The Classification Office ruled that the photos were objectionable, however, the owner of the photographs appealed that decision to the Film and Literature Board of Review earlier this year.
The board makes the final ruling on challenges to the Classification Office’s categorisation of content such as age ratings on movies or on banning certain content in New Zealand altogether.
The owner made submissions to the board in June that they shouldn’t be banned because they didn’t deal explicitly with sex.
“While the subjects are nude, the images are not reasonably capable of being regarded as sexual in nature,” their submission reads.
“The viewer’s attention is not immediately drawn to the two subject’s genitals nor does the camera focus on their nudity in a voyeuristic manner.”
The owner, whose name was redacted by the tribunal, said the two girls were not in sexual poses and had a “naturalistic tone to them” because they were photographed in nature.
“Nudity is not a matter of sex per se…The objectionable person would likely view these images as innocent and innocuous,” the submissions read.
“The dominant effect of the publications as a whole is the frank, non-sexualised portrayal of the nude bodies of two physically immature females.”
The images themselves were housed on a website with an international address that claimed to be a leading provider of nudism content from around the globe.
A caveat on the login page of the site prohibits members from downloading the content and a warning on the photographs notes the same; “Legal notice: Do not save to computer, modify or distribute this image.”
The owner said the fact they were not immediately accessible to the public and required a membership to the site meant they were not causing damage to the public good.
By contrast, the Classification Office said in submissions to the board that the images were of two naked, underage girls who appeared uncomfortable at being photographed.
The office conceded that the images were not overtly sexual, but still exploited the nudity of young people and therefore should be banned.
“Although the images likely do not reach the high threshold required to promote or support, or to tend to promote or support the exploitation of children or young persons for sexual purposes, they exploit the subjects’ nudity to a high degree and in a voyeuristic and objectifying manner,” its submissions read.
“Material such as this normalises and encourages this type of exploitation.”
In a recently released ruling, the board found unanimously that the images were, in fact, of a sexual nature.
They said there was nothing to suggest the pictures were candid, there was little else in the picture to distract the viewer and the subjects were both clearly children.
“It finds that the images tend to promote or support the exploitation of children for sexual purposes, sufficient to be a justifiable limitation on the right to freedom of expression as they are injurious to the public good,” its ruling reads.
“The Board sees no apparent purpose for the images beyond tending to support the exploitation of children. The girls present as of such an age that they could not provide informed consent to their naked image being taken and published.”
It found ultimately that the images were objectionable, upholding the Classification Office’s original ruling, and making them illegal to possess in New Zealand.
Jeremy Wilkinson is an Open Justice reporter based in Manawatū covering courts and justice issues with an interest in tribunals. He has been a journalist for nearly a decade and has worked for NZME since 2022.
