ISPs to police NZ name suppression laws (updated)

POSTED BY Rick Shera
05 October 2010

posted in l@w.geek.nz | Legislation | Name Suppression

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The Government has announced proposals to change the law on name suppression.  The Law Commission reported on this in 2009 and no doubt Cameron Slater's ill-advised and ultimately illegal crusade has accelerated things.

The issue that catches my attention though is the proposal for ISPs to effectively be required to police their systems to ensure that suppressed material is taken down, failing which, they will be criminally liable:

Introducing a new offence to capture New Zealand-based Internet service providers or content hosts who do not remove locally hosted suppressed information which they know is in breach of a suppression order, and who fail to block access or remove it as soon as reasonably practicable.

Having lived through 4 years of debate around s92A of the Copyright Act and its proposed replacement, centred on ISPs taking action with respect to repeat copyright infringers, this new proposal raises similar issues:

  1. Who is an ISP?  It's one of those terms of which it can be said you know one when you see one but which is actually quite hard to define in advance. For example, would Google be an ISP in this context?  And, as for the reference to content host - bloggers, cloud providers?
  2. How will an ISP know? I don't think there is any choice but to have a central register as is mooted in the announcement.
  3. What level of knowledge will be required?  Will publication generally or even on a register be sufficient (constructive knowledge) or should an ISP need to have actual knowledge, either because it has stumbled accross the suppression order itself or has had it brought to its attention?  Given that the proposal is for the ISP to be criminally liable if it fails to take down or disable access to the suppressed material once it knows about it, actual knowledge should be required in my view.  The lesser standard seen in section 92C of the Copyright Act "knows or has reason to believe" [empahsis added] is open to abuse in the civil context so even more reason not to adopt it as a ground for deciding criminal liability.

UPDATED: 18 November 2010

Well they certainly didn't waste any time.  Section 216 of the Criminal Procedure (Reform and Modernisation) Bill introduces the ISP liability provision.  It is lifted almost entirely from section 92C of the Copyright Act as I feared it might be.  The issues that are bad enough in a civil context are even worse in a criminal one.

POSTED BY Rick Shera
05 October 2010

posted in l@w.geek.nzLegislationName Suppression

VIEWED 5422 TIMES

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