[LINK] menace, harass, offence crime (was Re: sick person on the net)

rene rene.ln at libertus.net
Sat Mar 26 11:02:46 AEDT 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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