ISP name suppression proposal needs fixing

POSTED BY Rick Shera
04 February 2011

posted in | Name Suppression | Presentations



Yesterday, I spoke at InternetNZ's very useful workshop on New Zealand's proposed re-write of our name suppression law, along with District Court Judge Harvey, Dr Warren Young of the Law Commission, Tim Pankhurst of the Newspaper Publishers' Association (representing all major daily and weekly newspaper publishers) and David Farrar of kiwiblog.  My interest, as I've noted before, is with section 216, which takes the tradtional DMCA ISP notice and take down/ISP liability/safe harbour model into unchartered territory by using it in a criminal law context.

I think it's strongly arguable that it is futile to have ISPs do anything, once the suppressed material has hit the internet. The benefit in (possibly) restricting further dispersal of the material in New Zealand, when the internet is global and social networks are so effective at viral spread, must be small and getting smaller. That needs to be balanced against the cost and difficulty for ISPs, let alone imposition of any liability

But, now that I've had a chance to look at the proposal itself it in detail, I don't think it is workable anyway, so I proposed an alternative solution at the workshop (on the assumption that we are not going to delete section 216 altogether).  I was gratified to find (without any pre-workshop collusion!) Judge Harvey made a similar proposal.

Here's what I think:

  • The defintion of ISP needs to be limited to firms which host publicly viewable material posted by their customers.
  • There must be a national register of suppression orders accessible by authorised media and ISPs. Authorised media need this and it will also assist ISPs.  It is unfair to impose liability on media for publication where they cannot accurately check what has been suppressed.
  • ISPs cannot legally or technically trawl their systems on the off-chance that a suppressed name might turn up.  The ISP therefore needs to be given direct official notice (e.g. by the Court Registry) of an actual breach of a name suppression order, which is on a website that the ISP is hosting, with URL and/or IP address details of the location of the suppressed material.
  • The ISP is then in a position to at least endeavour to take down, or disable access to, the material.
  • Non-compliance would be a breach of the law, but that goes without saying (just as it does in the telecommunications interception regime).  However, I say "endeavour" above because there will be some instances where take down or disabling access is either impossible or is out of all proportion.  For example, ISPs generally will not have the ability to delete material from a customer's website and taking down the whole website (which may have 100s of pages of perfectly legitimate material) in order to restrict publication of a single name, would be disproportionate.  Imagine the howls of protest if a major newspaper's ISP took down the newspaper's website!  An exception should be created for these types of situations.
  • If ISPs are to have liability then they should also have standing to challenge the validity of the suppression order being granted in the first place, as part of their defence, just as media do.
  • ISPs acting in good faith in compliance with this regime should be given absolute protection from liability, again, just as they are under section 20 of the Telecommunications (Interception Capability) Act 2004.

Most of this is set out in my presentation (although the last slide has not reproduced, but it set out the solution I've expanded above). InternetNZ recorded the workshop, so I assume it will be posted online at some stage - when it is, I'll let you know.

Download my PowerPoint presentation here.

UPDATE 4 February 1:10pm

Amazing irony.  No sooner do I post the above when I see that New Zealand's main weekly business newspaper, NBR, has had to revise a story to delete a suppressed name that it was not aware of

POSTED BY Rick Shera
04 February 2011

posted in l@w.geek.nzName SuppressionPresentations



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