Webmaster convicted: there is no such thing as “cyberspace”

15/8/2005

A decision by the Auckland District Court has reinforced the Department of Internal Affairs view that there is no such thing as “cyberspace” and Internet offending is committed by real people in real places.

Today, an Auckland webmaster, was ordered to pay fines and costs totalling $6,440 and ordered to do 100 hours community work on 22 charges relating to possession and distribution of videos and pictures of children being sexually abused, women being raped and bestiality.

The Department’s Censorship Compliance Manager, Steve O’Brien, said that part of the man's defence had been that the website he administered from Auckland was based in the United States and, therefore, New Zealand courts had no jurisdiction.

Judge Thomas Everitt disagreed strongly with his argument, stating in his written judgment:
“I reiterate that in coming to this conclusion the Court does have jurisdiction to determine liability under the Crimes Act. I repeat the reasons for my conclusion that this Court does have jurisdiction. It is contrary to common sense and the intention of Parliament that a person such as this offender can escape the Court’s jurisdiction merely by using a server in an overseas country. The actus reus (1) of the majority of action taken by the defendant, as I said earlier, took place in New Zealand.”

Mr O’Brien said that Judge Everitt’s decision strengthens New Zealand’s censorship law, helping it meet the challenges of the Internet.

“We are catching a steady flow of offenders—this was our third case to be sentenced in a week,” Mr O’Brien said, “and the Courts have shown that they will not let offenders hide behind spurious arguments about cyberspace or ‘where is the Internet?’.”

(1) “Actus reus” is the action that must be committed for a crime to have occurred. [Latin: a guilty act]

Summary of offending

In March 2002 the Department received information that a free website was being advertised as offering pictures of young girls being sexually posed.

A Department Inspector accessed the free website and found that it featured videos and pictures obtained from about 50 other websites and included links to those websites. The videos and pictures were, in effect, samples that enticed people to pay to join those other websites.

The Department tracked ownership of the free website to the accused and in August 2002 Department Inspectors and a Police officer executed a search warrant on his business, which he operated from his home.

When interviewed, he told the Inspectors that for two years he had received at least $2,000 a month in commission’s from the owners of the linked websites. Each time a person visited his free website and then paid to join one of the linked sites, he received a share of the subscription.

Inspectors seized his computer and a number of disks. Analysis showed that they held 18 objectionable videos and pictures.

The Department prosecuted him and filed four distribution charges relating to files on his website and 18 possession charges relating to the files on his computer and disks.

At first he pleaded not guilty to all charges. During the trial in May this year he changed his plea on 13 of the possession charges to guilty. He continued to defend the four distribution charges and the five remaining possession charges.

In July Judge Everitt convicted him on all charges. He was sentenced today. He is a 33-year-old webmaster.

Media contact

Vince Cholewa
Communications Advisor Phone 04 495 9350, Cellular 027 272 4270