Regulating that new fangled wild west internet thingy

POSTED BY Rick Shera
22 November 2010

posted in l@w.geek.nz | Intellectual Property | cybersafety | Social Media | Name Suppression

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Simon Power - law reform Minister extraordinaire - recently pronounced the internet the "wild west" and has therefore asked to the Law Commission to see how he can plug the gaps.

I've written on this before but there is one aspect that I wanted to highlight and which was my closing comment on Mediawatch on 21 November 2010 where I shared the proverbial soundstage with Alastair Thompson of Scoop.  The link takes you to the Mediawatch main page and Alastair and my discussion starts at about 20:17 into the podcast, which I've include below with Radio New Zealand's kind permission.

Download: Mediawatch_for_21_November_2010_RJS_on_wild_west_internet.mp3

Section 216 of the Criminal Procedure (Reform and Modernisation) Bill will make an ISP criminally liable if it does not take down material when it has reason to believe that material breaches a Court name suppression order.

This is part of a growing list of areas where ISPs are being coerced into regulating the internet.

I say coerced because you'd be forgiven for thinking that these types of provisions are doing ISPs a favour in the way they are written. They make it look as though the ISP is being given a generous get out jail free card, but the sting is in the conditions on which that card is given.

They all follow the same format. - take the material down and you won't be liable.  Useful then to see how far this modus operandi has established itself in this part of the World:

The format has also leapt the divide from the civil to the criminal jurisdiction - slippery slope anyone?

The format proceeds on the basis of a nice wide definition of ISP (different terms are used but the concept is the same) - basically anyone who transmits, hosts or stores anything in the online environment.  It then effectively treats them all as if they were publishers exercising editorial control and scrutiny.  A few hosts may do that but most ISPs will not of course. They are mere conduits.

The beauty then of treating them all as if they were publishers is it enables legislators to frame an implicit assumption that the ISPs will be liable for whatever goes on using their services. Publishers have always had that liability and ISPs are sort of like publishers right? 

Then, having concocted liability where often times there should be none, legislators magnanimously allow ISPs an out ... but only if they act as judge and jury by taking the material down.

And this is the real problem with these regimes.  They force ISPs to bear the cost and risk of what are often very complex factual and legal decisions and open the door to them exercising degrees of control over internet traffic for reasons of their own. So, we have unaccountable, non-transparent, non-reviewable, generally unchallengeable, private, commercial interests effectively making internet censorship decisions they are not qualified to make.

As I said on Mediawatch, I think that is a dangerous proposition.

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