Anthony Trenwith: Web roundabout fails to protect porn profiteers

The argument by webmaster and internet-based pornography vendor Philip Batty - who was sentenced in the Auckland District Court last week on 22 charges of possessing and distributing pornographic videos, despite claiming his operations were based overseas - was destined to fail, even in the absence of specific laws governing jurisdictional issues on the internet.

It is easy to think, as Batty evidently did, that files on a server overseas are outside the jurisdiction of the New Zealand courts and their owner is immune from prosecution.

Although it is true that the general rule governing our criminal jurisdiction is that nothing done outside New Zealand can be tried as an offence, section 7 of the Crimes Act deems an offence to have been committed in New Zealand if any part of the offence or any event necessary to the completion of it occurs here.

This applies even if the offender is not actually in the country. As a result, New Zealand law provides our courts with considerable flexibility to bring a case within their jurisdiction - offenders can be liable for their actions at either end of a chain of events.

So the law applies both to acts initiated in New Zealand but completed overseas, and to acts initiated overseas but completed in New Zealand.

Other countries have adopted a similar approach, particularly in response to hackers in one country targeting computer systems in another.

The danger for offenders is that they risk having their trail of offending followed by a trail of prosecution.

It would be perfectly possible, for example, for Batty to find himself facing charges in the United States for the same thing for which he was convicted here. This has happened to others in the United States and, given the sterner approaches taken by some countries to child pornography, cyber pornographers would be well advised to think twice about where they venture.

Sitting in New Zealand and operating a website based overseas does not isolate a person from the local law.

Although the internet is a relatively new medium, many of the idea and approaches surrounding it are not.

From a jurisdictional perspective, Batty's actions would have been no different than if he had been using a telephone, or even letters, to arrange cocaine shipments from one country to another.

It is easy to think that the broad and novel nature of the internet can serve to stymie traditional law. In reality, although much has changed, and continues to change, much more remains the same.

* Anthony Trenwith is an Auckland barrister.