1st Qld Net Porn Case - Judge finds Act inapplicable

Irene Graham rene@pobox.com
Tue, 29 Oct 1996 23:52:19 +1100


(Posted to a couple lists and individuals who had asked to be advised of
outcome. Apologies to those who receive it more than once).
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As some of you are aware, in August 1995, files containing child
pornography were found in a temporary directory on the Global Info Links
(an ISPs) system by a system administrator. Although no illegal files were
found on the computer equipment seized from a user's home, this resulted in
that user being charged (in February 1996) with possession as well as two
charges of copying under the Queensland Classification of Computer Games
and Images (Interim) Act 1995 which came into effect on 1 July 1995.

The prosecution dropped the possession charge late last week (I have never
been able to comprehend how they would prove that because users could not
access files in that temporary directory, thus a user could not have
custody or control of such files). The case proceeded with the copying
charges yesterday.

In the Ipswich District Court today, following a submission by the defence
barrister, Judge Robertson found that the files were not included within
the definition of a "computer game" within the Act.

In his findings, the judge referred to the definition of a "computer game"
which is defined to include a "computer generated image" "but does not
include a bulletin board". Under the Act, a bulletin board "means a system
of electronically stored information accessible by computer through the
telecommunications network" (which clearly includes the Internet). 

A number of aspects in that regard were covered, which are too lengthy to
go into here but included references to the Acts Interpretation Act and a
ruling(?) by Justice Gibbs Beckworth(?) in the High Court, and not the
least of which was the intent of Parliament in approving the Act. The judge
referred to the Minister for Consumer Affairs, Tom Burns,  (whose portfolio
included censorship) statements during the second reading in March 1995 in
which he told Parliament:
	"This legislation is not intended to be a solution to all the problems
with which we have been confronted by the information technology
revolution. Currently, bulletin boards and the Internet are not
regulated by this legislation.
	The States do not have the constitutional power to regulate the Internet
or specific bulletin board systems.
	If material is downloaded from bulletin boards, that material can be
subject to the Classification of Publications Act."

(Clearly, the Qld Government was not attempting to regulate the Internet or
files downloaded therefrom via the Act being discussed at the time.)

As a result of his findings, Judge Robertson instructed the jury to return
a verdict of not guilty and the accused was discharged.

I, and a number of other people in the court room, had some difficulty
preventing ourselves jumping for joy. That had nothing to do with child
pornography on the Net, it is a result of understanding the technological
realities of using the Internet.

The following background comments are not all necessarily relevant to this
particular case, although most are. Nevertheless, they highlight the
potential for undesirable precedents had the charges had been successful:

- The files were created automatically by the Gopher program on the GIL
system which the user was using. (i.e. the user was not using Netscape etc
to access files by gopher). I doubt most users would know that the Gopher
Program creates/copies files to a temporary directory on an ISP's system.
It was made clear in evidence that the user could not view images when
using that Gopher program, a user would need another program to uudecode
the file and a program to then view images to see what image was in the
file downloaded, if such files were downloaded to the user's computer.

- Most temporary directories are cleared by automated processes after one
or more days. If the files had not been moved to another directory by the
system administrator in this case, they would have been automatically
deleted. (The files were found because the email system failed and it was
necessary to manually view/clear out the temporary directory to make more
space).

- If the possession charges had not been dropped, and had been successful,
it would appear there would have been a precedent where, if a user received
unsolicited email and on seeing what the file contained deleted it, they
could still be charged with possession if their ISP had a copy of that file
on a back-up tape/directory etc. The same would obviously apply to a file a
user accessed by clicking on a web link, not knowing what the file actually
contained, but which was automatically saved into an ISP's proxy cache
directory at the same time the user saw the file contents.

- If the copying charges, which were not dropped, had been successful we
would have a situation where it would seem impossible for anyone in Qld to
"safely" view any information on the Internet which has copyright info
included on it.  If it had been found that the Act intended to construe
that a user "copies" a file simply by accessing it on the Net (which
results in a temporary file in some directory or cache on an IPS's system)
then one would infringe copyright simply by reading a file, on the Web for
example, before the user even knew it was copyrighted. As far as I can see,
to avoid infringing copyright under those circumstances one would need to
ensure that the ISP's system does not create temporary files, or cache,
material a user views.

Queensland Net users should not assume that material obtained from the Net
is not caught by the Act. There is no doubt that material _on a user's
computer harddrive or floppy disks_  is covered by the Act whether it is an
image or text. The outcome of this case may mean that the Crown may
hesitate to proceed with charges against a user in relation to material
allegedly downloaded but found only on an ISP's system,  for the time being
anyway.

Insofar as the Minister's reference to the Qld Classification of
Publications Act is concerned, it should be noted that under that Act a
"child abuse photograph means a photograph or any other image or material
(however produced or reproduced) that....",  the penalty for possession of
which is less than that under the Act referred to above. Imo, it is
unlikely that charges would proceed under the Publications Act in
preference to the Computer Games...Act with regard to material found on a
user's computer.

Disclaimer: I am not a lawyer and I strongly suggest that anyone concerned
about liability or laws in Qld in relation to the Internet or material
received therefrom seek legal advice. It is complex to say the least. I
will be happy to put anyone in touch with the solictor and barrister who
are probably the most knowledgeable in Qld in relation to these issues.

Finally, I am particularly pleased as to the outcome of this case because,
if there had been any other outcome, we would have a situation where the
Government enacts legislation clearly intended to cover certain things and
law enforcement authorities use it for something else. Imo, that is more
dangerous than anything that could be found on the Net.

Justice in this case, imo, was done, notwithstanding that the user has been
under considerable trauma and without his computer equipment for 14 months
and is unlikely to gain any compensation for that.

Regards
Irene

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Irene Graham, Brisbane, Queensland, Australia.  PGP key on h/page.
The Net Censorship Dilemma: <http://www.pobox.com/~rene/liberty/>
"A year from now you may wish you had started today."  Karen Lamb.
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