Anna-lea Russo was a day-time legal volunteer at Arts Law during 2007. The writer wishes to thank Nicholas Hansen, creator of the documentary Rash, for his help with this article.
An anti-crime law was passed in France in March this year to fight the rise of 'happy slapping', the name given to the practice of filming assaults (frequently using a camera phone) which may then be shown to friends of the perpetrators or distributed online. Under France's new law if you film a crime taking place you can be charged as an accomplice to that crime unless you are a professional journalist. While the new law sparked much debate in France about freedom of expression and information, it also raises interesting moral and legal questions about filming or photographing acts of crime.
In Australia there is no specific law against filming crime. In this article we look at some of the issues that artists face when they create artwork that records criminal activity, for example documentary makers or photographers showing a group of graffiti artists in action or a drug deal taking place. The law creates restrictions on freedom of expression where an artwork depicts criminal activity but in addition artists should consider the effect their work may have on others. If the work incites others to engage in criminal activity then clearly this is inappropriate. In this article we look at legal issues only, but clearly there will be much more you must consider if you wish to document criminal activity.
Under Australian law a "person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly". Such a person is often called an accessory. An accessory generally must have knowledge that a crime is being, or will be, committed. A person with this knowledge may become an accessory by helping or encouraging the criminal in some way, or by failing to report the crime. The assistance to the criminal could range from emotional or financial assistance through to physical assistance or concealment.
If you urge someone to do something illegal, you are committing the crime of incitement. Thus, if you arrange to film a crime you could be found guilty of incitement if a court found you were seeking or encouraging the commission of the crime. For example, behaviour that may constitute incitement includes suggesting a specific location, agreeing upon a time or driving someone to a location so that they can commit the crime. Additionally, your finished work could be viewed as inciting, promoting or instructing your audience in the matter of a crime.
Contempt of Court
Contempt of Court will be a criminal or civil offence, depending upon the nature of the contempt. If your work prejudices, or is likely to prejudice, a trial or breaches a court order then you could be found to be in contempt of court. This generally relates not to the actual process of documenting the crime but how you use the work afterwards. For example, if a person has been charged with a crime but his or her full hearing has not been held then your broadcast of footage of the crime or discussion of that person's criminal record could sway a jury when deciding whether the accused is guilty or innocent. This would amount to criminal contempt as it involves "an interference with the due administration of justice either in a particular case or more generally as a continuing process".
Contempt of court can also occur when a court order is disobeyed or breached. For example, a film director or writer would be in an ethically difficult situation where a work was created that depicted a crime taking place or included admissions in relation to a crime. The director may wish to protect the subject, or may have agreed to keep the person anonymous. If the director is ordered by the court to give details about the subject or to hand over the film then the director will be in contempt of court if the director refuses to provide this information or material. Refusing to comply with a court order is generally a civil offence, but will be a criminal offence where the refusal is wilful or contumelious.
If your artwork is one that is required to be classified then you should also keep the classification rules in mind. Classification of films (including moving images and video artwork), computer games and certain publications that are displayed, demonstrated, sold, hired, advertised or publicly exhibited is generally compulsory.
A film, computer game or publication must be refused classification if it:
- describes or depicts sex, drug misuse, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that it offends the standards of morality, decency and propriety generally accepted by reasonable adults;
- describes or depicts a minor who is, or appears to be under 16 in a way likely to offend a reasonable adult; or
- promotes, incites or instructs in matters of crime or violence.
Further detail is found in the classification guidelines regarding the circumstances in which a work must be refused classification.
A film, computer game or publication must be refused classification if it advocates the doing of a terrorist act. If it depicts or describes a terrorist act, but the depiction or description could reasonably be considered to be done merely as part of public discussion or debate or as entertainment or satire, then it will not be considered to "advocate" a terrorist act.
For further information on classification, see our information sheet Classification and Censorship, which can be downloaded for free.
You should also look at the "refused classification" section of the guidelines relevant to your artwork as this sets out what must be refused classification. There are two classification guidelines, these are:
- Film and Computer Games Guidelines; and
- Publications Guidelines.
The filming of Rash
Nicholas Hansen is a director with experience in creating art that documents crime. His documentary Rash focuses on Melbourne's thriving culture of street art. For months Hansen spent nights filming graffiti artists at work. When asked how he dealt with these legal issues Hansen stated that he endeavoured to remain an observer at all times. At no time did he support the commission of the "vandalism" by way of money, or supplies such as paint and in no instances did he drive the graffiti artists around. He states he never provoked or organised for criminal behaviour to occur that wouldn't have otherwise have taken place.
What precautionary steps can artists take when depicting or filming an actual crime?
If you believe it is essential to depict an actual crime in your work you should take appropriate precautionary steps, including:
- do not provoke criminal behaviour which would not have otherwise occurred;
- avoid aiding or abetting and inciting any criminal behaviour by not assisting or encouraging the criminal behaviour in any way;
- avoid creating the impression of condoning criminal behaviour in your work;
- do not give instructions on how to commit a crime;
- stay an outside observer and at no time participate in the crime itself; and
- avoid publishing a work which includes people who are involved in active legal proceedings or commenting on active legal proceedings.
Carefully consider the possible danger that you and your crew might find yourself in and weigh up whether it's worth it. Consider the effect of your work on the public generally and if it is likely to cause serious offence or incite others to criminal activity then it may be inappropriate to create the work. The more serious the criminal behaviour involved the greater the likelihood that it will be refused classification or that you may be required to produce it as evidence. Depicting crime in your artwork presents complex legal and ethical challenges and you should ensure that you and those working with you are fully knowledgeable about the appropriate behaviour and how to avoid or minimise any risk.
 Part 2.4, division 11.2 of the Criminal Code Act 1995 (Cth).
 Part 2.4, division 11.4 of the Criminal Code Act 1995 (Cth) states, "person who urges the commission of an offence is guilty of the offence of incitement".
 Attorney-General v Leveller Magazine Ltd  AC 440 at 449.
 Halsbury’s Laws of Australiaat paragraph 105-5.
 Interview with Nicholas Hansen (Telephone interview, August 2007).