As he ends his tenure leading the Classification Office, Shanks talks about the professional and personal challenges, the way the role is changing, and why NZ’s content regulation framework is not fit for purpose.
Intense. Full-on. Frightening. Those are some of the words David Shanks chooses to describe his time as chief censor, which comes to an end tomorrow after five years. Another word he nominates: strange. Strange because the job has called upon Shanks and his colleagues to consume, analyse and assess materials that no one should be exposed to. Strange because the nature of that stuff means you’re morally and sometimes legally unable to bung it on a slide to illustrate your work. “Part of the conundrum is that what we are really talking about, you can’t understand. Because I can’t show you,” he says, resting his jaw in hands. “Part of the challenge to the public discourse is that it’s almost impossible to really convey what you’re talking about, what you mean, without actually inflicting that harm on someone.”
The walls around Shanks when he Zooms in from Wellington look like those you might see in a film student’s flat – posters for Pulp Fiction, Silence of the Lambs, Hunt for the Wilderpeople, more. It’s a gallery that belies the reality of the job in 2022. A few decades ago you were most likely to encounter the censor in a headline about a contentious R18 rating or the banning of a gratuitous movie. Not that long ago, a good chunk of the Classification Office’s income came from classifying porn DVDs. Those plastic stacks are a thing of the past. Assessing and assigning the rating stickers to films and video games remains a core function, but the frontier these days looks very different – contending with the ever-swelling streaming services, confronting online exhortations to violent extremism and terrorism, addressing the ways young people consume porn, swimming in the digital sewers of misinformation, disinformation and conspiracy theories.
Shanks officially finishes up this week, but he has one trip away yet to complete – to Washington DC, where he’ll speak at the Center for Countering Hate. The organisation was in the news last week when it published research that revealed the big online platforms were failing to act on an astonishing nine out of 10 posts containing Islamophobia. It found, too, that the platforms had failed to address 88 of 99 posts identified in its study that promoted the “great replacement” theory, as advanced by the terrorist convicted for the 2019 mosque terror attacks, despite pledges made as part of the Christchurch Call.
For Shanks, it will be a fitting, poignant bookend. The March 2019 tragedy presented unprecedented challenges for the Classification Office, which moved swiftly to ban the video of the terrorist’s livestream of the massacre, and later to also rule his “manifesto” an objectionable publication. Last month a pseudo-documentary that included footage of the attack and promoted baseless “false flag” theories was also banned after being promoted by a group associated with the Wellington parliament occupation.
“I remember it vividly,” says Shanks of the afternoon of March 15, 2019. “I remember hearing the news that there had been an attack. It was unclear exactly what had happened, but it was clear it was very, very bad. I remember talking to a friend – this is something like 4pm on that Friday afternoon – and they told me how they’d just seen this video of the attack on one of their social media feeds, and how horrendous it was. I remember the shock of that and then the dawning realisation of the implications, in terms of the role and the response phase.”
What followed through the weekend was “a blur of constant calls and discussions and engagement with the response authorities and some of my key team members, working through our response, getting the video to look at, and making decisions on the way through”.
Shanks was alert to the swelling risks associated with extremist content online. “As an office we’d started thinking through what that was increasingly looking like.” He had “a growing dread about the potential vulnerabilities in the system, some inkling of what might go wrong, and what that might mean for me and the office”. But none of that could prepare for the visceral devastation of the day its consequences for platforms, regulators, governments – everyone, really. “The enormity of understanding just the reach of this. How far it was spreading, how the virality aspect had amplified it right across the internet. And the incredible challenge the platforms were having to battle that. They were battling their own algorithms, basically, which were busily identifying and recommending high-engagement content. A dreadful, dreadful situation.”
‘Our regulatory framework is outdated’
A surfeit of headlines in recent months have laid bare the depth and breadth of online harassment, threat and incitement, disinformation and conspiracy theory in Aotearoa – a constellation of toxicity, presenting dots that can be joined from the Christchurch atrocity to the most extreme fringes of the parliamentary occupation. It has prompted some to suggest that the regulatory and enforcement apparatus for responding to such material – which spans a range of organisations including police, Netsafe, Internal Affairs and the Classifications Office that Shanks leads – is not “fit for purpose”.
What does Shanks say to that, after five years at the sharp end? He takes a long breath. “Our regulatory framework is outdated. And in practical terms, I think I’d struggle to say it is fit for purpose in the current environment.”
That is not, he hastens to add, “a condemnation necessarily of New Zealand, or of the speed of response. Anywhere in the world, I’d say, you could say something broadly the same. I haven’t had anyone point me at a functioning system right now that I’d call fit for purpose in responding to the challenges we have in this space.”
Shanks says: “Frankly, what we’re going through is a transition or inflection point in response to new technologies.” It’s a pattern history has witnessed before. “We know this is the way it works: technology arrives, people use it, it’s great and then various bad actors or forces come into play and find a way it can be misused or weaponised or misapplied. And the more powerful the tool is, the higher your risk factor about that weaponisation or misapplication. And that’s exactly the frame, I think, that we’re in now.”
New Zealand has a range of reviews under way that seek to traverse this territory, much of it emerging out of the Royal Commission into the Christchurch attacks. The state must, however, tread with care, Shanks warns. “This is almost a uniquely challenging space for governments to grip and respond to comprehensively. Because in many respects the more a government seeks to impose clear, emphatic, direct control, the more counterproductive that is. Fundamentally, your responses in this space in some way go towards people’s freedoms, very fundamental freedoms, freedoms that are core to our democracy. So that is the key tension that makes it very difficult to navigate with a conventional regulatory approach.”
For anyone whose role includes censorship – either implicitly or, in Shanks’ case, right there on the tin – the drum-beat of free speech should be a constant noise in the ear, he says. “One of the key takeaways that I have from this whole experience, remarkable and challenging and sometimes frightening as it has been, is that it is critically important to realise that what we’re trying to achieve here is a balance, a fought-for balance, between competing interests and freedoms. The only way you’re going to achieve that balance is through transparency, is through some level of negotiation, and certainly elements of debate and disagreement.”
He says: “You need an officer or an authority that is independent from government and is quite carefully at arm’s reach and not able to be directed by any minister of the Crown. That’s an important insulation from starting that first step down the road towards to the dreadful situations that you see in Russia, where you can get 10 years in prison for saying that what you see in Ukraine is a war, and those sort of absurdities.”
The last censor?
Not long after he took on the job, Shanks discovered that the role of censor – or at least the label – was on the brink of extinction. He’d flown to Stockholm for an international classifiers’ conference. “I introduced myself to people from other agencies around the world. I’d say, ‘Hi, I’m David Shanks, the chief censor from New Zealand.’ And people would almost literally snatch their hand back and take an involuntary step backwards at the title.”
When it was his turn to speak he asked the group: was anyone else still using the term “censor”? One hand went up: the delegate from Singapore had censor in her title. “But they were getting rid of it the next year.”
The euphemisms and job descriptions for his counterparts – and the classification officers more generally – vary around the world, says Shanks. Most share the central task of classifying commercial content, but “very few, if any, of the agencies represented at that conference had the Crown or criminal dimension to their responsibilities that the chief censor and the Classification Office does,” he explains. “The interesting thing about the chief censor role is that it straddles commercial and Crown-slash-criminal content in terms of being an adjudicator about what is and what isn’t lawful. And as I look around the world there are very few publicly identifiable authorities or representatives that have that role.”
All of which makes the New Zealand example “an interesting artefact from our legislative history”. Which is not to say the office belongs in a museum, he insists. “As it turns out, I think it’s quite interesting, useful and potentially illuminating in an environment where those sorts of categories are merging and morphing and difficult to differentiate from one another.”
The age of information asymmetry
The most instructive examples in tackling the regulatory challenge of the moment, says Shanks, can be found in the European Union and Britain, which are “on the pathway to getting there”.
Getting there fundamentally means tackling “a massive information asymmetry between a digital platform like a YouTube or a Meta or TikTok and any regulator or authority that is looking to reduce or mitigate public harm”, he says. It means tilting the balance back a little from the all-conquering digital colossuses. The EU, mostly through a Digital Services Act which places greater responsibility on the platforms for the materials that they host, is “starting to give a picture of what that looks like”.
The task, says Shanks, is deciding where to draw the line in the sand – a “baseline of responsibility that you expect platforms of a certain size to apply or abide by”. That’s half the challenge. The other: “How can you apply some sort of assurance or checks that they are actually applying those standards? Because as more and more research emerges, the more we understand about what’s happening in these areas, the more it becomes evident that there are standards in place but actually they’re either not applied at all or in a very patchy and ad hoc way. How can you start to work on that and rebalance that problem?”
Those overseas examples offered “a framework that we can leverage and apply and think through in terms of how that works for Aotearoa and for our circumstances”, Shanks says. “How do we think about the responsibilities of platforms and how do we engage with the communities that are most affected by these issues and harms, to get their voices front and centre and make sure we’re responding in an effective way?”
He might be vacating his office, but Shanks remains eager to assert its place in that future. “As you look at what good might work in this area, and look at frameworks for approaching it around the world, you start to think having a regulator with some understanding of how this works, relationships with platforms, some understanding of how to conduct research in this space, how to pull together an advisory panel – as we have, so you’ve got young people in the mix – to understand how you navigate this space and apply a framework, the value starts to become apparent.”
The mind warp
“Essentially we’re like an asbestos removal crew,” says Shanks, when I ask about the mental toll of a day job that requires him and his staff to endure a carousel of awfulness. He conceives of them as “a team of specialists who put ourselves in harm’s way and deal with inherently potentially damaging material”. That means being ready with “protective equipment and healthy counselling and support structures and the like. And behaviours, and a culture of safety that supports that. Being able to talk frankly about all that, being as open as possible, is part of that culture.”
And personally? “In some ways, reflecting on all that, I don’t feel it’s done me lasting psychological damage,” he says, matter-of-factly. “I know there is stuff I’ve seen that I will not be able to eradicate. But in the same way that there will be police officers and emergency response crews out on the street who see and experience things they will never be able to forget, I put a lot of this in the same category … If you’ve got a job to do and you are professional and you are making a difference and potentially saving others from similar experiences and harm, it makes it manageable and worthwhile.”
The worst of the materials that have glowed gruesomely from his screen, Shanks volunteers, aren’t those referred by law enforcement authorities, but were encountered when “following up on conversations with a teenager, or someone just going, ‘hey look I saw this thing’, or something that has just been casually dropped in on a forum that I’m looking at trying to track an extremist discourse.” They hit him, yes, but in doing so have brought home a wider point. “I’m a grown man who has signed up for this role, who is as prepared as anyone could be, who has counselling, who has worked very hard on a positive, healthy culture around all this, who thinks about it a lot. I’m getting exposed to this, I can feel the impact it has on me, and yet there are children, literally, with none of that, getting exposed to the same material. And that just reinforces for me the importance of the work,” he says, “and the importance of thinking through how we can make the situation better.”