overview
overseas
Australia
murderabilia
related
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Censorship
Secrecy
Publishing
related
Profile:
Money
Laundering
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overview
This note considers debate regarding convicted criminals
(or their associates) should be able to financially benefit
from books, films or other accounts of their activities.
It covers -
The
following pages look at the Australian and overseas regimes
in more detail and at restrictions on what has been dubbed
'murderabilia'.
introduction
Governments have traditionally sought to prevent people
from profiting from wrongdoing, confiscating ill-gotten
assets or ordering them to be provided to the wrongdoer's
victims as restitution for financial loss, personal injury
or other damage. Such restrictions have recently taken
the form of 'proceeds of crime' legislation, often accompanied
by law dealing with money
laundering.
There has been increasing debate about whether 'proceeds
of crime' legislation should encompass measures to deny
criminals - or their family and associates - the financial
rewards provided by sale of rights in
- books
- newspaper
or magazine articles
- films
- photographs
regarding
those criminals. Critics have argued that murderers, rapists,
traitors, thieves and other offenders should not be allowed
to make money from telling the story of their life or
of a particular crime (or authorising use of that story
on television or a feature film).
Such criticism has been reflected in enactments such as
the 'Son of Sam' law in New York, withe the state seizing
the literary rights and film rights of notorious offenders.
Opponents of such legislation have attacked it as an unreasonable
restriction on free speech, ie as a form of censorship.
That has provoked a response, in our view a persuasive
response, that offenders are free to express themselves
- proceeds of crime or other legislation does not prohibit
expression per se - but merely do not enjoy the
financial benefits of such expression.
orientations
Salient works on proceeds of crime regimes include The
Proceeds of Crime: The Law and Practice of Restraint,
Confiscation & Forfeiture (Oxford: Oxford Uni
Press 2003) by Trevor Millington & Mark Williams,
Paying for Crime: The Policies and Possibilities of
Crime Victim Reimbursement (New York: Praeger 2006)
by Susan Sarnoff, Freiberg's 'Confiscating the Literary
Proceeds of Crime' in The Criminal Law Review
(1992), Margaret Halliwell's 'Profits from Wrongdoing:
Private & Public Law Perspectives' in The Modern
Law Review (1999) and Tough on Criminal Wealth:
Exploring the Practice of Proceeds from Crime Confiscation
in the EU (Berlin: Springer 2006) by Barbara Vettori.
There have been no comprehensive international studies
of literary rights as a subject of proceeds of crime regimes.
For an introduction to notions of compensation see Restitution
Law in Australia (Sydney: Butterworths 1995) by Keith
Mason and J W Carter can be read in conjunction with other
works on the law of obligations, such as Rosalie Balkin
& J Davis' Law of Torts (Chatswood: LexisNexis
Butterworths 2004), Danuta Mendelson's The New Law
of Torts (Oxford: Oxford Uni Press 2006) and Tort
Law in America: An Intellectual History (New York:
Oxford Uni Press 2003) by G Edward White. There is a broad
examination of issues in Unjustified Enrichment: Key
Issues in Comparative Perspective (Cambridge: Cambridge
Uni Press 2002) edited by David Johnston & Reinhard
Zimmermann. It is more accessible than Peter Birks' Unjust
Enrichment (Oxford: Oxford Uni Press 2005).
The extensive literature on money laundering, such as
Guy Stessens' Money Laundering: A New International
Law Enforcement Model (Cambridge: Cambridge Uni Press
2000) and Peter Birks' Laundering & Tracing
(Oxford: Clarendon Press 1995), is highlighted elsewhere
on this site.
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