. The likelihood of injury from stitching with a needle is adequately minimised with a thimble, not a cast. The resulting classification will have minimised the identified risk of injury to the public good that would have eventuated if the publication’s availability had not been restricted to a category of persons.

If censors cannot identify a risk of injury to the public good if the publication is made available to other groups of people, then the publication must be made available to them.

1. Injury to the public good

Two categories of injury require censors to identify how the unrestricted availability of a publication is likely to cause injury to the public good. The first, and most familiar, category of injury applies to publications that pass through one or more of the sex, horror, crime, cruelty and violence gateways:

3. Meaning 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.

This is the only category of injury that can result in a ban. It requires censors to identify how the public good is likely to be injured by the publication’s unrestricted availability.

2. Injury to the public good for reasons specified in the Act

The second category of injury requires censors to demonstrate how the unrestricted availability of a publication is likely to cause injury to the public good for particular reasons specified by Parliament:

3B. Publication may be age-restricted if likely to be injurious to the public good for specified reasons – . . .

(2) This subsection applies to a publication that contains material specified in subsection (3) to such an extent or degree that the availability of the publication would, if not restricted to persons who have attained a specified age, be likely to be injurious to the public good for any or all of the reasons specified in subsection (4). . .

(4) The reasons referred to in subsection (2) are that the general levels of emotional and intellectual development and maturity of persons under the specified age mean that the availability of the publication to those persons would be likely to –

a) cause them to be greatly disturbed or shocked; or

b) increase significantly the risk of them killing, or causing serious harm to, themselves, others, or both; or

c) encourage them to treat or regard themselves, others, or both, as degraded or dehumanised or demeaned.

This category requires injury to the public good, but instead of having to explain why the unrestricted availability of a publication is likely to injure the public good, censors are required to show how the availability of a publication to young persons is likely to cause them to be greatly disturbed, or to increase the risk of them killing themselves, or to encourage them to regard themselves as demeaned.

3. Injury to young persons

The third category of injury requires censors to demonstrate how the availability of a publication containing highly offensive language would be likely to cause harm, not to the public good, but to persons under a specified age:

 

3A. Publication may be age-restricted if it contains highly offensive language likely to cause serious harm – . . .

(2) This subsection applies to a publication that contains highly offensive language to such an extent or degree that the availability of the publication would be likely, if not restricted to persons who have attained a specified age, to cause serious harm to persons under that age.

Unlike the first two categories, this category of injury is not concerned with injury to the public good.  It is concerned with injury to young persons.  It is not possible to ban a publication for language.  A publication can be restricted for language only if its availability is likely to cause serious harm to young persons.

B. Public Perceptions of Injury to the Public Good

Unlike categories 2 and 3, the first category of injury to the public good is relatively open-ended. Parliament has not provided a checklist in s3(1) of how the public good is likely to be injured by a publication’s unrestricted availability. The OFLC regularly conducts research on how members of the public think that particular publications might injure the public good. Below are examples of the various ways members of the public have stated that the public good might be injured by the availability of particular publications:

  1. From the 2001 and 2002 OFLC research reports on sexually explicit material:

A publication is likely to be injurious to the public good if it

  • creates or reinforces inaccurate stereotypes about women
  • creates unrealistic expectations about sexual behaviour and appetite
  • increases the risk of inappropriate behaviour
  • promotes unsafe sex which in turn undermines personal and public health
  1. From the 2000 OFLC research report on a variety of mainstream material:

A publication is likely to be injurious to the public good if it

  • encourages violent tendencies in society through repeated exposure to violent imagery
  • erodes widely agreed moral standards
  • encourages young people to have sex
  • changes attitudes to women in a negative way
  • increases the risk of copycat behaviour
  • exposes people to bad ideas they might otherwise never have been exposed to
  • offends or shocks viewers with unexpected language or images
  • frightens, upsets or disturbs particularly younger viewers

These are public perceptions, not scientifically proven facts. Scientific studies tend to show that a publication’s availability is more likely to injure the public good in terms of its likely effect on attitude rather than on behaviour.

C. Judicial Interpretations of Injury to the Public Good

The likelihood of injury to the public good in s3(1) must be related back to the gateway through which the publication came. The injury to the public good caused by the unrestricted availability of a publication that deals with matters of sex can only be phrased in terms of sex. It cannot be that publication’s treatment of crime or cruelty that is injurious. 

from Living Word Distributors Ltd v Human Rights Action Group [2000] 3 NZLR 570 decision of the majority of the Court of Appeal:


50. . . . In short, it seems that the Full Court erroneously accepted that the Board was not obliged ultimately to relate the necessary injuriousness to the public good to the qualifying definitional requirement of “sex” or “matters such as sex . . .”.


separate concurring decision of Thomas J:


84. I can turn now to the point on which I rest my opinion that the Board exceeded its jurisdiction. In my view it is decisive. The Board failed to link the subject matter at the "gateway", that is, sex or a matter akin to sex, with the test which is provided for determining whether that subject matter is objectionable, that is, whether it is portrayed in such a manner that the availability of the publication is likely to be injurious to the public good. In forging this link the crucial words are "in such a manner". Thus, it is not acceptable that a publication might deal with sex in an unobjectionable way but the publication then be held to be injurious to the public good for unrelated reasons. Where the alleged harm of the publication is unrelated to matters such as sex, horror, crime, cruelty, or violence, the Board does not have the jurisdiction to go further. Of course, where applicable, but only where applicable, the extent and the manner in which the publication as a whole may dehumanise or degrade the participants or represent that some groups are inherently inferior to others must be given particular weight. But the acid test cannot be escaped. It is the treatment of sex, or a matter such as sex, which must be injurious.


85. In this case the alleged injuriousness to the public good was the manner in which the videos depicts homosexuals. This injuriousness is unrelated to the sex or a matter such as sex which is the subject matter of the videos for the purpose of subs (1). There is, in other words, no link between the subject matter of the publication and the respects in which the availability of the publication is said to be injurious to the public good.

D. Examples of “Likelihood of Injury” Statements made by the Film and Literature Board of Review and the OFLC

from Film and Literature Board of Review, Moonen, Decision 4/97, p12:

. . . the availability of these photographs was likely to be injurious to the public good, in the sense that any material which could be seen to normalise and encourage the exploitation of the nudity of children or young persons should not be in general circulation, when society had expressed its clear intention that the public good would be best served by promoting the interests of children and young persons over other competing interests.

from OFLC submission to the Board of Review on Sinners No Doctor Yes Doctor:

Specula are medical instruments designed to be inserted into, and to widen, the vagina to enable close physical examination. Women’s experience of the use of specula is one of intrusion and discomfort that is tolerated because of the positive diagnostic purpose it achieves. Neither the purpose for which specula were designed, nor women’s experience of them, is shown in this video. This video places the viewer in the position of the doctor, allowing the viewer to see what the doctor sees, but for the purpose of sexual titillation rather than medical diagnosis and with complete disregard for any discomfort or sense of intrusion the woman might feel. The idea that an intrusive medical instrument and uncomfortable diagnostic procedure could be made into a sexual experience for men is likely to injure the public good in several ways. It could have a deterrent effect on many women seeking medical help; it could undermine and trivialise public health initiatives by converting the purpose of a medical procedure from something of benefit to women’s health to something solely for the sexual titillation of men; and it could reinforce demeaning stereotypical views that women find all vaginal penetration in any circumstance by any object sexually stimulating.

from OFLC decision on Manhunt:

Learning how to acquiesce in, tolerate, or take enjoyment from inflicting violence, cruelty and suffering over the length of time it takes to play this game requires an antisocial attitudinal shift, (and reinforces such attitudes amongst those who already have them) that is likely to be injurious to the public good.  Another likelihood of injury to the public good lies in the game’s potential to adversely affect young people and adults alike, who may find the constant focus on inflicting injury or death in a brutal and callous manner disturbing and distressing.  The third likelihood of injury arises from the fact that the game immerses the player in violent gameplay intended to be a source of excitement and pleasure. To a greater or lesser degree, this has the potential to inure players to brutal violence generally.

from OFLC decision on 9 Songs:

The publication's explicit depictions of sexual activity and drug use are intended for an adult audience. The unrestricted availability of the publication is likely to injure the public good if viewed by impressionable younger viewers who do not have the knowledge, experience or maturity to comprehend the nature of the adult sexual relationship depicted in the publication.  Younger viewers are less likely to comprehend these depictions within the context of an adult love story and may be shocked and disturbed by the explicit nature of the sexual activity.  The manner in which drug use is normalised may also have a detrimental effect on young persons.

from OFLC decision on Loaded magazines, issues 114, 115 and 116:

This sexual content is likely to cause injury to [the public good by influencing] children and young teenagers.  Children and young people may develop negative attitudes about women, gender roles and sex through viewing the magazines' narrow portrayal of sex and women.   Boys in particular are likely to be attracted to the magazine, and influenced by its content.

An age restriction of 16 years is supported by other aspects of the magazine that may have a negative influence on children and young people.  Two of the magazines make flippant references to drugs that tend to suggest drug use is a normal activity amongst adults.  All three magazines tacitly promote stunts and activities that involve risk of injury, e.g. smashing glasses over one's head, firing rockets at each other, or joining a street race.  These activities often occur in a context where alcohol appears heavily involved.  While these activities may not be illegal, they could fairly be described as reckless and stupid.  Young boys and men may be influenced to try these activities, without having the maturity or experience to do so safely, particularly if they do so under the influence of alcohol.

The age restriction on each publication is supported by the references to drinking, including heavy drinking, in the publications. It is illegal in New Zealand to sell alcohol to people under the age of 18 years, reflecting public and political acceptance of the vulnerability of young people to the negative effects of this drug.

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