Report on public talk: Open Connectivity, Open Data

Jonathan Penney, the Cyberlaw Fellow at Victoria University gave a public talk about the idea of “internet as a right” and whether there is any basis for this in current New Zealand law.

He started by looking at s14 of the 1990 Bill of Rights Act. This is about freedom of expression:

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

This is obviously strongly influenced by article 19 of the Universal Declaration of Human Rights and article 19(2) of the International Covenant on Political and Human Rights.

These were all described as coming out of a post World War II consensus about access to information called the “free flow paradigm”. This is the idea that information should be unrestricted globally and was possibly a reaction to years of war propaganda and state censorship. The three principles of this are:

  1. Freedom of information as foundational to free expression
  2. The “free flow” principle
  3. Mass media is essential to free expression and free information

This model was challenged by the NWICO paradigm that emerged in the late 70s. This saw that the free flow model gave too much advantage to rich companies and countries, and thought that increased government regulation was necessary to make access to information fairer.

The distinction between those two is is important when it comes to interpreting the NZ Bill of Rights – the framers were surely aware of these battles and chose the much less restricted language of the free flow paradigm. What does this mean for New Zealand? Jonathan Penney drew out two main conclusions:

  • Open connectivity – the internet is an important means of communication and it is easy to see that s14 of the Bill of Rights includes a “negative right” to it. This means the government doesn’t have to provide it, but also can’t block people from it (in the same way that freedom of speech doesn’t mean that the government has to give you a printing press).
  • Open data – access to information ties into open government and democratic participation.

This then has the following implications:

  • Access to different mediums is foundational to the right – you can’t take away access to radio and print and say “Well, at least you’ve still got TV.”
  • State obligations to promote the free flow of information – the Official Information Act and open data.
  • No distinction between citizens and big media for information rights.

Which in practical terms leads to:

  • No internet account termination (as was in s92A of the Copyright Act).
  • The restrictions in the Official Information Act should be read narrowly.