Responding to the challenges: recent developments in censorship policy in New Zealand.

• Author: Wilson, David

Abstract

Advances in technology over the past decade have created new challenges for New Zealand censorship authorities. In 2002 an article in this journal outlined some of those challenges and recommended changes to address them. In 2005 Parliament made significant amendments to New Zealand's censorship laws. This paper examines those amendments and considers them in light of the earlier recommendations.

INTRODUCTION

In 2002 I wrote a paper, published in this journal, titled "Censorship in New Zealand: The Policy Challenges of New Technology" (Wilson 2002). In that paper I highlighted some of the challenges faced by those who make decisions under, or enforce, censorship law. I also recommended that a number of censorship issues be further considered in light of modern technology, particularly the advent of DVDs and widespread private Internet access. In the four years since the paper was published censorship laws, especially as they relate to child pornography, have undergone considerable change. Penalties have been massively increased, some classification criteria have been made more precise and the application of censorship law to the Internet has been clarified. This article examines how the legislation has changed and how these changes have addressed earlier concerns about censorship law.

The 2002 article raised the following issues for consideration:

* whether the law required amendment in light of changes in technology

* whether the penalties for censorship offences were adequate

* whether the current offence regime reflected the nature of censorship offending, given the widespread use of the Internet

* whether child pornography should be treated differently from other types of objectionable material

* whether depictions of rape or torture should be treated differently from other types of objectionable material

* whether additional investigative powers were required to detect censorship offending

* whether an extension of investigative powers would be desirable and proportionate to the problem

* whether Internet service providers (ISPs) have any liability for content to which they provide access

* the status of new types of material, such as live web broadcasts and streaming video.

This article outlines how those issues were addressed and the other significant features of recent censorship law changes.

In December 2003, the Films, Videos, and Publications Classification Amendment Bill was introduced to Parliament by the Minister of Justice. In March 2004 it was referred to the Government Administration Committee, which had previously inquired into the operation of the principal Act. (2) The Committee received 30 submissions and heard evidence from 18 witnesses. It appointed the Ministry of Justice, Department of Internal Affairs and Office of Film and Literature Classification as advisers, representing the agencies with policy, enforcement and classification responsibilities respectively. The committee reported back the Bill on 30 August 2004 and recommended some important changes to it.

ADEQUACY OF PENALTIES

Historically, penalties for censorship offending had been low. The maximum penalty for possession of objectionable material was a $2,000 fine. Under the same legislation, the maximum penalty for selling a legal publication that was not correctly labelled was a fine of $3,000. The penalty for distributing or supplying objectionable material, knowing that it was objectionable (the most serious offence under the Act), was a maximum of one year's imprisonment. There had been calls for change, to toughen penalties and align them with overseas jurisdictions (ECPAT 2003, Department of Internal Affairs 2002a).

In March 2003 the Minister of Justice stated that the penalties were "clearly inadequate and fail to reflect the fact that the production of child pornography involves the actual abuse of children". The new penalties were to be a maximum of 10 years' imprisonment for supply and distribution of child pornography and a maximum of two years' imprisonment for possession of child pornography (Goff 2003). These penalties would apply only in cases where the offender knew, or had reasonable cause to believe, that the publications were objectionable. In practice, the nature of the images over which people are charged is usually clearly objectionable and their status is seldom challenged.

The select committee heard a submission from child abuse campaigners Stop Demand Foundation and ECPAT advocating a higher penalty for possession offences. These groups argued that the possession offence should be treated as seriously as the supply offence since the demand for child pornography led to child abuse. Although the select committee did not recommend that the penalties be amended, lobbying of Ministers and MPs by the Stop Demand Foundation led to a late revision of the possession penalty (Stop Demand Foundation 2005). The maximum penalty was increased to five years' imprisonment, a significant increase over the original $2,000 fine.

SENTENCING SINCE THE PASSAGE OF THE BILL

Since the Bill was passed the Department of Internal Affairs has prosecuted 41 people for offences involving objectionable material, and 20 have been imprisoned as of 15 December 2006. Though an increase on previous years, the proportion being imprisoned (49%) remains relatively low. This is because the courts are still sentencing for some offences committed before the law change and may only sentence in accordance with the law at the time of offending. (3) Subsequent years are likely to see a significant increase in penalties across the board since all historical offences will soon have been dealt with. Seventeen people have been prosecuted for offences committed since the Act was amended and 13 of them have been imprisoned. The average prison sentence imposed for offences committed since the law changed is 16 months for those convicted of distribution offences and seven months for those convicted solely on possession charges (personal correspondence with the Department of Internal Affairs 2006).

It appears that even before the enactment of the Bill, courts were beginning to sentence more harshly. In the years 1996 to 2002 only 8% of people prosecuted for offences involving objectionable material were imprisoned. In 2003 and 2004, following the announcement of the proposal to increase penalties and widespread condemnation of child pornography, 33% of offenders were imprisoned (Department of Internal Affairs 2004).

LAW CHANGES TO REFLECT CHANGING TECHNOLOGY

The maximum penalty for supply and distribution of objectionable material was increased to 10 years' imprisonment. The definition of the offence of distribution was brought up to date to take account of developments in technology and patterns of offending. The Act originally had required elements of monetary or material gain in order to prove a distribution charge. However, New Zealand experience showed that very few "traders" in objectionable material aimed to do anything other than increase the size, or range, of their collection of objectionable material by exchanges with other "traders".

The Act was amended so that "distribution" included delivering, giving, offering or providing access to a publication. Many offenders send objectionable material to others through chat rooms, in return for new material. Others operate passive distribution systems such as "file-servers" or "peer-to-peer" networks where folders on computers can be opened by other people to take material without the need for the possessor of the material to actively transmit it. Peer-to-peer networks appear to be...