10 March 2009

The Law and Online File Sharing -- An Australian Example


This case is really interesting for a number of reasons, but paramount among these is that of a law being designed for a particular purpose being literally interpreted and nabbing an unlikely victim. Law enforcement in Australia is generally pretty good. Like all other places there are times when one shakes their head in disgust or disbelief at how laws are interpreted and applied. This might just be one of those occasions where statutory interpretation goes a little bit awry.

Chris Illingworth, a seeming harmless 61-year-old from Maroochydore in Queensland has been charged with distributing child abuse materials over the internet (video capture of the event and inset of Illingworth from here). Illingworth came across a video of a man swinging a child by the arms and thought it worthy of being republished on Liveleak (video sharing site). The man and child in question are part of a circus troupe form Russia (or at least that is the belief) and perhaps this is what the Russians do, start the training of their youngsters and future circus performers at a very young age.

It must be noted that Illingworth has no criminal history relating to child abuse of any kind. An extensive search by police of his home and his computers turned up no images that would violate any provisions of current law.

The video certainly shows the child being swung around. There are probably arguments to be made for and against how violent the swinging is. However, the video ends with a smiling and laughing child.

Where this gets a little scary is the involvement of "experts" who get to offer opinions based on watching a video and through no interview of the alleged victim. In this case the police called in a specialist pediatrician, Susan Cadzow, from Royal Brisbane Children's Hospital. Now, in Cadzow's expert opinion this video represents child abuse and although no injury appears apparent this is irrelevant as there might be hidden injuries that will not manifest until some later time.

If police are going to charge people for this and then the Office of Public Prosecutions is going to proceed with a prosecution, then Australians should be forewarned and thus forearmed that the long arm of the law is gunning for you with seemingly endless powers of interpretation. The law though is helpful to the police as child abuse material "is, or appears to be, a victim of torture, cruelty or physical abuse" where the victim is appears to be under the age of 18.

What is helpful to police about this definition is that it does not require actual abuse to be taking place, it just has to be perceived as abuse and the police can take action.

This begs the question, would a video of say a child contortionist undergoing training and being videoed and then this video is uploaded to the internet constitute child abuse? Or even where the contortionist is performing for money, wouldn't this be child exploitation and subsequently abuse?

So, what were the police thinking in this case and why did they decide to proceed?

It seems that Illingworth is going to become an interesting test case. Although, I am sure Illingworth would rather not be the centre of any test case. Unfortunately, for him this is what he has become.

The case will certainly set a precedent, at least in the Australian jurisdiction, as to what constitutes child abuse and the enforcement of the provisions as they relate to viewing and uploading child abuse material. If the prosecution succeeds on this, then Illingworth is potentially looking at doing up to a maximum of ten years in prison for uploading a couple of circus performers, one of who was under the age of 18.

Scary.

18 comments:

lawbugger said...

have faith in the purposive approach to interpretation sport...

Gururaj said...

Conflict of laws (or "private international law" in civil law countries) concerns which jurisdiction a legal dispute between private parties should be heard in and which jurisdiction's law should be applied. Today, businesses are increasingly capable of shifting capital and labour supply chains across borders, as well as trading with overseas businesses. Increasing numbers of businesses opt for commercial arbitration under the New York Convention 1958.
Solicitors in York

Rob Baiton said...

Lawbugger...

I do and I am hopeful that it works out along those lines.

I guess my point is that it is scary in the sense that if it does not work along purposive lines then who knows where it goes from here.

Secondly, the pain in the arse factor of having to defend yourself against charges such as these where the interpretation of child abuse can be so subjective.

Gotta rail against something I guess :D

Gururaj...

Thanks for dropping by and leaving a comment.

Although, I am happy you dropped by, I have got to say that I am not sure that my post is about a conflict of laws or private international law on an international plane.

I am also pretty sure that the problem identified in the post does not lend itself to commercial arbitration under the 1958 NY Convention.

Nevertheless, I will keep your post in mind next time I am dealing with commercial arbitration and shifting capital and labor supply chains. Until then though I will just assume that your post is some kind of self-generating spam.

lawby said...

can you take action against Gur in York... or jakarta - maybe he is testing your knowledge of conflict of laws??

Rob Baiton said...

Lawby...

Thanks for dropping by and leaving a comment.

Maybe he is. I guess I never thought that my blog would become such a place as people wanting to test my knowledge of law.

So, do you think he is testing my knowledge as it relates to conflict of laws and international spammers?

Because, if he is testing my knowledge on capital and labor supply issues across jurisdictions and commercial arbitration, then this hardly seems the most appropriate post for such, particularly where there is no specific question and only a statement.

In any event, most Indonesian contracts where capital and labor are involved would include clauses relating to the applicable jurisdiction.

Generally, this is an Indonesian court or where ADR mechanisms are chosen such as arbitration then this might be at BANI (Badan Arbitrase Nasional Indonesia or Indonesian National Arbitration Board) or perhaps in Singapore (SIAC / Singapore International Arbitration Center).

International arbitration decisions are not uniformly enforced in Indonesia as a matter of course. They must be confirmed by the Central Jakarta District Court before being enforced. Sometimes, the Indonesian court decides not to sign off on the agreement.

I could go on...

:D

Harry Nizam H. said...

Scary indeed.

lawby said...

so Indonesia is not a signatory to any international convention on arbitration, or do they chose to ignore arbitrated decisions?? Is the Aora case relevant here, which I thought was being arbitrated in the Lion city?

Katadia said...

Interesting post Rob. Did you write a post on that ruling on the lesbian couple's unwanted twin? Did I miss that? :)

Rob Baiton said...

Lawby...

It seems that it is you that wants to test my knowledge of Indonesian law rather than Gururaj :D

KD...

What case on the unwanted twin of a lesbian couple?

boneman said...

well, to be sure, good thing nobody video-taped my Old Man when he would play with my younger brother and i.
Absolutely the funnest time of my childhood, this bear of a man tossing us into the air and catching us, at the same time (first me up, catch Rich, toss Rich up, catch me!

Oh the child abuse!
(bah!)
and...I garantee you, every once and a while one or the other of us would drop, CRASH into the dirt, but, SO?
We'de come up laughing at his concerned face, probing for broken anything (never any) and away we'de go again....though, the LAW was around, though.

Ma would holler at him to not toss us as high!

Katadia said...

The recent high court ruling against an ob/gyn to compensate a lesbian couple for the birth of one of their twin; because the couple had only wanted one child thru IVF but ended up with two!

http://www.canberratimes.com.au/news/local/news/general/lesbians-win-damages-for-second-child/1432928.aspx

http://www.news.com.au/heraldsun/story/0,21985,25079533-25717,00.html

http://www.theage.com.au/news/in-depth/ivf-twins-and-the-law/2007/09/19/1189881594710.html

lawby said...

sorry Rob if it seems that way.... it might be true.... but I just feel that you encourage this being what you are... very few bloggers in the Indo blogspace operate or claim or assert etc to be professional about (some of) their posts... I respect this aspect of your blog. And I think a lot of others do too. The intersection of law and Indo society is indeed a valuable pool to probe..

Ill drop the "bugger" part of my name if you want...

Rob Baiton said...

KD...

Will check out the link.

Thanks.

Rob Baiton said...

Boneman...

Earlier today I was raising my son up into the air (he is a little bit young to be let go at this stage), but he seems to love it and smiles and laughs a lot.

no dropping him in the dirt though.

Lawby...

Bugger or not also bothers me not :D

I do encourage it. I do not know that I am claiming to be professional (maybe I need a disclaimer).

On the earlier questions. Indonesia is a signatory to the NY Convention as I recall.

Generally, Indonesia respects foreign arbitration decisions. There have been some notable exceptions, Karaha Bodas (Pertamina) being one.

To be honest, I have not really been following the Aora case.

lawbug said...

The more I know about the law and the work of judges and lawyer the more I see it as a starting point for decisions and not a basis for decisions. Maybe I have been here too long?

Rob Baiton said...

Lawbug...

Maybe you have.

I have, and consequently the Missus, the Kid, and I will be pulling up stumps and heading back to my kampung downunder in April for an extended, if not permanent, stay.

walgubbber said...

I am interested to know if all the experience as a lawyer you have had here in INdonesia, will count formally, in terms of increasing your job chances in Australia?

care to let us know?? some time...

Rob Baiton said...

Walgubber...

I am kind of hoping that you are in fact lawbugger and just adopting another personality. If not, then walgubber, thanks for dropping by and leaving a comment.

I think the answer is a "depends". The reason being that I am not sure that Australian firms are necessarily looking to recruit the experiences that I have.

Nevertheless, if there was a firm that had a relationship with an Indonesian law firm then perhaps my experiences would increase my chances.

In terms of more general employment outside of a law firm. I think that it increases my chances for specialized consulting work.

However, I am heading back to Australia with a complete change of profession in mind. So, I am not sure that I am looking at capitalizing on my Indonesian legal experience (some might think I am crazy).

I have been here a long time. I started as an Australian Volunteer Abroad (now Australian Volunteers International / AVI). I have never worked on an expat package and enjoyed the luxuries that affords. I have chosen to work under local conditions and on a local salary (sometimes less than what my Indonesian counterparts earn).

I am not complaining and that has been my choice to date. However, I am married and now have a son. So, I think I owe it to both my wife and my son to look at doing work where I am paid what my work is worth.

Hopefully, this answers your question :D

Such is life.