Jessica Colby
Liberty Itch
Imagine you are accused or convicted of a crime in which you acted in self defence, such as in the example in the first article of my series. Maybe you acknowledge that you broke the law but believe the way that the government is depicting your crime is inaccurate. Maybe you believe you are innocent or overcharged, or there are unrecognised mitigating circumstances to your crime.
Regardless, you feel the need to set the record straight, so you decide to post your side of the story on social media or in a blog and include the footage to back up your argument. Your supporters also share your post. Maybe you even fully admit to and take full responsibility for something you did, but still wish to criticise the government and society.
The government agencies are of course not happy about your self-advocacy or the advocacy of your supporters, so they decide to retaliate and charge you and your supporters under posting and boasting legislation. Even if you were to compromise and remove the video, you can still be charged in states such as Victoria, which also criminalises talking about a crime you were convicted or accused of.
I believe footage that documents crimes is a matter of public interest and transparency, and that post and boast legislation will have a chilling effect on the filming of incidents within the community. Footage of an incident can make or break a case in both a court of law and the court of public opinion.
Trying to censor undesirable footage tends to trigger a phenomenon known as the Streisand Effect.
With a lack of publicly accessible video footage, it makes it easier for the government and law enforcement agencies to lie about things that have happened. Ironically, the legislation also makes it more difficult to convict people who have harmed others. Having footage of criminal activity can help secure a conviction and confirm the person on trial is the actual perpetrator. As Napoleon Bonaparte said, “don’t interrupt your enemy while they are making a mistake”.
I would also argue that this legislation will lead to excessive sentencing. Summary offences in South Australia carry a maximum of two years. Proposed post and boast laws carry a maximum of two years. I believe that doubling someone’s sentence simply because they posted about it online is excessive, and it is more sensible to treat filming a crime for notoriety as an aggravating factor during sentencing, as is the case currently.
I also believe this law will be weaponised against people who the government thinks committed a crime but cannot meet the legal standard for a conviction, as in the example of Mr Car Enthusiast mentioned in the first article of this series. Especially when guilt is contested. In fact, lawmakers admit that one of the purposes of this legislation is to give the government a way to punish people even when they can’t prove they committed a crime.
And even if a group of teenagers share a video of hooning in a group chat with comments about how they cool they think it is, I don’t believe using government resources to put them through the legal system is a productive use of those resources. Especially when they were not involved in a crime or the creation of such footage.
There are many people in the community who are fascinated by things that happen to be illegal but who do not participate in illegal behaviour themselves. I believe this legislation criminalises people who are otherwise law abiding, and find it especially concerning that it targets younger people and risks saddling them with a criminal record.
If someone wishes to say that something illegal looks cool, they should be free to say it, regardless. Freedom of expression means allowing people to say things that may not exactly be ideal. Allowing people to support things that are currently illegal allows people to challenge the status quo, which is important in a free society.
The government agencies are of course not happy about your self-advocacy or the advocacy of your supporters.
I question the effectiveness of the legislation even in cases where people are filming crimes purely for the sake of notoriety. A video of a lesser crime may or may not get its perpetrator 15 minutes of fame then fade into obscurity, yet a more serious crime will gain notoriety regardless of whether it was filmed or not.
People who commit crimes of an objectionable nature tend to be targeted and tracked down by internet sleuths who seek to expose them. Trying to censor undesirable footage tends to trigger a phenomenon known as the Streisand Effect: suppressing information can drive more interest and notoriety to the object of censorship.
As for whether such footage causes people to commit crimes, the answer is no. People are responsible for their own behaviour and it is people themselves who choose to engage in criminal behaviour. The existence of such footage does not cause the lack of morality that allows people to violate the rights of others. Stupid people who act out and commit crimes for notoriety did so prior the existence of the internet and will continue to do so despite this legislation.
What this legislation will do is punish people who do not wish to uphold the status quo.
This article was originally published by Liberty Itch.
