Your private text messages are officially "publications" and writing something objectionable could land you in jail for 10 years according to a landmark ruling.
The ruling was made in January after lawyers sought to have a man's sexual text messages to a 12-year-old girl classified as "objectionable publications" so he could be prosecuted for distributing banned material.
NetSafe chief technology officer Sean Lyons, whose organisation advises on digital safety, said "the fact they've said you can now call a text a publication - that's a big deal. It's another case for all of us in our increasingly connected world - here's another one of these ‘stop, think and check' processes before we create content."
Taihape man Ricky Walker, 35, was originally prosecuted for performing indecent acts on children after he admitted sending explicit texts to five girls, all friends, aged between 11 and 13.
However, a judge stopped the prosecution, saying texts alone could not constitute the charge.
The court referred five of the texts - which were words, not pictures - to the New Zealand Film and Literature Board of Review to see if they were objectionable publications and whether Walker could be prosecuted under the Films, Videos, and Publications Classification Act.
The board - the review body above the Office of Film and Literature Classification - ruled the texts met the definition of a publication and were liable for classification.
Despite the board ruling it could classify the text messages the same way they would a movie or book, Walker's texts were not legally "objectionable" under the strict terms of the legislation.
Objectionable publications include those that support torture, sexual violence, child exploitation, necrophilia, bestiality or the use of urine or excrement for degrading or sexual conduct, and those that depict sadism, or child nudity.
Anyone who knowingly makes, copies, distributes, or displays an objectionable publication is liable to a term of imprisonment up to 10 years. Though indisputably inappropriate when sent to a pre-teen girl, Walker's texts, stripped of all context, did not meet the definition of objectionable.
The board said it was "aware of, and concerned about" the fact the text messages were from a man to a young child, but it was unable to make a judgment based on additional information, such as the age of the recipient and could only judge the material on face value. So with "the greatest of reluctance" it could not classify the texts as objectionable.
The Sunday Star-Times has seen the messages but believes they are too obscene to publish.
Chief Censor Andrew Jack told the Star-Times police had asked his office to classify several text messages in the past.
The current case was the first to go to the Board of Review. The five text messages were classified as R18 though the Office recognised this was somewhat pointless as it was a private communication.
The context issue was a factor in Walker's case as the information suggested he did not know or care the ages of the girls. Walker told the courts he thought the girls were 18 from how they were talking.
His lawyer Craig Ruane said Walker had made no contact with the girls, no threats, invitations or sexual grooming.
As Walker could not be prosecuted for doing indecent acts, and his text messages were not legally objectionable, all charges against him were dropped.
A bill before Parliament would stop such a situation from occurring again. The Objectionable Publications and Indecency Legislation Bill, currently at select committee stage, would introduce an offence of "indecent communication with a young person" where the onus would be on any "sexter" to determine whether the recipient was 16 or older.
A 2014 survey by internet security firm McAfee found that 54 per cent of users had sent or received "intimate content". For 18 to 24 year-olds the proportion rose to 70 per cent.
- Sunday Star Times