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.
Kiwicon – The government is your friend
The government is your friend and wants you to be happy.
This is the transcript of a speech given by Thomas Beagle at Kiwicon in Wellington on November 6th, 2011.
Government looking at further regulation of speech on the Internet
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.
Government to turn ISPs into censors
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.
Law Commission to Review Official Information Act
The Law Commission is continuing its run of reviewing significant laws (Search and Surveillance Bill, Suppression of Evidence report). This time it's the turn of the Official Information Act 1982. Their work is at a very early stage - they're canvassing views in an attempt to come up with an issues paper to guide further discussion.
Law Commission Clarifies Position
In our recent article, Law Commission Demands ISPs Filter the Internet, we wrote that the Law Commission's report Suppressing Names and Evidence required internet service providers (ISPs) to be able to block access to information hosted on overseas websites.
At the R v Internet seminar in Wellington, Warren Young, Deputy Head of the Law Commission, stated that this was not their intention (while admitting it was badly worded). Rather they only intended for local ISPs to have to take down locally hosted information. While this is somewhat of a relief as it means that we can avoid the necessity of implementing a China-style Internet censorship system, there are still a number of problems with this position.
- It puts the burden on ISPs to remove material when the onus should be on the people who have published the material (i.e. the individual blogger or the site that allowed the comment in their forum). Putting the liability on the ISP is like blaming the local dairy owner for the content of the newspapers they sell.
- Many websites that are popular in New Zealand, such as Facebook and Twitter, are not hosted in New Zealand. While it might be possible to make requests to the individuals discussing suppressed information (and even act against them if they are in NZ and can be identified), this is going to be as successful as King Canute was at stopping the tide.
- While 'responsible' bloggers and media companies may take down material suppressed by the NZ courts, this just means that anyone searching for information will find the myriad of 'irresponsible' sources who probably don't even realise they're in contempt of court.
R vs Internet – First Session
I'm at the R v Internet seminar in Wellington today. As some of the issues discussed are quite important in terms of Tech Liberty (right to a fair trial, Internet censorship, freedom of speech) I'll be giving a brief write-up of the event.
The Old Guard
So far we have heard from the Attorney General Chris Finlayson, Law Professor Tony Smith from VUW and the Solicitor General, David Collins.
Law Commission Demands ISPs Filter the Internet
Updated: see our update to this post.
Sometimes it seems that every day there is another threat to people's abilities to use the Internet. Each special interest group has their own barrow to push, often with honourable intent, that causes them to make impossible or unreasonable demands.
Today's effort is from the Law Commission. They've published their Suppressing Names and Evidence report and it includes the following (recommendation 26 from the report, page 66, PDF):
Where an internet service provider or content host becomes aware that they are carrying or hosting information that they know is in breach of a suppression order, it should be an offence for them to fail to remove the information or to fail to block access to it as soon as reasonably practicable.
Internet Name Suppression Workshop
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.