Censorship and sexually explicit expression

Arguments about the restraint of sexual expression are as old as sex itself. What is newer, though, is the increasing pervasiveness of the media in all aspects of society and the changed rationale for censorship. Censorship ‘occurs whenever particular words, images, sounds and ideas are suppressed or muted’ (Watson & Shuker, 1998, p.12).

The media

The ubiquity of the modern media, their creative and technological convergence and intersection with all aspects of society have increased debate about their power and effects. A measure of that debate is the amount of research that examine the link between television and violence – estimated at over 4,000 research studies (Working Group: TV Violence Project, 2004). Divisions between private and public life have eroded, electronic news and information is instant, and the internet has both positive and negative implications for the right to freedom of expression. Twenty years ago, for example, before the information society, it was inconceivable that organisations would need to develop ethical codes for employees about the misuse of work computers to access internet-based child pornography. Children, too, are increasingly targeted by advertising in globally competitive and commercial media.

In a 2001 study of the future of digital television in New Zealand, Paul Norris and Brian Pauling said, ‘many nations are addressing the double-sided coin of risking either too heavy handed and unwieldy regulation or too little regulation and the consequent total domination of market forces’ (p.125).

Traditionally, distinctions have been drawn between the censorship of films and printed matter. Pre-publication restraint on newspapers would be a gross fetter on the liberty of the press. Films, videos and DVDs, on the other hand, combine visual imagery and text, and are deemed to have a different impact, arousing emotions and feelings and catering for unselective mass audiences (Jayawickrama, 2002). Whether this distinction will survive the rapid evolution of media technology is debatable.

Rationale for censorship

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The changed rationale for censorship has moved the debate from moral imperatives to a discussion of ‘harm’. For example, the ICCPR refers to the ‘protection’ of ‘morals’. But the most comprehensive censorship legislation in New Zealand, the Films, Videos and Publications Classification Act 1993 (FVPC Act), is promoted as balancing the need to protect and encourage freedom of expression and the need to limit any social harm caused by the availability of material that is injurious to the public good. [9] Chief Censor Bill Hastings said the FVPC Act does not mention morality, and that the ‘concept of an enforceable public morality has been largely superseded by widespread agreement that the modern State has no place in the bedrooms of the nation. Rather, the role of the State is to protect the public good from injury. Morality has become a private matter.’[10]

International feminists Catharine MacKinnon (1984) and Andrea Dworkin influenced the change in emphasis of censorship legislation in many countries by arguing that pornography was not a moral issue but should be regulated because of the harm it inflicted on women and children. Deciding what counts as ‘harm’ is itself a moral issue. New Zealand’s censorship regime covers most media, allowing censorship of ‘objectionable’ publications that deal not only with sexual matters but also with crime, horror, cruelty and violence in a manner considered likely to be injurious to be the public good. Changing social perceptions, values and audience expectations also affect debate about censorship.

Films, Videos, and Publications Classification Act 1993 and its application

The censorship legislation establishes two categories of publication. Under section 3(2) of the FVPC Act, publications that promote or support, or tend to promote or support, exploitation of children and young people for sexual purposes, the use of violence to coerce sex, sex with the body of a dead person, bestiality, torture, extreme violence or cruelty and various forms of degrading conduct are banned, regardless of artistic merit or otherwise socially redeeming features. The law aims at a limited range of publications only.

Under section 3(3), publications are assessed as being objectionable, and therefore censored or classified as restricted in some way, against a widened number of criteria that also include exploitation of children’s nudity and promotion of criminal terrorism. Section 3(3)(e) refers to publications that represent (whether directly or by implication) that members of any particular class of the public are inherently inferior to other members of the public by reason of any characteristic that is a prohibited ground of discrimination of the Human Rights Act.

The word publication is broadly defined and covers any printed, recorded or stored image or text; it includes films, videos, books, magazines, posters and computer discs. In 2002–2003, the OFLC classified 1,223 publications and banned 165 (14 percent). Over half were computer image and text files sourced from the internet and came from Crown enforcement activity and mandatory court referrals. A total of 60 of the banned publications under section 3(2) promoted sexual exploitation of children and young people. Of the 12 publications banned under section 3(3), seven were do-it-yourself drug books promoting criminal activity and the rest were four DVDs and one video depicting degrading, dehumanising or demeaning behaviour. A total of 552 publications were classified as R18, and the majority of these were DVDs and videos. Publications restricted to R16 represented 21 percent (260) of classifications. While Film Festival offerings traditionally provoke complaints from morally conservative groups such as the Society for the Protection of Community Standards, they form only a tiny proportion of the publications submitted for classification.

Balancing rights?

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Two recent censorship cases demonstrate the ongoing tensions between the right to freedom of expression and the notion of social harm.

Moonen v Film and Literature Board of Review affirms the BoRA and is influencing the way regulators and policy makers think about the right to freedom of expression in New Zealand. The relationship between freedom of expression and censorship in section 3(2) was discussed in this case. The Court of Appeal held that the High Court approach that the right to freedom of expression was irrelevant to the operation of section 3(2) was wrong, and that an approach consistent with the BoRA was required in considering the correct meaning of the words ‘promotes or supports’ in the censorship legislation. The meaning put on the words should impinge as little as possible on freedom of expression. Huscroft (2003) says that it remains to be seen whether the application of the BoRA will have a significant impact with respect to section 3(2), but that it is clearly highly relevant to the exercise of discretion under section 3(3).

The Living Word case, on the other hand, has polarised opinion. The case illustrates the difficulties that arise in the interpretation of censorship legislation in relation to what has been called the ‘subject-matter gateway’. The Chief Censor says the Court of Appeal’s interpretation of section 3 in Living Word Distributors v Human Rights Action Group (Wellington) continues [11] to affect the operation of the classification system. He cites three examples that could not be appropriately restricted:

An alternative viewpoint (Rishworth, forthcoming) is that the Living Word case did not expose but rather closed a loophole that was beginning to be exploited, and that invasion of privacy and other remedies are available.

In the Living Word case, the High Court upheld a Film and Literature Board of Review classification of two Christian videos as objectionable, and therefore banned them because they represented homosexuals and bisexuals as inferior. The two videos contained views that homosexual sex was sinful and that discrimination on the basis of sexual orientation should be allowed. The Court of Appeal, in overturning the decision, held that the FVPC Act applied to publications that dealt with the specified matters of sex, horror, crime, cruelty or violence and not to matters of opinion or attitude. This was not a case of competing rights being balanced, the right to freedom of expression versus the right to freedom from discrimination, because the State was not discriminating against anyone. Rather, freedom of expression was the only right at issue and it had been infringed in the interests of promoting equality among private persons (Huscroft, 2003). A Mediawatch commentary about the Living Word videos notes that a State that silences fundamental Christians can just as easily curb the views of homosexual rights groups (Hate Speech, 2003). However, a commentator on the GayNZ website noted the power differential in the exercise of the right to freedom of expression. Majority opinion often prevailed and the reality is that many minority groups are not robust or wealthy enough to fight back (Hatred on Screen, 2001).

At a more general level, Fountaine (forthcoming) suggests that, in dealing with hate speech, differences in the ability of individuals and groups to respond and take part in debate needs to be considered in the context of wider human rights and the State’s role to protect its citizens from discrimination.

Where the appropriate boundaries lie between the public’s right to read, view, see and hear publications in private and the State’s legitimate interest in regulating the content will probably never be universally agreed upon.