The Green Party will support this bill and the positive changes to enable us to deal more effectively with child pornography.
However, the Greens are sickened by today’s bidding war between ACT and Labour to see who can have the longest sentences. It is bad enough when Labour moves to the right to try to take National’s ground, but it is even worse when it tries to take ACT’s ground.
Under the bill at present the maximum penalty for possession of objectionable material moves from a fine to 2 years. Surely that is enough. It is absurd to move it to 5 years. At 1.30 this afternoon Deborah Coddington issued a press release calling for 5 years. Four hours later Mr Goff falls into line.
Surely, our prime target is the actual pornographers – the people who force children into sexual activity and make money out of distributing images of this activity. They will be hard hit by this bill with a maximum of 10 years jail. But why jump up the penalties for simple possession of objectionable material to 5 years?
One of the problems with this bill in areas that relate to the possession of child pornography is that it extends the definition to images of “young persons who are nude or partially nude” where the images are “reasonably capable of being regarded as sexual in nature.”
This definition, as the Law Society pointed out in its submission, is very loose. The Society of Authors said: “Under this bill it is conceivable that many major works of art, particularly those from the high renaissance, could be seen as objectionable because they depict naked infants, often cherubic, in a way that the censor might deem to be sexual.” Recently, there has been a debate about the images in Germaine Greer’s book, The Boy, with Ms Greer asking why women should not enjoy looking at images of boys as beautiful images rather than pornographic images. It is very hard for the community to come to some general consensus on where to draw the line between what might be beautiful or artistic and what might be pornographic. These issues are very controversial.
This bill makes it even more difficult because it is not just talking about nude images, but also “partially” nude ones. In discussing this problem the Law Society said that it could mean we have to ban many of the music videos on TV that are currently running on three music channels. They are often videos of under-18-year-olds with bare midriffs dancing around projecting some degree of sexuality.
It would be much better to use the more restricted definition of child pornography, in the Optional Protocol of the Convention on the Rights of the Child as the Society of Authors suggested in its submission. This defines child pornography as representations of children engaged in “real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes.”
We want to get the real child pornographers, and any heavy penalties should go on them. Instead, as many submitters to the Government Administration Committee complained, the new 10-year sentence is not confined to child pornographers, but potentially applied to anyone sending out “objectionable” material across the whole field of censorship in the Act worded as “sex, horror, crime, cruelty, and violence.”
Let us look at some of the silliness and inconsistencies that this broad application of the 10-year maximum across all offensive materials could produce.
For instance, last April the censors gave an objectionable rating to an imported magazine called Cannabis Culture on the basis of its “treatment of matters of crime, namely the cultivation and use of cannabis.” So freely distributing a magazine on the cultivation of cannabis, particularly to those 18 years and under, can, under this new law being proposed today, land one in jail for 10 years. Yet the maximum penalty for actually cultivating cannabis is 8 years. So somebody forwarding an email on the cultivation of cannabis to a few friends has a potential of a longer prison sentence than someone with a big marijuana plantation!
I mentioned the person emailing material on cannabis as an introduction to the broader problem of censoring internet communications, which, of course, does not mean that we should not punish those who use the internet to trade child pornography. Of course we should. But if we are looking generally at objectionable material, as this bill is, with “objectionable” defined rather loosely, then email and internet policing poses some problems,a nd the wrong people could get nailed.
One problem, particularly when dealing with possession rather than trading offences, is that we computer users often do not know what we are downloading or what is in attachments. In this bill, for the more serious convictions for possession, the prosecution has to prove the possessor had knowledge of the material. But in several places in the legislation there is what is called a strict liability regime or an absolute liability regime for possession where you cannot use as a defence that you did not know what was in the email or the attachment, or if you did find out what it was once you opened it up and then deleted it, you still might get done because forensics can check out what was on your system prior to deletion.
The absolute liability regime for possession might have been OK pre the internet when dealing with picture books and videos, because it is hard to buy a picture book without knowing pretty much what is in it. This new internet problem was dealt with by the select committee in some respect, in that the Internet Service Providers Association submitted that internet service providers obviously cannot check everything going through their computers. So internet service providers and telecommunication operators were let off the hook by the select committee.
However, we still have the problem of individual computer users potentially being done for images they did not know about, be it pornography or beyond that other various inflammatory objectionable material that might be in people’s incoming emails, attachments, or stuff they download. It could be inflammatory, objectionable material that the computer user may have had no real chance to check out fully or assess.
We can get considerable inconsistencies here where the judgments as to whether to prosecute for internet communications can be done by Department of Internal Affairs staff or the police, maybe with less and less reference to the Office of Film and Literature Classification. There is, under the law, an ability for defendants to refer things to the office, but in practice this will happen rarely with defendants so scared of what is happening, and often involved in plea-bargaining directly with the police.
We should be a bit frightened about what the police judgments might be following their attempt to prosecute Aucklander Bruce Hubbard for an email referring to the American Government “napalming babies” in Iraq, because this offended the American Embassy, which received the email, and Mr Hubbard was prosecuted, although the prosecution was later dropped after a public outcry.
The internet, and now cellphones, are such open ways of communications, with billions of messages and images zooming to and fro, that it would be silly for censorship authorities to be chasing everywhere and filtering everything. There will be a lot of objectionable material circulating and we do not want to imitate Governments such as China with its draconian internet controls. The only real control is to become a more ethically responsible society and, of course, go after the very worst offenders such as the serious child pornography traders. We do not want a huge censorship section in the Department of Internal Affairs or the police.
I do think it is useful for the Office of Film and Literature Classification to have an ability to put an age restriction on offensive language and material, although it has to have the cautions that Stephen Franks referred to. But we also want to take a bit of work off the office and put into effect some of the submissions by the Alice in Videoland shop and the film festival organisers that there could be ways of cross-rating material from other authorities rather than going through time-consuming systems.
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