Exemptions to the Films, Videos, and Publications Classification Act 1993, which defines what is objectionable content, can only be obtained from the chief censor.
Exemptions may be made, for example, for testing software. An IT manager may also get an exemption under Section 128 of the act for “education or professional” purposes.
In the Coad case (see Porn importer presses on with image filter plan), the laws on importing or downloading “objectionable” matter were spelled out by software assessor John Thackray of Thackray Forensics. While Coad claimed such live tests were essential to test Moderator, Thackray notes that Coad himself was also able to demonstrate his software using non-objectionable material.
“The intentional downloading and gathering of potentially objectionable material is currently illegal in New Zealand and the majority of civilised countries in the world,” Thackray says in a report. And he adds: “Creating a database and duplicating additional images is professionally and ethically not acceptable regardless of the legal implications this may have.”
The act is enforced by Internal Affairs, Customs and Police. It defines content as objectionable if it involves exploiting children or young people for sexual purposes, the use of violence or coercion to force people into sex, sexual conduct with a dead person, the use of urine or excrement in association with dehumanising conduct or sexual conduct, bestiality and acts of torture or extreme violence or extreme cruelty. In addition, material that promotes criminal acts or acts of terrorism, or the idea that some people are inferior to others, may also break the law.
The seriousness of any breaches depends on who publication of the content is aimed at. Offenders can be jailed for up to a year and fined up to $20,000 and firms can be fined up to $50,000, depending which classes of the act have been breached.
“It does not matter whether [content] is gay or straight, old or young. They are all just factors taken into consideration,” says Auckland barrister Chris Patterson.
Businesses, Patterson warns, are also potentially liable for content that may be stored or distributed on its own systems. “There is no need to prove the firm knew the material was there to secure a conviction. ISPs have the same responsibilities as everyone else.
Their responsibilities are not to possess, supply or distribute the material,” he says.
The barrister believes it is easy for people to stray from what might be deemed acceptable porn to objectionable and illegal content. “Under section 123, the only defence is total absence of fault, which is very difficult to make out,” he says.
Risks remain with opening spam with titillating subject lines. “If it is classified as being objectionable then the user is likely to have committed an offence. Be careful and stay away from chat rooms,” Patterson says.