Review of classification of Wicked Camper JMY492.

Review of decision of the Office of Film and Literature Classification

Review completed as a requirement of Law 449: Selected Topics on Media Law

The issue in this review[1] is whether the campervan designated as Wicked Camper JMY492 (JMY492) should be classified as objectionable under the Films, Videos, and Publications Classification Act 1993 (the Act).

Issues for review

Firstly, does the material under review meet the criteria for classification as objectionable under the Act?

Secondly, does an objectionable classification impose a justifiable limitation on the right to freedom of expression under the New Zealand Bill of Rights Act 1990?

Does the material meet the criteria for classification as objectionable?

The criteria for material being classified as objectionable under the Act are outlined in four broad provisions in s 3. The first provision in s 3(1) provides an outline for finding material objectionable. Section 3(2) is a strict liability provision, which lists material that will be deemed objectionable. The third provision in s 3(3) provides factors to be weighed in determining whether or not material is objectionable, and the fourth provision in s 3(4) lists additional contextual matters that must be considered.

Subject matter

Under s 3(1) of the Act, where the availability of the material would be injurious to the public good, publication of materials dealing with certain subject matter is deemed objectionable and therefore under s 23 of the Act can be classified as either objectionable or restricted. This subject matter gateway defines subjects for consideration including sex, horror, crime, cruelty, or violence.

In the case of JMY492 two subjects are relevant; “matters of sex” and “matters of crime”. The campervan JMY492 satisfies both criteria due to a puerile verse painted on the rear window of the vehicle. The verse satisfies the subject of sex due to its reference to male genitalia in the slang term “dick”, and the subject of crime due to its reference to illicit drug use in the term “pass the bong”. A bong is a pipe for smoking cannabis, an illegal drug under the Misuse of Drugs Act 1975.

As the material satisfies the requirements for subject matter the next step is to assess whether it is sufficiently “injurious to the public good” to be considered objectionable.

Subject matter deemed objectionable

Although the material on campervan JMY492 deals with matters of sex it does not meet any of the criteria that would require mandatory classification under s 3(2).

Factors to be weighed in considering material objectionable

The two subject matter issues already identified, matters of sex and crime, require separate assessment under s 3(3).

The use of the word “dick” in the verse relates to a cartoon character, Captain Goodvibes, painted onto the side of the campervan. While it is clearly referring to the character’s penis, merely mentioning sexual anatomy is not describing, depicting or dealing with “sexual conduct” as required by s 3(3)(a) and therefore is not captured by this provision.

The provision in s 3(3)(d) requires weighing the extent, degree and manner to which the phrase “pass the bong” promotes or encourages a criminal act. The reference in this case is clearly at the low end in relation to promoting or encouraging drug use. The manner of the reference is only secondary, mentioning paraphernalia rather than the drug itself. New Zealand society has been aware of cannabis use for decades and there have been calls for its legalisation for at least 35 years.[2] A such the Board considers the extent to which this phrase offends against the provision is insignificant in its ability to be injurious to the public good.

Additional contextual matters

Although we have found the campervan material to be at the lowest weighting for harm to the public good, for the sake of completeness we now consider the additional contextual matters required by s 3(4) of the Act.

We consider it appropriate in this instance to conflate the matters in subss 3(4)(a) and (b). The dominant effect of the publication as a whole and impact of the medium can be considered as one because both are contained within the one vehicle. The vehicle as a whole is eye-catching due the colourful nature of the imagery painted on it. However, the verse containing the subject matter appears only on the rear of the vehicle and as such is only visible to following traffic.

In preventing injury to the public good a major concern is to ensure there is no undue influence on children and young people. There may be occasions when children are exposed to the verse but they will usually be in the company of an adult driver so any questions they may have about the subject matter can be easily addressed.

Whether the character of the publication has any merit in a literary or artistic sense, as required for consideration in s 3(4)(c), is doubtful. The language is crude and the message, to the extent there is one, seems confused.

The intended audience for the material, the factor for consideration in s 3(4)(d), is presumably young tourists. If the earlier factors weighed more heavily toward injury to the public good this factor would be of more concern. However, as a group this audience will already be well aware of cannabis use and are unlikely to be encouraged into illegal drug as a result of the verse.

The intended purpose of the publication, the s 3(4)(e) factor, is brand positioning for the campervan rental business. The business clearly intends to be controversial in their marketing approach, and in some instances the material has breached acceptable standards. However, in this case the intended purpose does not contribute to lowering the material to an objectionable standard.

Freedom of expression

Restricting material to prevent harm to the public good is arguably the type of reasonable limitation s 5 of the New Zealand Bill of Rights Act 1990 foresees as “demonstrably justified in a free and democratic society”. However, as no injury to the public good has been identified in this case there is no requirement to consider further whether the limitation to freedom of expression is justified.

Result

Wicked Campers JMY492 is classified as unrestricted.

[1]    Review of the decision Wicked Camper JMY492 (Office of Film and Literature Classification, 7 June 2016).

[2]    www.norml.org.nz states that the National Organisation for the Reform of Marijuana Laws formed in 1979.