The right to Underbelly DVDs

The nation’s online DVD distributors have joined the Supreme Court of Victoria in patently unnecessary censorship:

BOXED DVD sets of Underbelly will go on sale interstate this week but special rules mean Victorians won’t get their hands on copies.

Distributors Roadshow Entertainment and retail stores have been overwhelmed with advance orders for the Victorian gangland drama. Those orders have snapped up all 60,000 boxed sets produced, with an extra 20,000 now in production. The release, the day after the final episode is aired, comes as Nine confirms there will be a second series of the show, tipped by some to be a prequel to the events shown in the first series.

But Victorians are still banned from seeing the gangland drama. There will be no online sales of the hit series from Roadshow Entertainment or any of the chains they will supply. And the box sets will only be supplied to individual stores, not to the distribution centres of chains with online sales. The online ban will extend even further with online auction site eBay likely to ban sales of the series. An eBay spokesman said the company would be in touch with Victorian authorities and would likely implement a nationwide ban to keep the DVDs out of Victoria. Roadshow Entertainment marketing director Paddy Bryans said all box sets and point of sale displays would carry a sticker or stamp reminding buyers the series was not for sale, distribution or exhibition in Victoria.

“We have taken very seriously our obligations in terms of what the court requires . . . in Victoria,” Mr Bryans said. Legal experts said Victorians who bought the boxed set interstate and watched it themselves at home would likely not fall foul of the law, but anyone who showed it more widely could be charged with contempt.

They certainly have not taken very seriously what the court requires in Victoria, which is the following:

1. That General Television Corporation Pty Ltd and/or any related corporate entity be prohibited from publishing the television series ‘Underbelly’ or any part thereof in the State of Victoria until after the completion of the trial and verdict in the matter of R v [A].

Even putting aside that this ban is limited to Channel 9 and its affiliates, it is a ban is on publishing Underbelly in Victoria, not selling copies to Victorians. And the nameless legal experts (which I’m of course sure they are) have been quoted as stating the law of contempt in a rather uncertain fashion. There’s no ‘likely’ about the legality of Victorians watching Underbelly at home. There’s only twelve or so people in Victoria who will even arguably commit a contempt of court if they watch Underbelly: the jurors who are presently watching the trial of Evan Goussis (the defendant formerly known as ‘A’.) What possible harm could be caused by anyone else watching the trial? I guess they shouldn’t tell a juror – if they happen to know one – about the show, especially the ‘colour’ and ‘music’. But how many people know a Goussis juror?

The blame for this insane overreach by the nation’s DVD distributors of course rests squarely on the Court of Appeal, who – despite acknowledging that any broader suppression order would be illegal – did its best to chill anyone from exercising their freedom of expression:

However, the fact that the above order is directed against the applicant only should not be misunderstood. It should not be treated by persons other than the named applicant as giving them carte blanche to publish any part of Underbelly howsoever the same may have been obtained by them. Obviously, any person with knowledge of the order who saw fit to publish Underbelly in Victoria prior to the verdict in the matter of R v [A] would run a grave risk of being found to have committed a contempt of court.

Grave risk, my arse. Maybe that was true at the time of the judgment – but only for wide-scale publication, otherwise the risk was at best mild –  but the Court knew full well that all the risk virtually disappeared the moment Goussis’s jurors were empaneled.  After that, the sole contempt issue is the possibility that a juror would end up seeing a forbidden DVD; that would, of course, involve the juror completing ignoring a clear order by the court. (Maybe – maybe – there’d also be some contempt issue relating to other gangland trials in the pipeline. But the Court of Appeal’s warning was clearly tied to – and ceases after – the trial of Goussis.)

Here’s hoping that the distributors are just trying to ride the free publicity that King J has given them. If that’s so, good luck to them. But if their restrictions are based on a view of the law, then the law has, once again, pointlessly limited all Victorians’ (and all Underbelly creators’) freedom of expression.

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