Celebrity Sex Tapes, the Pornography Law, and the Constitutional Court...

The Constitutional Court has accepted and will hear a petition by Farhat Abbas. Abbas is a lawyer and frequently in the news, quite often the subject of the gossip shows himself.

The petition is premised on an argument that the Pornography Law is not draconian enough, particularly that the Elucidations to the law undermine the true intent of the law and as such leave the law inconsistent. The primary focus of the petition is Article 4 and the exception provided for pornographic materials that are produced for reasons of personal use or interest.

It is pretty clear that judges worth their salt strictly interpreting this exception would seemingly have grounds to find that the celebrity sex tapes involving Nazriel 'Ariel' Irham, Luna Maya, and Cut Tari were for personal use and interest. The videos were stolen of a laptop and then uploaded to the internet without the express permission of the videographer or the 'actors' in the amateur films.

This so enraged Abbas that he was inspired to lodge the petition that in essence requests that the Constitutional Court strengthen the draconian nature of the Pornography Law by removing the exceptions from the Elucidations.

Unfortunately, and rather than sticking to the strict legal arguments, Abbas and his lawyer, Bahruddin, have decided that this is a moral issue because the sex depicted in the films is outside of the binds of marriage. The strict legal argument makes more sense and has more likelihood of success. Not to be deterred though, Bahruddin goes on to say, "in the context of pornography, there should be no exception, even for husband and wife. These are the seeds of the eventual destruction of morality."

The petitioners must be beside themselves with the prospect of more celebrity sex tapes to be made and disseminated in Indonesia. The reality is that the pornography law is not going to stop porn. Where there is a will there is a way, and people who want to film themselves will do so pornography law or not, exceptions or not.

It will be interesting to see how the Constitutional Court decides this petition because it gives rise to interesting questions of parliamentary intent and statutory interpretation. It would seem that on a very simple level, the intent of the parliament was to put in place significant restrictions on the production and distribution of pornography. However, it would also seem that the parliament did not have the intent to put in place an absolute ban on pornography, particularly where the offending material was never meant to see the public light of day.

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.