[LINK] menace, harass, offence crime (was Re: sick person on the net)
rene.ln at libertus.net
Sat Mar 26 11:02:46 EST 2011
On Fri, 25 Mar 2011 20:01:26 +1000, Andy Farkas wrote:
> On Fri, Mar 25, 2011 at 4:57 PM, Jan Whitaker at janwhitaker.com> wrote:
>> Hampson today pleaded guilty to distributing child exploitation
>> material, using the internet to menace, harass or cause offence and
>> possessing child exploitation material.
> "or cause offence"
> What a strange clause.
> Child exploitation is wrong. But "using the Internet to....cause
> offence" surely must be happening all the time!
Yeah, and the criminal offence (s.474.17 of Cth Criminal Code) is very
broad; and covers not only distributing but also accessing material; and
the prosecution is not required to prove that anyone was, or even claims to
have felt, offended, menaced or harassed - only that "reasonable persons"
would find the speech or activity offensive, menacing or harassing.
Former Sen. Alston announced the govt's intention to introduce such a law
not long after the anti-WTO protests in Sydney in 2002, at which time it
was alleged that some web sites contained commentary etc advocating
violence at the planned protests and this was allegedly menacing to police
(or something like that). IIRC, some Minister asked ACMA to investigate
with aim of getting the pages banned/taken down, but IIRC ACMA determined
that the material did not "promote, incite or instruct in matters or crime
or violence" (one criteria for Refused Classification). So it was
apparently deemed that a very broad and vaguely defined criminal offence
was needed - saves the Parliament having to decide what type of conduct
actually should be illegal.
s.474.17 replaced former s85ZE of the Crimes Act, which did not apply to
web-pages or any other publicly accessible online material (only to email,
phone calls etc), and it required proof that a person was menaced or
harassed, or that the use would be regarded by reasonable persons as being,
in all the circumstances, offensive.
They also increased the max. penalty from 1 year to 3 years, and I don't
think they said why, but imo it's unlikely to be coincidence that
increasing it to 3 years meant police would be able to apply for an
interception warrant to surveil a person they (and the warrant issuing
person) suspect is using in the Internet in a way that they reckon
"reasonable persons" would regard as offensive etc.
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