Publication of Objectionable Computer Files
Article by David Wilson, former Information Unit Manager
01.07.2007
In 2005 a man was convicted in four charges of making available objectionable publications for gain in breach of ss. 123 and 124 of the Films, Videos and Publications Classification Act 1993. The prosecution resulted from an investigation by the Department of Internal Affairs.
He appealed his convictions. One of the grounds of appeal was that the objectionable computer images in question were not made available in New Zealand, since they were hosted on server in the United States and were intended for an overseas audience. He argued that making the images available in New Zealand should require the person to direct the activity towards New Zealand.
Justice Allan did not accept the appellant’s submission. He noted that the files were placed on a website server so that they would be available world-wide, including to people in New Zealand. The fact that a Department of Internal Affairs Inspector was able to access the files from Wellington was accepted by the Court as evidence of the availability of the files within New Zealand. Justice Allan found that
‘It is irrelevant that the appellant may have believed his primary market to lie elsewhere. It is likewise irrelevant that the server utilised by the appellant was situated in the USA. While in New Zealand, the appellant undertook certain steps to display or make available the images on his website.’
Justice Allan also pointed to s. 7 of the Crimes Act 1961 which provides that:
7. Place of commission of offence—
For the purpose of jurisdiction, where any act or omission forming part of any offence, or any event necessary to the completion of any offence, occurs in New Zealand, the offence shall be deemed to be committed in New Zealand, whether the person charged with the offence was in New Zealand or not at the time of the act, omission, or event.
Justice Allan noted that s. 7 caught the appellant in respect of placing the objectionable images on his website because, without those actions, the images would not have been made available.
The decision provides guidance on the application of New Zealand’s censorship laws to offences with international elements. A person who makes objectionable material available, even if the material is hosted outside New Zealand can be convicted for illegally supplying, distributing, exhibiting or providing access to an objectionable publication. In 2005, Parliament increased the penalties for these offences to a maximum of 10 years imprisonment.