New Media submission opposes media regulation
Tech Liberty made a submission to the Media Regulation review run by the Law Commission. The summary of our submission is as follows:
We recognise that "big media" still has a lot of influence in New Zealand but that this influence is declining as the internet gives people the ability to:
- self-publish ("little media")
- share and distribute self-published articles
- publicly critique the work of big media.
This change can be seen in the way that online media such as blogs used to be very reactive to work published in newspapers and TV, but now newspapers and TV are increasingly picking up stories from blogs and other forms of social media.
Much of the rest of the review was about how the media should be regulated but we believe that the need for greater media regulation has not been established.
Defining news media
The review suggests that regulation could be a trade-off for official recognition of news media, and spends a lot of time discussing who would be included in the definition of "news media". We believe any definition would either be so broad as to be useless or so narrow that it would miss out many people and publications that arguably should be covered. This is especially true as journalism continues to develop and change in the internet age.
Special privileges for news media
The review suggests that we need a definition because some laws refer to the news media to bestow special privileges. Our preference is that these privileges should be extended to all citizens (e.g. replace the media "fair dealing" section in the Copyright Act with a more general "fair dealing/fair use" provision for all people) or should be available to all people when they are acting as a journalist.
Furthermore, any organisation that wish to include/exclude "news media" can make their own determinations as to who that is rather then relying on a government mandated definition.
External regulation
We do not believe that there is a need for an external regulator. Indeed, as the internet gives people the means to publicly criticise the output of big media, the need for a regulator is reduced compared to the days when only a very limited number of media companies could get their views out (due to limited airwaves or the need to own a printing press).
Current regulation is also generally quite ineffectual. The original message still goes out and then any correction is ignored as the issue is no longer "news". Regulation tends to be after the fact score-keeping at best.
Any publishing company or journalist who wishes to be taken seriously has the ability to form a group and create their own code of ethics and regulator. The Press Council is an example of this and we do not see why other media groups who wish to be taken seriously could not do the same.
Finally, if there was a regulator our view was that it should be in the form of an Ombudsman with the ability to make morally rather than legally binding decisions.
Malicious speech online
The second part of the review was about harmful speech online.
We agreed that malicious speech online can be a problem just as it is when face to face Furthermore, the nature of the internet means that the malicious speech can both spread further and remain available longer.
We believe that the law is limited in what it can do about people being nasty to each other, either online or in person. Even if current law could deal with these issues, the international nature of the internet and the inevitable jurisdiction issues would mean that only a small proportion of problems could be resolved.
That said, many of the more contentious issues will be conducted by people who know each other well and probably even live in the same area. The law should be able to deal with issues of harassment using existing laws (possibly with the tweaks identified by the Commission to ensure that online communications are definitely covered).
We reject the idea that speech online should be held to a higher standard than any other form of speech.
We do support the creation of a new crime of "malicious online impersonation" with the caveat that it must be very careful not to include obvious cases of parody and other forms of non-serious impersonation.
No ISP responsibility
We oppose any attempt to make ISPs responsible for taking down or blocking information either hosted on their network or available through it. This is because ISPs typically have no visibility or control over the material that their customers might store on servers hosted with the ISP. Typically an ISP will only have one option - passing the request on to the publisher or turning off the entire site. Closing down an entire site would seem a gross over-reaction to the content of one offending post or comment.
It does seem appropriate to us that an ISP might have a responsibility to pass on a takedown message to the site owner (similar to the copyright legislation) or, upon presentation of a suitable court order, reveal the identity of the site owner so that legal action can be taken.
The Infringing File Sharing Act starts today
Welcome to the new world of the Copyright (Infringing File Sharing) Act.
This is the law that:
- Makes internet account holders liable for the actions of others, even when there is no reasonable expectation that they could control their behaviour.
- Will make it very hard for anyone, including universities, libraries, motels and cafes, to offer internet access to their patrons as they can't risk penalties of up to $15,000.
- Can fine people for downloading material that isn't even available for purchase in New Zealand.
- Takes away the right to be assumed innocent until proven guilty, by assuming that complainants are telling the truth, leaving people having to prove that they didn't do something.
While the law comes into effect on September 1st, notices can be sent for activity up to 21 days earlier. This means that you could get a notice for any activity from August 11th onwards - today.
What's covered?
The law is meant to be aimed at people infringing copyright by downloading material without permission over peer to peer (P2P) file sharing - BitTorrent, eDonkey, etc. However it is written in such a way that it might be possible to use it for other forms of online infringement such as downloading from websites or watching streaming video. We'll be testing that further from September 1st.
Who is at risk?
The person whose name is on the internet account. They're liable for the actions of all people who use that internet account.
What can I do to protect myself?
If you're the account holder, make sure you know what everyone who uses your internet is doing. Don't let people use your account if you don't trust them not to download infringing material via file-sharing.
More information
- Our article, What you need to know about the new copyright law.
- Flowcharts showing the processes included in the law (thanks to the TCF).
- Think you can become an ISP/IPAP and thereby pass your liability on to your users? Our article explains why you probably can't.
- 13 reasons why the Infringing File Sharing Act is bad for you by Christopher Wood.
- 3 Strikes NZ website about the new law.
- Information from the Ministry of Economic Development.
- The text of the law.
Quick guide to the new copyright bill
The Copyright (Infringing File Sharing) Bill is a replacement for the abandoned section 92A of the Copyright Act. It provides provisions for media companies to accuse people of infringing copyright, and for those people to be fined by the Copyright Tribunal. It also includes the penalty of disconnecting their internet - but this provision will initially be suspended.
The Bill went through one round of submissions (see ours) but the second reading was done under parliamentary urgency on the 13th of April and it is expected to be passed, still under urgency, on the 14th of April.
Updates: the bill has passed its third reading and will come into effect on September 1st, 2011. The Ministry of Economic Development is consulting on the regulations that will help with the administration of the law.
Improvements
The Bill has some improvements over section 92A:
- It has replaced the overly wide definition of ISP (Internet Service Provider) with the idea of an IPAP (Internet Protocol Address Provider).
- The person accused of infringing copyright now has a chance to defend themselves against the accusations.
- It doesn't make ISPs responsible for making decisions about disconnection - they just have to pass messages between the accuser and the accused.
- It better respects the privacy of account holders.
Major problems
But overall it still has some major problems:
- It makes the person whose name is on the internet account liable for all actions done by any user of that connection. Flatmates will be responsible for the people they live with, businesses will be responsible for their staff, parents will be responsible for their kids, librarians will be responsible for the users of their free internet terminals. Sharing your internet connection will put you at legal risk.
- It includes the idea that the Copyright Tribunal should believe the accusation from the media companies unless the account holder can prove it to be wrong. This is even when these accusations have been proven time and time again to often be substantially inaccurate. There are no penalties for making false accusations.
- It still includes internet disconnection as a penalty. Initially this provision will be suspended but it can be reactivated at the whim of the government. We oppose disconnection.
Political support
National, Labour and the Maori Party are voting in favour of the Bill.
The Greens are voting against it.
Tech Liberty articles about the bill
- Roundup of initial reactions to the bill
- Why we shouldn't accept the media companies accusations as true
- What is an IPAP and what are the differences between IPAPs and account holders?
- Revised section 122MA is no comfort
- Guest post - letter to Simon Power re copyright
- Our submission to the Select Committee.
- Flowcharts explaining some of the processes in the bill
Other articles of note
- David Farrar does an excellent summary of the process.
- The Creative Freedom Foundation's original s92A Blackout campaign.
Website takedowns: a followup
We recently wrote about how an offensive website was taken offline by complaints.
In particular, we talked about the tactics that were used to take them down and whether they were a good thing for the internet or not. The two tactics described were:
- Complaining to the ISP that the site breached their terms of service. We said this risks reducing opinion on the internet to the level of whatever a company's PR department finds acceptable.
- Using copyright complaints over the site's use of a photo without permission. Taking down an entire site over what is arguably a reasonable use of an image is an affront to freedom of speech and shows how dangerous these US-style shoot-first-ask-questions-later copyright laws are.
The article attracted a fair bit of comment both for and against the use of these tactics. We also received some new information and thought it was worth posting a followup.
Taking down websites you don’t agree with
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.)
The website
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 takedown
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:
Remove ISP Liability from the Criminal Procedure Reform Bill
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:
Letter to Simon Power About Copyright Infringement
Tech Liberty was a co-signer on this letter to Simon Power about the Copyright (Infringing File Sharing) Amendment Bill.
The three main areas covered by the letter and briefing are:
- Avoiding the possible reversal of burden of proof when people are accused of infringement (section 122MA).
- Account holder liability for shared internet connections when the account holder would have no way of controlling the users of the connection.
- Mechanism for activating the suspended "account suspension" provisions.
See our other articles about copyright issues in general and this law in particular.
Replacing ISPs with IPAPs – How well have they done?
The Commerce Select Committee has reported back on the Copyright (Infringing File Sharing) Amendment Bill (PDF).
One of the problems in the drafting of such a law is how to define what an ISP is. The obvious approach is "provides internet services" but what about a cafe that gives free wireless access to customers? Or a university that provides services to staff and students? The problem is a lot harder than it looks.
The latest report suggests replacing the definition of "Internet Service Provider" with one for "Internet Protocol Address Provider" or IPAP.
This would avoid ambiguity and focus on the function of an Internet service provider that is relevant to infringing file sharing, namely the provision of Internet protocol addresses.
Of course, this does no such thing as anyone providing any form of internet service must provide an "Internet protocol address" to each person using it. It's inherent to the nature of an Internet connection and, once again, shows that Government isn't very good at technology. Edit: This may be trying to protect providers of low level services such as cabling and fibre.
However, when we look at the full definition, maybe it's not so bad:
IPAP means a person that operates a business that, other than as an incidental feature of its main business activities,
(a) offers the transmission, routing and providing of connections for digital online communications, between or mong point specified by user, or material of the user's choosing; and
(ab) allocates IP addresses to its account holders; and
(b) charges its account holders for its services; and
(c) is not primarily operated to cater for transient users.
A discussed, the inclusion of "(ab) allocates IP addresses" seems a bit unnecessary but overall the definition seems to hold up under scrutiny.
- Orcon and other ISPs would obviously be an IPAP.
- Cafenet supports both transient and account-based users. Should it be an IPAP?
- Universities and libraries would not be an IPAP because of (b) (there is no direct charging although student fees do include provision for services).
- Someone sharing a connection with their friends would not be an IPAP because of (b).
- Citylink would be an IPAP. (Should it be? See discussion in comments.)
- The local coffee shop would not be an IPAP because of (b) and (c).
- Would an Internet cafe be included? They do charge, the users vary between transient and regular.
- Mobile data from Vodafone/Telecom/2 Degrees will not be included for now, because a separate clause delays their inclusion until 1 August 2013.
How have they done? Please help.
Can you think of any cases:
- Where a person or company will be included as an IPAP that shouldn't be?
- Where a person or company that should be an IPAP won't be?
Internet filtering – time to let it go?
It's been over 3 years since the Department of Internal Affairs started their internet censorship trials in New Zealand. Since then (data from June 29th 2010):
Flowcharts for the new Copyright (Infringing File Sharing) Bill
Chris Esther has created some useful flowcharts that help explain some of the processes included in the new Copyright (Infringing File Sharing) Bill. He has very kindly allowed us to repost them here.
