Possession of Objectionable Computer Files
A man was convicted in 2002 on 44 charges of possessing objectionable
publications. He appealed his convictions. One of the grounds of appeal
was that the jpg files he possessed in his computer were not "publications"
within the meaning of the Films, Videos, and Publications Classification
Act 1993 (the Act). In Goodin v Department of Internal Affairs (unreported, AP11/01, High Court, Gisborne Registry, 24 July 2002, O’Regan
J), the High Court upheld his convictions and ruled that jpg files are
indeed publications.
A "publication" is defined in the Act to mean:
(a) Any film, book, sound recording, picture, newspaper, photograph, photographic negative, photographic plate, or photographic slide:
(b) Any print or writing:
(c) Any paper or other thing
(i) that has printed or impressed upon it, or otherwise shown upon it, any word, statement, sign, or representation; or
(ii) in which is recorded or stored any information that, by the use of any computer or other electronic device, is capable of being reproduced or shown as any word, statement, sign, or representation:
Justice O’Regan decided that if Parliament wanted the definition of
"publication" to include a jpg file, it had to be either a "picture"
or an "other thing".
Picture
The Oxford Dictionary defines picture as "a visible image produced by
an optical or electronic system; esp. the image on a radar or television
screen". Justice O’Regan said that this definition is broad enough to
include an image displayed on a computer screen, but questioned whether
or not it covered an undisplayed image contained in a jpg file stored
in a hard drive. Section 6 of the Interpretation Act says that "an enactment
applies to circumstances as they arise". Since Parliament intended the
Act to cover a broad range of mediums, the judge concluded that the
Films, Videos, and Publications Classification Act 1993 should be interpreted
in light of current technological developments. Information in the form
of an undisplayed image stored in a jpg computer file was consequently
found to be a picture and therefore a publication for the purposes of
the Act.
Other thing
The Court said that it was clear that the "other thing" named in paragraph
c(ii) included hard drives, floppy discs and CDs on which jpg files
are stored, but less clear that it included the individual jpg files
themselves. The Court looked for clues elsewhere in the Act to discover
what Parliament intended "other thing" to mean. Section 123(4) sets
out the ways in which a publication can be supplied or made available:
123(4) ... a publication may be -
(a)supplied ... ; or
(b) made available ... -
not only in a physical form but also by means of the electronic transmission (whether by way of facsimile transmission, electronic mail, or other similar means of communication, other than by broadcasting) of the contents of the publication.
Although the "contents of the publication" could refer to the contents
of a hard drive, Justice O’Regan said this provision was "more apt to
describe the situation where the publication is a file such as a jpg
file" because people tend not to transmit the contents of an entire
hard drive electronically. Section 123(4) therefore supports an interpretation
of "publication" as including not only hard drives, floppy discs and
CDs, but also the folders and files stored on those devices.
Justice O’Regan’s decision confirms the Classification Office’s practice
of treating computer hard drives, floppy discs, CDs, as well as folders
and files of any description stored on hard drives, floppy discs and
CDs, as publications for the purposes of the Films, Videos, and Publications
Classification Act. This means that they can be submitted to the Classification
Office, examined and classified as unrestricted, restricted or objectionable.
This also means that a person can be convicted of an offence under the
Act for illegally making, supplying, distributing, exhibiting and possessing
objectionable publications in his or her computer.
Computer files that have been accessed on the internet are usually copied
by computers and stored in their hard drives. Web browsers such as Explorer
and Netscape can be set to restrict access to restricted or objectionable
website content. It is also possible to purchase filtering software
that attempts to restrict access to objectionable content.
This article on the publication of objectionable computer files may also be of interest.