Hello again Dear Reader,
Today I’d like to follow up on a Blog from October titled ‘Fantasising Online. Is it a Crime?’.
If you haven’t read it, might be worth hitting pause here and going back for a read. I can wait.
Ok, in that Blog I posed the question to you, the reader, as to whether fantasising about depraved and illegal issues is a crime in itself.
If I fantasise online with other like minded adults about committing an illegal activity, but don’t initiate any actions or plans to follow through on my fantasies, have I already committed a crime?
Well, now I can provide an update.
Australian journalist Ben McCormack was sentenced today on child pornography charges. He received a three year good behaviour bond and a $1000 fine for having filthy and depraved discussions online with another adult male. He received no jail term, but still has a conviction and will be a registered sex offender.
Now, here I have to take a bit of a quick legal diversion. Sorry. McCormack pleaded guilty to two charges of using a carriage service (the internet) to transmit child pornography. Ok, so what are the actual elements of the charge?
Well, according to Australia’s Criminal Code Act 1995 Section 473.1, child pornography is ‘any material that depicts a person...under 18 years of age...in a sexual pose or sexual activity’.
Ok, so what is material? A video, a picture, a story? Well, according to the same section above, material includes ‘material in any form...capable of forming a communication’.
Right, so there it is. This isn’t just me saying it, this is Australia’s criminal code of law. If you communicate in any fashion on electronic media about child pornography, you are guilty.
(After looking at the American case in the Blog above, I did wonder why McCormack didn’t plead not guilty because it was ‘just fantasies between adults’. Now I know, that’s exactly what he plead guilty to. Talking online about that filth is exactly what he did wrong.)
So now it’s a lot clearer. According to Australian law, if you fantasise about illegal shit like he did online you’ve committed a crime.
And that is the interesting bit. Technically, it wasn’t the conversation that was illegal...it was his use of the internet to have the conversation..
Yep, what he did wrong was use communications technology to discuss his depraved thoughts.
Indeed, in the Ben McCormack case, the prosecution agreed that had the disgusting conversations taken place in “a private setting” and not on the internet, the charges against him could not have been raised. So...he would be guilty of no crime, would still have a career and a reputation.
Think about that for a second. Conversations like his could be happening at any time and any place, but if it’s not on a ‘carriage service’ its all ok according to the law.
Ok, so now we have the answer and the logic, where does that leave us?
Well, firstly it means that if you want to talk filth in Australia, don’t use the bloody internet. And frankly, don’t use any form of electronic communications...sms, phone call, anything electronic. Australian law doesn’t differentiate between types of electronic comms.
Logically, we all know that how people choose to communicate should not be the deciding factor in whether they are behaving illegally or not. At the pub, via letter, telegram, internet, shouldn’t matter.
But we also know that the types of conversations discovered in this case were absolutely deplorable to the community. So, following the logic, it means that the community supports law enforcement using any and all available means, or even ‘glitches’, in our current technology laws to moderate/shape our society’s behavior.
If we can use technology to catch you being a sicko, we will.
We can’t get you for thinking horrible shit, or talking about it at the pub or at home, but thankfully for us, you used the internet, so now your ass is grass.
Agree with it or not, that’s just the way it is.
Ok, up till now I’ve just presented the facts and left you, Dear Reader, to work out how you feel about it.
Didn’t want to shape the argument ok.
But now we’ve reached the end point, it’s time to get off the fence and make a call.
Do we believe in freedom of speech or not? Do we believe in the classic Evelyn Beatrice Hall quote ‘I disapprove of what you say, but I will defend to the death your right to say it’?
Because, unfortunately Dear Reader, that’s the price for freedom of speech, freedom of expression, freedom of thought. Quite often people will think, say or promote ideas that we find abhorrent. They will talk about things that we immediately believe they should not be allowed to say.
And that’s really what this is all about. The prosecutors in this case accept that they were only able to charge and then convict McCormack because he used the internet to converse. You and I both know that how he communicated was not, and should not, ever be the real crime. His crime was the disgusting conversation that we abhor. But alas, there is no law YET to stop what people say in ‘a private setting’. Probably only because we don’t have the technology yet to be able to monitor our people everywhere and all the time.
Maybe, just maybe, there are quite a few of you who think there should be. That the price of free speech is too high and the increasing technological encroachment is worth it.
What McCormack said was utterly disgusting, but... (sigh), I defend his right to say it. Whether at home, the pub or on the Internet, if he is only talking to other adults in a private forum, I support his right to say it. Anything more than that, lock him up, throw the bloody key away. But until then, let him deal with his sickness in his own way (which was to seek professional help).
Really, I think this case is a classic example of how pushing the edge of the free speech envelope makes us all feel very uncomfortable. There’s quite likely a number of readers who want to disagree with me. Intellectually, you might support my logic, but emotionally it just feels totally wrong.
Maybe the price for true freedom of speech and thought is too high a price to pay.
For me, I think the high price is worth it.
Otherwise, as technology and surveillance capabilities improve, concepts such as speech crime and thought crime will ever so slowly become the norm.
And that’s not a solution that I believe belongs in a ‘free’ and democratic society.