Return to Internet, Law and Ethics.
Date: Sun, 26 Nov 1995 16:21:00 +1100
Subject: Re: Kennett anti-Internet censorship bill?
Dear Phil,

Here is my reply to the article on Internet Porn. Could you post it to your listserv or discussion group???

Vic


Prosecuting Criminal Pornographers

Victor Perton MLA
Member for Doncaster
victorp@vicnet.net.au
http://www.vicnet.net.au/~victorp/vp.htm

In the first 9 months of 1995, the two Melbourne dailies published over 80 articles on the threat of pornography via the internet. Hundreds of radio broadcasts and television exposes `informed' the public of this threat! The media has created a widespread public concern about access to pornography by minors.

This month the Victorian Government had to legislate to replace the existing system of classification of films and publications which expires at the end of the year. In legislating, the Government and the Parliament decided to deal with the relatively new problem of pornography via the internet.

Public life is never easy. If Parliaments don't deal with the internet, they're characterised as Luddites. If they legislate, they're referred to as `clueless'.

In the last Computer Age (21/11), you published an article by Mike van Niekerk which suggested Victoria would be `wiped off the online map and information industries chased from the state' as a result of the new anti-pornography laws. This perception is based on a fundamental misreading of the wording of the Bill. Had I not spoken to Mr van Niekerk and assessed him as well-meaning, I would have concluded that the selective half-quotes and failure to interview any government member was designed to sell an anti-government message. Quibbles about whether `creation' could be undertaken `unknowingly' were elevated to the status of deep concern about the Bill.

No one I have talked to, including two of the quoted authorities in the article, disagrees with the Government's objectives. Those objectives are to create criminal offences relating to the transmission of objectionable material such as child pornography and vile sadistic material. The offences created are clearly aimed at those who deliberately send the material, deliberately make it available on the web and those who deliberately download it (Yes, we understand that Netscape caches material automatically!).

Anyone reading the legislation would clearly see that it is intended to ensure that the innocent service provider is protected and the `browsing websurfer' is not unwittingly committing a criminal offence. It is clearly not intended to make criminals of those who want to download a picture of a naked man or woman, read Playboy or penthouse online or read sexually explicit material. It will not punish the adolescent demonstrating a healthy curiosity and stumbling across something he or she shouldn't see. However the community clearly wants the Government to act to stamp out purveyors of child porn and sick vile material.

We are not clueless. It is evident that much of the objectionable material comes from jurisdictions outside Australia. The nature of the internet is such that people will shop, gamble and interact out of the reach of the regulatory authorities. However, child pornography and other objectionable material will be the subject of international action.

SERVICE PROVIDERS

Mike van Niekerk writes that "Service providers and providers and telecommunications carriers can defend themselves by saying that they did not know the material was being transmitted through their service." This is a fundamental misreading of the provisions. This lack of understanding is also evident in the quote from a solicitor who incorrectly states that "It shifts a huge burden onto them to prove they didn't knowingly do it."

The burden of proof is the same as for all criminal offences. The prosecution must prove all the elements of the offence. The legislation provides an additional defence under Section 57(2) that `the Defendant believed on reasonable grounds...the material was not objectionable.'

Clause 57 (3) provides that the offence of transmitting, publishing or making available for transmission objectionable material "does not apply to a person who provides an on-line information service or a telecommunication service unless the person creates, or knowingly downloads or copies objectionable material.' This clearly excludes service providers unless they have been criminally culpable.

Clause 58(3) provides that the offence of publishing, transmitting or making available for transmission to a minor material unsuitable for minors of any age "does not apply to a person who provides an on-line information service or a telecommunication service unless the person knowingly publishes, transmits or makes available for transmission to a minor material unsuitable for minors of any age."

The provisions clearly exempt service providers unless they have been knowingly and actively involved in the commission of the offence. In such instances the onus of proof is on the prosecution to prove beyond reasonable doubt that the service provider committed the offence. The onus is only on the defendant once the prosecution has proved the commission of the offence.

Interestingly enough, some critics charge that our legislation will make it too hard to prosecute anyone! They say that only a further loss of privacy can lead to successful prosecutions. The legislation does not diminish our right to privacy. Due process of law must mean that the police and prosecutors must do the hard work and the citizen be protected.

CONSULTATION

The issue of on-line regulation has been the subject of public consultation and media and media coverage since at least 1994. In August 1994, the Standing Committee of Attorneys-General released a report by the Task force on regulatory options. In July 1995 a consultation paper containing draft offence provisions was released. Its availability was advertised in daily papers and on the Internet and over 100 submissions were received from industry groups, academics, and members of the public. The Senate Select Committee has conducted public hearings and invited submissions. It tabled Part I of its report in September 1995 and is due to table its final report on on-line regulation in the next couple of weeks. The Government has taken account of the extensive material in framing this legislation.

The Second reading speech clearly indicates that a national approach will be considered once there are substantive provisions to consider. The challenge is now open to the armchair critics. The Victorian Attorney-General is willing to listen to any suggestions on the appropriate drafting of laws to stamp out the transmission of objectionable material while enhancing the growth prospects of internet and other multi-media business.

Freedom of Speech is a right of all Australians. The protection of this right requires those with expertise to work together to deal with the problems of those who want to flout the boundaries of socially tolerable behaviour.

*******************************************************************

Victor Perton MLA
Melbourne
Australia
http://www.vicnet.net.au/~victorp/vp.htm

                                       Man is still the most extraordinary 
                                       computer of all.

                                       John F. Kennedy 
                                       Speech, 
                                       21 May 1963.


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