This will test the states’ role in that grey area between public good, privacy and censorship.
And there could be some interesting unintended consequences with the proposal by the Federal Attorney-General, Michael Lavarch, to provide a federal-law privacy shield against state and territory criminal prosecution over things done in the home.
The difficulty for the states is that the creation of the erotic or violent material occurs within the home. Before it hits the home computer, it is merely electronic bleeps. Before it is transmogrified in the home, it is stored as a computer file of a series of ones and zeroes.
Computer bulletin boards will make regulators think about what they are doing and why they are doing it. Bulletin boards are fundamentally different from earlier forms of distribution. And the difference pushes their use closer to private acts which in recent times (Tasmania excepted) the state has turned a blind eye and away from the more public acts of sale and hire that the state has taken some interest in.
There seems to be three elements in the pattern of state regulatory regimes. The material itself (violent or erotic); what is done with it (possession, distribution, sale or hire); and what affect it has on others (it is offensive; it incites people to violence).
Computer bulletin boards challenge these concepts. At no time does the material exist in a public place. It is only ever on private property.
It presents an interesting legal and social problem. One of the justifications of censorship in the past has been “”offensiveness” both of the material itself and the public and semi-public transactions involving it. Some people find the mere presence of adult shops, plastic-wrap magazines or an X-rated video room offensive.
Computer bulletin-board delivery removes the “”offensiveness” justification for censorship.
The transmogrificaton of electronic pulses into erotic or violent images in the privacy of the home is akin to someone drawing or painting at home, or making their own home video. The material only comes into being in the home. Hitherto, the censor has, with two important exceptions, not been concerned with things created and contained within the privacy of the home.
The two important exceptions are child pornography and material that incites violence like manuals to make bombs. The former is for the protection of children and the latter is to protect everyone against violence. In each case the law has been enforced by making mere possession of these an criminal offence, whereas in the case of non-violent erotica, the law has generally been enforced by focusing on the sale or hire, and not on possession.
Incidentally, if a state bans the bulletin board itself, prosecuting authorities will be in the untenable position of having to download the electronic files and actually create the offending material themselves to get a prosecution.
Michael Lavarch’s recent action and John Hewson’s support of it shows that political parties in Australia are getting stronger on privacy.
However, if Lavarch’s law is to protect from criminal prosecution the actual physical doing and thinking of non-violent erotica in the privacy of the home, surely the mere creation of a computer image of it in the privacy of the home should attract the same protection. Possession of child pornography of violence-inciting material is in another category.
In short, computer bulletin boards might force state politicians to justify the invasions of privacy involved in making it a criminal offence to possess non-violent erotica. It seems bizarre that they will allow the live act, but prohibit its computer replication. In no other area of the criminal law is on-looking regarded as more serious than participating.
It seems that if Lavarch is to give protection to adults for their live erotica he cannot but help at least partially lift the states’ ban on erotic on film, video or computer.