The safe harbour provisions in the Harmful Digital Communications Bill are a serious threat to online freedom of speech in New Zealand.
How it works
Anyone can complain to an online content host (someone who has control over a website) that some material submitted by an external user on their site is unlawful, harmful or otherwise objectionable. The online content host must then make a choice:
- Remove the content and thereby qualify for immunity from civil or criminal action.
- Leave the content up and be exposed to civil or criminal liability.
The content host has to make its own determination about whether a piece of given content is unlawful (which may be very difficult when it comes to subjective issues such as defamation and impossible to determine when it concerns legal suppression), harmful or "otherwise objectionable".
Furthermore, there is:
- No oversight of the process from any judicial or other agency.
- No requirement for the content host to tell the person who originally posted the content that it has been deleted.
- No provision for any appeal by the content host or the person who originally posted the material.
- No penalty for people making false or unreasonable claims.
We can safely assume that most content hosts will tend to play it safe, especially if they're large corporates with risk-averse legal teams, and will take down material when requested. They have nothing to gain and plenty to lose by leaving complained about material online.
Serious ramifications for freedom of speech
Don't like what someone has said about you online? Send in a complaint and wait for it to be taken down.
This applies to comments on blogs, forums on auction sites, user-supplied content on news media sites, etc, etc. These are exactly the places where a lot of important speech occurs including discussions about politics and the issues of the day. The debates can often be heated, and some sites are well known for encouraging intemperate speech, but these discussions are becoming and increasingly important part of our national discourse.
This law will make it too easy for someone to stop arguing and start making complaints, thereby suppressing the freedom of expression of those they disagree with.
The jurisdiction problem
Of course, this will only apply to websites that are controlled by people who have a legal presence in New Zealand. Overseas websites will continue to maintain their own rules and ignore New Zealand law and standards of online behaviour.
As currently written, these safe harbour provisions are just a bad idea. They're too open to abuse and we believe they're more likely to be used to suppress acceptable speech than to eliminate harmful or "otherwise objectionable" speech. As a very minimum, the complaint should have to be approved by the Approved Agency referred to in the other parts of the Bill.
That said, the whole idea of removing "otherwise objectionable" speech is also quite worrying. The Harmful Digital Communications Bill already has an expansive set of rules about what sort of harmful speech shouldn't be allowed online and this "otherwise objectionable" seems to extend it even further. One of the principles we stand up for here is that civil liberties such as freedom of expression are as important online as they are offline, and this law goes far beyond anything in the offline world.
We hope to have more comment and analysis on other aspects of the Harmful Digital Communications Bill soon.
Text of Tech Liberty's oral submission to the Justice and Electoral Select Committee concerning name suppression in the Criminal Procedure (Reform and Modernisation) Bill. (See our earlier articles.)
I represent Tech Liberty, we’re a group dedicated to defending civil liberties in the digital age.
Our submission concentrates on the issues around suppression. It’s split into two parts, starting with some general comments about suppression in the Internet age, followed by a discussion of some of the difficulties with making internet service providers liable for the actions of their users.
As a civil liberties group, we wish to start by reiterating our support for open justice whenever possible. We believe that the overuse of suppression weakens our justice system and therefore we support the bill’s measures to reduce the availability of suppression. We’re also pleased to see better guidelines about when suppression is appropriate and how it is to be applied.
However, we’re concerned that we’re just rearranging the deck chairs on the Titanic, that suppression is rapidly going to get so hard to enforce that we’re going to have to give up on it - whether we want to or not. This because our ability to store and access information is changing so rapidly.
This is a post about the tactics used to take down a New Zealand website hosted in the the USA and what they mean for the Internet. (Update post.)
Soon after the Christchurch quake, a website (christchurchquake.net) was published that said the quake was God's punishment for Christchurch's tolerance of homosexuality, with God being especially annoyed by Gay Ski Week. The website also made a number of other very odd claims concerning a conspiracy of "Phoenician-descended swamp lesbians" headed by Helen Clark that had taken over New Zealand.
The site is no longer available (Google cache here). This is because a number of people found the site highly offensive, and some of them decided that they would do what they could to get the site taken off the Internet.
The author of the site could not be identified so most action was aimed at getting Bluehost, a company based in the US state of Utah, to take it down. Two main tactics were employed:
Tech Liberty has made a submission to the Justice and Electoral Committee about the Criminal Procedure (Reform and Modernisation) Bill. (See our earlier articles.)
In this we argue that:
- We are strong supporters of open justice and believe that overuse of suppression risks weakening our justice system. We recommend that discretion around suppression should be tightened and that most suppression orders should be for a limited time.
- There are tremendous difficulties with defining "identifying information", particularly when multiple sources may each have a separate piece of information that combine to break suppression.
- That the nature of "publication" is changing as our personal communications are now conducted in public (Twitter, Facebook). We recommend the offence should be changed to punish those who deliberately breach suppression orders.
- The nature of the "media" is changing as the Internet has allowed everyone the ability to publish, and that the law should not try to define a privileged class of media. We recommend removing the special standing for traditional news media.
- That it is unjust to make ISPs responsible for the actions of their customers, and that doing so will lead to false claims. Furthermore that the definition of ISP is unreasonable in that it defines any person who runs a website as an ISP.
- That ISP-based suppression is technically impractical as ISPs often will not have access to individual pages and would therefore often have to take down the entire website or even a server with multiple sites.
- We recommend that clause 216 making ISPs liable should be removed in its entirety.
Download the full submission (PDF).
The attempt to make ISPs (Internet Service Providers) criminally liable for their users' breach of name suppression orders is unjust and unworkable.
The Criminal Procedure (Reform and Minimisation) Bill is an omnibus bill that makes significant changes to the New Zealand criminal justice system. In its attempt to reform and streamline, it weakens the right to a jury trial, takes away the right to silence and forces defendants to help the Police make the case against them.
It also changes the law around name suppression. While we support the attempt to make name suppression harder to get, we have serious concerns about the attempt to make ISPs liable for breaches of name suppression online. Read section 216 of the proposed law and then consider some of these questions:
InternetNZ hosted a workshop about name suppression in the digital age.
The following notes were made at the session. They give a general idea of what was discussed but should not be taken as definitive or complete.
Justice Minister Simon Power claims that "new media" on the Internet is a "wild west" that lacks professional or ethical standards. He says:
Issues I’m concerned about include how trials can be prejudiced by information posted on websites and seen by jurors, real-time online streaming of court cases, breaches of court suppression orders, and re-publication of a libel.
He has asked the Law Commission to review whether current regulations are good enough. This is the same Law Commission that believes that ISPs (Internet Service Providers) should have a responsibility to close down websites and shutdown webservers if they are hosting material that might be in breach of a suppression order.
The report will focus on whether the two existing industry bodies, the Broadcasting Standards Authority and Press Council, could be used to regulate "new media", and whether existing criminal and civil remedies and penalties are appropriate.
These is no mention in the press release of the freedom of expression guaranteed to New Zealanders in the Bill of Rights Act. Nor is there any recognition that many forms of old media such as leaflets, posters and books are also unregulated.
An issues paper is expected by December 2012.
The Government is to tighten up the rules around court-ordered name suppression. The proposed changes are in response to the Law Commission's report recommending that the rules around suppression need to be clarified and that suppression should be harder to get.
Of concern to Tech Liberty is the following from the Cabinet Paper (PDF):
that it be an offence where an onshore internet service provider or content host becomes aware that they are hosting information that they know is in breach of a suppression order, and they fail to block access or remove it as soon as is reasonable practicable;
While on the face it this does not seem completely unreasonable, the devil is in the details:
- Defining exactly what an Internet Service Provider is turns out to be difficult - and is something that the copyright legislation has also struggled with. Does it include a library or cafe providing free internet? What about a publicly shared connection from someone's house? How about ISPs that are only providing wholesale bandwidth to other ISPs - which is responsible?
- What duties do ISPs have to police content hosted on their networks by their customers? What if the server is under the control of the customer and the ISP is only providing internet bandwidth and power?
- How will ISPs and content hosts be able to tell whether material is in breach of a suppression order or not? What if the material is only hinting at the identity - does the ISP have to decide whether it's enough to qualify as a breach and take it down?
- What does "block access or remove it" mean in practice? If ISPs have no admin access to the server hosting the website (as is common when they host other company's servers), will they be forced to take down entire websites or multi-site web-servers to remove a comment posted on a blog?
ISPs as judge/jury/executioner
We fear that this new law will be a repeat of the debacle around changes to the copyright act - trying to force ISPs into having to make complex legal decisions simply because no one else can do it.
It was wrong to make ISPs judge and punish people for breaches of copyright, it's equally wrong to make them judge and punish people for breaches of suppression orders.
Future of suppression
Ultimately, the law changes may be largely pointless once the ease of publishing information on the internet anywhere in the world is taken into account.
We look forward to seeing the final text of the bill and expect that we will be making a submission.
See also Rick Shera's blog post.
Judge David Harvey told the seminar that internet providers (ISPs) should be set up specifically to block suppressed information and issue "take-down" notices to those who had posted it. "Internet content can in fact be managed and controlled. It is a question ... of how far we want to go to do that."
'Alliance' needed to enforce name suppression online, Stuff.co.nz
Seeking to deny the protesters a chance to reassert their voice, authorities slowed Internet connections to a crawl in the capital, Tehran. For some periods on Sunday, Web access was completely shut down — a tactic that was also used before last month's demonstration.
Iran chokes off Internet on eve of student rallies, Yahoo News