Living World Distributors Ltd. v. Human Rights Action Group Inc. (Wellington)

[2001] 2 LRC 233
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Living World Distributors (“LWD”) attempted to import two videos from the USA into New Zealand. The videos, which discussed aspects of homosexuality, opposed the granting of special rights to homosexuals and stated that homosexuality is one of the causes of the spread of HIV/AIDS. The videos were deemed suitable for audiences over 16 years old by the Film and Video Labelling Board but, on review by the Classification Office, only suitable for those over 18 years old. The appellants appealed after the videos were classified as ‘objectionable’ by the Film and Literature Board of Review for the purposes of the Films, Videos and Publications Classifications Act 1993 (the 1993 Act). Under section 3(1) of the 1993 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.” Under section 3(3)(e) the board had to give particular weight to the extent and degree to which a publication represented that members of a particular class of the public were inferior by reason of a characteristic which was a prohibited ground of discrimination under section 21(1) of the Human Rights Act, 1993, including sexual orientation. The High Court found that the board had jurisdiction to consider the matter because homosexual sex featured in the videos. Further, the High Court indicated that the right to freedom from discrimination protected by section 19 of the New Zealand Bill of Rights Act clashed with the right to freedom of expression protected by section 14, and section 14 should therefore be modified. LWD appealed.

[Adapted from INTERIGHTS summary, with permission]

The Court upheld the appeal, holding that the board did not automatically have jurisdiction over films that depicted homosexual sex. The Court reasoned that the subject matter limitation in section 3(1) was designed to impose an immediate limitation on the reach of the censorship laws. There was no justification for reading down the term 'matters such as sex' in section 3(1) by limiting the expression to abusive or degrading sex, even though features of that kind would be relevant to determine whether the availability of the publication is likely to be injurious to the public good. There was no warrant for reading section 3(3)(e) as importing all grounds of discrimination specified in section 21(1) of the Human Rights Act as stand-alone topics for potential censorship. Therefore, sexual orientation, race and gender as topics did not fall within the section 3(1) net. Section 3(3)(e) was concerned only with the weight to be given in determining whether a publication was objectionable. Therefore, the 1993 Act differentiated between censorship legislation and anti-discrimination legislation.

The Court further reasoned that the videos in question could have been objectionable only to the extent to which they dealt with sexual activity, and dealt with it in such a manner that their availability was likely to be injurious to the public good. In reconsidering the videos the board would be required to determine whether, as to subject matter, the videos could be considered for classification under section 3(1).

The Court additionally held that the High Court erred in treating freedom of discrimination in section 19 as prevailing over freedom of expression protected by section 14. . The ultimate inquiry under s 3 of the 1993 Act involved balancing the rights of a speaker and of the members of the public to receive information under s 14 of the Bill of Rights as against the state interest under the 1993 Act in protecting individuals from harm caused by the speech.

[Adapted from INTERIGHTS summary, with permission]

"[W]e are satisfied that the High Court (particularly in its para [9]) and the Board erred in law in the interpretation of s3(1). However, it seems, in terms of the High Court's description of the videos (para [2]) and its initial conclusion in its para [8] (para 15 above), that the videos to some extent describe, depict or deal with sexual practices and accordingly may come within the expression 'matters such as sex'. It is unnecessary to examine this point any further because, for reasons we shall give when dealing with the second question, we are satisfied that the error of law involved there requires reconsideration of the videos by the Board and on any such reconsideration the Board will be required to determine in terms of our interpretation of s3(1) whether, as to subject matter, the videos can be considered for classification under the 1993 Act." Para. 34.

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