TVNZ Producer Breached Law Screening Irreversible
THE SOCIETY FOR THE PROMOTION OF COMMUNITY STANDARDS INC http://www.spcs.org.nz
Friday 13 February 2004
Press Release: Society for the Promotion of Community Standards Inc.
CROWN LAW OFFICE: SOCIETY RIGHT - TVNZ PRODUCER DID BREACH LAW BY SCREENING “IRREVERSIBLE”
The screening by TVOne contract programme producer, Mr Dave Slade, of the brutal sex -violence film “Irreversible” to a group of TVNZ staff members in May 2003 in the making of a current affairs documentary which screened on Sunday night 1 June 2003, was in breach of the law according to a Crown Law Office opinion, recently released (in summary) to the Society for the Promotion of Community Standards (“the Society”) by Censorship Compliance section of the Department of Internal Affairs (DIA).
Male and female TVNZ staff were filmed for the documentary, while watching and reacting to, an explicit nine and a half minute depiction of a brutal anal rape of a young woman by a homosexual man (who is fantasising while on drugs that he is raping a young virgin boy) and gratuitous graphic violence that takes place in a sleazy sado-masochistic homosexual club called “The Rectum”. In one scene a man pummels another man’s face over and over again with a fire extinguisher until it is reduced to mush, while homosexual onlookers from inside “The Rectum” get sexually stimulated by the action.
The Crown Law Office confirmed that an offence was committed under s. 125(1)(a) of the Films, Videos and Publications Act 1993 (“the Act”). It is one of “strict liability”, meaning that “it shall be no defence to a charge … that the defendant had no knowledge or no reasonable cause to believe that the publication to which the charge relates was a restricted publication” (s. 125 ). Under s. 125(2) every person committing an offence against s. 125(1) is liable to a fine not exceeding $3,000, in the case of an individual, or $10,000 in the case of a body corporate.
The Society, which last year was granted the right of appeal under s. 47 of the Act to the Film and Literature Board of Review (“the Board”) against the classification decision made by the Office of Film and Literature (OFLC) with respect to “Irreversible”, and later sought an interim restriction order from the President of the Board under s. 49 of the Act to temporarily ban the film until the OFLC decision could be reviewed by the Board; lodged a formal complaint in June 2003 with Censorship Compliance (DIA) over the screening event held at TVNZ (Auckland) and the subsequent broadcast of the “Sunday” documentary which included footage of the restricted film.
The Society alleged that Mr Slade, who organised the screening event with TVNZ employees and management, and Mr Anthony Talbot Timpson, sub-distributor of the film and director of the Incredible Film Festival where the film was scheduled to be screened in June 2003; all committed offences under ss. 125 and 126 of the Act in exhibiting a “restricted film” in a manner that was not in accordance with the classification assigned to the publication under s. 23 of the Act. (The OFLC classification decision on “Irreversible” which was registered on 28 April 2003 and published in the OFLC monthly List of Decisions on 14 May 2003, gave it a R18 classification and restricted it to film festival and tertiary film and media study course screenings. The censors’ descriptive note was “contains brutal sexual violence, graphic violence and sex scenes”).
The screening event organised by Mr Slade at TVNZ was itself filmed so that excerpts of the restricted film, the “live” reactions of a group of TVNZ staff and their opinions given following the screening, could all be included in the documentary covering the actions of the Society to have the film classification reviewed by the Board. All these components as well as interviews with Mr Timpson (who appears to have supplied the film to Mr Slade), Hon. Roger McClay, Commissioner of Children, and Mr Peter Brown, Deputy Leader of the NZ First Party, were included in the programme that went to air on Sunday night 1 June 2003. (Both Mr McClay and Mr Brown had publicly called for the film to be banned). The Chief Censor, Mr Bill Hastings, was also interviewed and he said that after first seeing it he decided it should be banned. However, he admitted that sometime later he had changed his mind and decided to clear it for screening with certain restrictions.
The Society declined numerous invitations (made by phone and e-mail to the Society secretary) from Mr Slade to have its representatives appear on the “Sunday” programme, for the stated reason that “the matter of the classification is currently before the Board – the matter is in effect sub judice”. (The programme failed to inform viewers why Society representatives declined to appear).
The Crown Law Office opinion supplied (in summary) to the Society by the Department (letter from Mr Phil Priest, Inspector of Publications, 3 February 2004) stated:
“Further to our discussions I can confirm that the Crown Law Office considered that Mr Slade came within the S 125 (1)(a) of the Films Videos and Publications Act 1993. To avoid these provisions it would have been necessary for Mr Slade to apply under Section 44 of the Act for an exemption.”
As the opinion notes, the only way Mr Slade could have avoided the provisions under s. 125(1)(a) of the Act, was to have applied to the Chief Censor, Mr Hastings, for an exemption for his screening event, under s. 44 of the Act. He did not do this and thereby breached the law. The Society secretary informed Mr Slade on several occasions prior to the screening event at TVNZ, of his legal obligations under s. 44 of the Act.
Appendix I: Background to the Offence
Following receipt of a copy of the formal complaint made by the Society to the Department of Internal Affairs, Mr Slade contacted the Chief Censor, Mr Bill Hastings, seeking clarification as to whether or not he had committed an offence. In his response to the Society’s complaint, Mr Slade maintained that Mr Hastings, who was made aware that the screening took place at TVNZ, had informed him that the permission of his Office was not required for “private screenings”. Technically Mr Hasting’s response is correct – the Chief Censor’s permission is not required before committing an offence under s 125(1)(a). Likewise, one is not required by law to inform an officer of the law, or any enforcement official, before (or after!) committing a crime! But this is beside the point. The legality of Mr Slade’s action to screen the film, does not turn of whether or not it was a “private screening” and/or whether or not he informed the Chief Censor in advance of his intentions to go ahead with a screening.
S. 125(1) of the Act uses the term “exhibits” in relation to a “restricted publication” (including a film) rather than “exhibits to the public” (which does not include screenings at a “private residence”). Although the term “exhibits” is not defined in the Act in relation to films, it most definitely does apply to a “private screening” in a venue which is not a “private residence” (such as TVNZ: otherwise the giving of a restricted classification such as that given to “Irreversible” would be meaningless).
It is noteworthy that Chief Censor Bill Hastings failed to inform Mr Slade that he had committed an offence. The Society takes the view that Mr Hastings thereby failed in his statutory duty and that this is yet another example of the failure of the Classification Office to apply the law. The Society has consistently maintained that “Irreversible” should never have been given a clearance by the OFLC for screening in film festivals and tertiary studies courses. The content so clearly contravenes s. 3(2) and 3(3) of the Act that the film should have been banned or cut.
Mr Timpson’s involvement in the screening event is clear. On 19 May 2003 he posted the following statement, entitled “FEST ON TV” on his festival website.
“Watch TVONE Sunday the 1st, 7.30pm for the Sunday show, to see an extended piece on the festival and the controversial films in which the following people are interviewed: Bill Hastings (Chief Censor), Peter Brown (MP), Roger McClay (Commissioner of Children), Myself, Some random folks who saw IRREVERSIBLE, a critic and hopefully someone from the people opposing the films playing: The SPCS. They may even show clips from IRREVERSIBLE on the show. It looks like SPCS will be soon requesting to get injunctions against KEN PARK and IRREVERSIBLE from the Board of Review.” http://www.becksincrediblefilmfest.co.nz/archive7.html
It appears clear from this entry and website data at the time (identifying the film’s classification), that Mr Timpson apparently knew well in advance of the screening of the Sunday documentary on 1 June 2003 that the film he appears to have supplied to Mr Slade, had been used, or was intended to be used for a so- called private screening in the making of the TVOne documentary and that this use was outside its designated classification restriction. If so, his supplying of the film to Mr Slade would be a breach of s. 126(1)(a) of the Act:
126 (1). Every person commits an offence against this Act who (a) Does any act mentioned in s. 125(1) of this Act knowing or having reasonable cause to believe that the publication is a restricted publication.
126 (2). Every person who commits an offence against subsection (1) of this section is liable, (a) In the case of an individual, to imprisonment for a term not exceeding 3 months or to a fine not exceeding $10,000 b). In the case of a body corporate, to a fine not exceeding $25,000.
The Society is dismayed that the Department of Internal Affairs, having confirmed that the Society’s complaint was supported by a Crown Law Office opinion, went on to state:
The [Crown Law] Office has agreed with the Department that in the circumstances of this case a warning [to Mr Slade and TVNZ] is sufficient.
The Society is satisfied that TVNZ (or its employees) can longer try and excuse itself from prosecution using the argument of ‘ignorance of the law’ with respect to s. 44 of the Act.
Appendix II: A brief chronology of events involving the Society and its appeal against the classification of “Irreversible”
Mr Timpson (trading under the name “2Brother Films”) submitted the film “Irreversible” to the Film and Video Labelling Body on 10 January 2003. The OFLC decision was registered on 28 April 2003 and published in the List of Decisions on 14 May 2003. The Society first applied to the Secretary of Internal Affairs on 2 May 2003 for leave to apply to the Board for a review and followed this up by submitting a comprehensive report outlining the Society’s case for re-classification. The Secretary granted the Society leave on 23 May 2003 to seek a review by the Board, acknowledging that it had established a “prima facie” case for a review and that the application was neither “vexatious nor frivolous”. The Secretary also determined that the application had been made on time, well before the 30 working day period expired following the publication of the decision (14 May).
On 26 May 2003 the Society (having first been granted leave and paid its application fee for the review, as required under the Act) applied to the president of the Board for an interim restriction order against the film, as it was entitled to do under s. 49 of the Act. The president, Ms Claudi Elliot, in a decision dated 30 May 2003, declined the application, giving as her main reason her view that the Society had been tardy in its application for an injunction and had failed to justify what she claimed were delays in making its application. The Society considered her decision to be replete with legal errors and sought a judicial review of the decision in the High Court.
The Society was represented in Court by Mr Peter McKenzie QC. In his ruling, Hon. Justice Ronald Young quashed the President’s decision agreeing with the Society’s case that her decision contained legal error. However, he chose not to remit the matter back to her and chose not to issue an order. He took the view that the president, even if instructed by the Court to correct the legal error and reconsider her decision in the light of that error, would not have time to come up with a decision before the scheduled screening of the film in Wellington on Friday 13th June 2003. However, the Society takes the view that the president has a statutory duty under the Act to treat every application for an interim restriction order with urgency and that a decision could have easily been issued by her within a day, given that all relevant facts were before her.
The Board president set a date of 16 July 2003 for a hearing of the review application by the Society. Aware that the Board had been informed by the distributor that there was no chance of this film ever returning to New Zealand the Society chose to withdraw its application for a review. It takes the view that the entire process was made largely meaningless by the decisions issued by the High Court and Board president.