Draft ICOP

DRAFT INTERNET CODE OF PRACTICE

INTRODUCTION

The potential information imbalance between internet service providers and consumers, and the risks, security and privacy issues arising from use of internet services, suggest a need for service providers to assume special responsibilities towards consumers.  This Internet Code of Practice is intended to have Signatory service providers maintain good standards of conduct and business practice.

DEFINITIONS

For the purposes of this Code:

“Acceptable Use Policy” means any Signatories Acceptable Use Policy governing the Consumer’s use of its Services.

“Adult Content” means any material which contains nudity, explicit violent or sexual material or depictions of violent or sexual acts, or would otherwise be reasonably considered to be unsuitable for young people.

“Complaint” means a grievance which can be made by any Complainant in respect of any content or any Services available on the Internet.

“Complainant” means a member of the public or a Signatory who makes a Complaint.

“Complaint Report” means a report compiled by the Complaints Panel and more particularly described in Schedule 2, Clause 2.11.

“Complaints Panel” means those persons appointed by the Executive Body as a Complaints Panel.

“Complaints Procedure” means the Complaints Procedure set out at Schedule 2, Clause 2.

“Consumer” means a person or organisation which has a connection to the Internet, and which may optionally provide content either locally or hosted by an ISP.

“Content Provider” means…

“Executive Body/Executive” means the Executive Body established under the Internet Code of Practice.

“Host” means…

“Internet Code of Practice/Code” means the Terms and Conditions contained in this document.

“Internet Service Provider/ISP” means a person or organisation that connects a user/users to the Internet, provides content over the Internet, or provides access to the Internet.

“Objectionable Content” is as defined by the Film, Video and Classification Publications Act.

“Secretariat” means the secretariat of the Executive Board.

“Service” means internet services provided by any Signatory, including but not limited to, internet access provision, content provision, hosting provision and other online services.

“Signatory” means an organisation who has signed up to the Internet Code of Practice.

“Terms and Conditions” means any Signatories standard Terms and Conditions governing the provision of its Services to Customers.

“Working Day” means Mondays to Fridays, excluding public and bank holidays during business hours.

“Young People” means someone under 18 years of age.

Purpose

The Purposes that the Internet Code of Practice is intended to achieve are:

1. To establish confidence in and encourage the use of the Internet;
   

2. To promote positive user relations with the Internet industry;
   

3. To describe standards of good practice and service to be met by Signatory ISPs;
   

4. To promote disclosure of information relevant and useful to consumers so as to allow them to make an informed choice and compare one product with another;
   

5. To promote fair and reasonable behaviour in a consistent and ethical way. What may be fair and reasonable in any case will depend on the circumstances, including the conduct of signatories and consumers;
   

6. To have regard to the need to help protect consumers from increased costs from unsolicited mail, offensive material, and harmful viruses and computer programs.
   

7. To promote online safety, and security education of consumers to foster a more informed and aware population.
   

Objectives

The Objectives that the Internet Code of Practice aims to achieve are:

1. To ensure the fairness and accuracy of disclosure of business Terms and Conditions to the user public and community in general;
   

2. To ensure Signatories provide their services in a responsible manner;
   

3. To ensure Signatories communicate with their customers in a clear, accurate and comprehensible fashion;
   

4. To provide a transparent mechanism for complaint handling for the Internet industry and ensure that complaints against Signatories are handled in a fair, cost-effective and efficient manner;
   

5. To ensure that Signatories have acceptable use policies that assist them to meet the requirements of the Code of Practice, and New Zealand law;
   

6. To ensure that Signatories have information and procedures are in place so Internet users know how to limit access to protect a user from accessing harmful  or objectionable material; so they know how to keep their computer equipment secure; and so they are able to make informed choices about how they and their families or employees use the Internet; for example a link to Netsafe website.
   

7. To ensure Signatories have clear standards of confidentiality and privacy for their customers;
   

8. To ensure Signatories will not knowingly host illegal content or condone illegal conduct, and they will take action when notified about either;
   

9. To ensure Signatories will not knowingly allow their services to be used for the transmission of spam by their customers;
   

10. To ensure ISP staff are aware of the Code and the minimum standards of good practice that are relevant to their area of work;
    

11. To ensure that the code of practice is a living document that can respond to the changing needs of the industry.
    

Scope

The Scope of the Internet Code of Practice is:

1. This Code is not a complete record of the relationship between ISPs and customers, as specific products and services may have their own Terms and Conditions. These Terms and Conditions may include additional rights and obligations for both parties. This Code does not alter or replace those terms in any way.
   

2. The application of the Code shall be uniform and applicable to all of its Signatories without modification or exception.  Signatories may not, accordingly, avoid, by contract or otherwise, the application of the Code.
   

3. While Signatories to the Code are encouraged to be proactive in the development of best or minimum practice, the application of the Code by the executive body shall be reactive and the Signatories will not be monitored for compliance.
   

4. The responsibility for content made available on the Internet rests with the relevant Content Providers.
   

5. The principles set out or established by this Code shall not represent any legal grounds for liability except for compliance with this Code. Compliance with the Code does not necessarily guarantee that Signatories are acting within the law.
   

6. For the avoidance of doubt, nothing in the Code shall be taken to suggest that the executive body will adjudicate on the legality or otherwise of Third Party Content accessible on the Internet whether by Signatories or otherwise.

ISP Rights and Obligations

1. TERMS AND CONDITIONS

Minimum Standard

1.1   ISPs shall present themselves and their services honestly and shall not make false, misleading or exaggerated claims. They shall at all times make available on their websites the following information:

1.2   a clear, written statement of rates;

1.3   a full disclosure of the service and its Terms and Conditions;

1.4   any of their policies that affect their customers;

1.5   the full name, permanent address of the place of trade or business, contact telephone numbers and e-mail address of the ISP.

1.6   Information provided by the ISP shall be clear, accurate, comprehensible, easily accessible and written in plain and intelligible language, avoiding use of technical or legal terms wherever possible.

Best Practice

1.7   Members shall ensure that their rates and Terms and Conditions are made available to the customer before they are liable for the service.

2. ACCESS TO THE INTERNET CODE OF PRACTICE

Minimum Standard

2.1   All Signatories of the Internet Code of Practice must use best endeavours to inform their customers of their adherence to the Code, and of the existence of the Complaints Procedure in the Code.  This shall include the following methods:

• Provide information about the Code along with its Internet service agreements with customers and users;
• Include in a prominent location on their web-sites the logo of the Internet Code of Practice, a statement of support by the ISP of the Code of Practice, and a link to the Code of Practice document;
• Provide a link to the Internet Code of Practice Home Page, which will provide information to the customer about their rights under the Code.
  

3. Services Provided

Minimum Standard

3.1   ISPs shall publish and make available to customers a clear description of each service type offered, this includes any relevant quality standards that the customer should expect from the ISP in providing these services.

3.2   Signatories shall use best endeavours to provide advance notice to their customers of any planned outages to service and to schedule those outages at a time likely to cause the least inconvenience for all customers.

4. Changing Service Providers

Minimum Standard

4.1   Signatories of the Internet Code of Practice shall cooperate in a timely manner with customers who wish to change service providers To minimise or eliminate disruptions to service.

5. Privacy

Minimum Standard

5.1   Signatories of the Internet Code of Practice shall comply with the Privacy Act 1993, and any Privacy Codes developed under it that apply to them. 

5.2   Signatories shall have a clear written privacy policy that is easily available for customers.  They shall take reasonable precautions to prevent unauthorised access to or use of personal information held by Signatory.

6. Staff

Minimum Standard

6.1   Signatories shall ensure that their employees have sufficient knowledge and understanding of the requirements of the Code to enable them to comply with it.  They shall also ensure that relevant staff with knowledge and understanding of the requirements of the Code are identifiable and easily accessible by customers.

6.2   Each Signatory shall notify the executive body of a single point of contact for the Signatory who is authorised to deal with Code of Practice issues.  The contact shall be familiar with the Code complaints procedure.

7. Acceptable Use Policies

Minimum Standard

7.1   Signatories shall publish and enforce an Acceptable Use Policy.

7.2   The Acceptable Use Policy is to include, as a minimum:

• Information to customers about their legal obligations and liabilities in making use of the services provided by the ISP;
• Information to customers about the extent of ISP responsibilities and liabilities in ensuring that customers adhere to their legal obligations;
• A description of practices which are abusive and/or criminal and therefore prohibited; including unsolicited email, breaching the security of other parties’ computer equipment, defamation, offensive or abusive material, and breaches of copyright;
• A statement of the measures that may be taken by the ISP in respect of customers who breach the Acceptable Use Policy.
  

7.3   Each Signatory will make its Acceptable Use Policy available to its customers and the public.  Each Signatory’s Acceptable Use Policy will be a living document, reviewed and updated on a regular basis.

Best Practice

7.4   Where the Signatory allows its customers to on-sell its services to third parties, its agreement with its customer should allow the Signatory to act if the end user of the services does not comply with the Acceptable Use Policy.

8. Computer SECURITY and Responsibilities to Consumers with Infected Computers

Minimum Standard

8.1   Signatories must provide in their AUP a clause that allows for account suspension or disconnection when the ISP becomes aware of connections to any service they provide that causes mass  email forwarding on behalf of third parties, regardless of whether the open relay service is provided intentionally, through misconfiguration, or by other means not authorised by that third party, including but not limited to through a Trojan horse or other viral like process.  Notice given before any disconnection or suspension of services should be reasonable. However, given the seriousness of email forwarding in spreading harmful computer viruses and programs, and for sending unsolicited email, notice may need to be limited in circumstances where the integrity of the ISP’s services are at significant risk.

8.2   Signatories shall take reasonable steps such as links to educated websites, as are necessary to provide customers with information regarding methods that can be used for security of their computers and information while using the Internet.

8.3   Signatories shall be deemed to have taken reasonable steps where they have included, on their Home Page or prominent Web Page, the information required above, or links to sites where such information can be easily found.  The onus for implementing any computer and user safeguards rests solely with the customer.

Best Practice

8.4   Where ISPs provide services that do not have capped fees, they should provide tools to allow customers to moniter new usage, reasonable safeguards to prevent customers from unknowingly incurring excess charges due to the unauthorised use of their computer, such as an alert to the customer if approaching a cap.

8.5   Signatories shall make reasonable efforts to give adequate warnings to customers of serious virus attacks and threats of a similar nature which they are aware pose a significant risk to customers by causing them to exceed any paid-for limit of time or volume.

9. Adult Content

Minimum Standard

9.1   Commercial and public site hosts who are Signatories of the Internet Code of Practice will ensure that the customer whose content is hosted is informed:

• That the site must comply with New Zealand law;
• Of Code of Practice requirements for the content hosted.
  

9.2   Signatories will include in their AUP a requirement that sites that are primarily hosts of that Adult Content are accompanied by suitable on-screen warnings on the home or title page before the Adult Content is viewed; AND/OR managed by subscription enrolments to exclude under-age subscribers.

Best Practice

9.3   Where a Signatory hosts adult content forums, they shall state whether they are moderated or un-moderated.  Where fora are moderated, the method of moderation should comply with industry best practice.

10. Offensive or Illegal Content on the Internet

Minimum Standard

10.1     Where Signatories are dealing with non-commercial customers they should inform them of precautionary steps they can take to protect themselves and vulnerable users from computer misuse and illegal and harmful content on the Internet.  They shall take such reasonable steps as are necessary to provide customers with information regarding supervision and control of minors’ access to Internet content, and the means that customers may use to control this.  This may include information about the availability, use and appropriate application of Internet content filtering software, labelling systems and filtered Internet access services where available.

10.2     Signatories shall be deemed to have taken reasonable steps where they have included, on their home page or a prominent web page, the information required above, or links to sites where such information can be easily found.  The onus for implementing any computer and user safeguards rests solely with the customer.

10.3     Signatories shall not knowingly host illegal content or condone illegal conduct, and they will take immediate appropriate action when notified about either.

10.4     Signatories shall take reasonable steps to ensure that members of the public can find the contact information they need to make a complaint about content or conduct from or by the Signatory’s customers on the Internet.  Signatories will have appropriate procedures in place for handling complaints about content or conduct on the Internet.  This will include informing other ISPs or the Police of possible illegal content or conduct where appropriate.

11. Interactions with other ISPs

Minimum Standard

11.1     Signatories shall use their best endeavours to co-operate with other ISPs over issues involving improper use of the internet such as hacking, unsolicited mail, and hijacked computers in recognition of the fact that these issues create problems for the entire Internet industry.

13. ACTIVATION OF THE INTERNET CODE OF PRACTICE

13.1     The Internet Code of Practice shall come into effect three months after the fifteenth Internet Service Provider has become a Signatory.

Schedule One - Executive Body

1. MEMBERSHIP OF THE EXECUTIVE BODY

1.1   An interim Executive Body shall be established to oversee the operation of the Internet Code of Practice in the first year of operation.

1.2   The interim Executive Body will consist of seven members appointed by InternetNZ in consultation with industry and consumer organisations.  The members shall include:

• Three representatives from the Signatories to the Code. 
• Two consumer representatives approved of or nominated by the Ministry of Consumer Affairs; but including a representative from the Consumers’ Institute if available.
• One representative from InternetNZ.
• An independent chairman.
  

1.3   The Independent Chairman will be confirmed in office by the unanimous agreement of all Signatories within three months of their appointment being proposed by InternetNZ.

1.4   The secretariat services and meeting and travel costs of the interim Executive Body shall be provided by InternetNZ during the first year of operation.

2. Constitution

2.1   The rules and procedures of the Executive shall be included in a Constitution that will be developed by the interim Executive, and may be amended by them by majority vote.  It will include provisions for the following issues (note: where applicable these issues will be as set out in this Code):

• Procedures for Signatories to elect the members of the Executive Body, including an independent chairman;
• Rules and procedures for meetings;
• Rules for voting by the Executive Body;
• Procedures for handling conflicts of interest by members of the Executive Body;
• Procedures for Annual General Meetings;
• Procedures for altering the Constitution;
• The operation of a secretariat to support the Executive Body;
• The method of appointing members of Complaints Board and Panels;
• The method of funding the operation of the Executive Body and the Internet Code of Practice. 

2.2   The Constitution will be made publicly available on the Code of Practice web site.

2.3   At the end of the first year of operation, elections for the Executive Body will be held in accordance with the Constitution.

3. THE COMPLAINTS BOARD

3.1   The Complaints Board shall develop a set of Terms of Reference that outline the rules and procedures by which the Complaints Board must perform its functions under this Code.  The Terms of Reference may be amended by the Executive by a unanimous vote.

3.2   The composition of the Complaints Board is detailed in Schedule Three.

4. Reviews of the Code

4.1   The operation of the Internet Code of Practice will be reviewed after 18 months of operation, and periodically thereafter at the discretion of the Executive Body.  Reviews will be conducted by the Executive Body in consultation with relevant government, industry and consumer organisations.

5. Monitoring

5.1   The Executive Body shall monitor the complaints received under the complaints procedure mechanism for indications of systemic or recurring contraventions of the code, and may take such action as its constitution allows where such contraventions are believed to exist.  The Executive Body may monitor other aspects of the Code as it sees fit.

6. Guidelines

6.1   The Executive Body may issue guidelines as to how it considers the Code should be interpreted or applied, either on its own initiative, or as a result of disputes that have come before the Complaints Board or Panels.

7. Amending the Code

7.1   An amendment to the Code can be proposed at any time by the Executive Body.  Signatories to the Code can propose an amendment at the Annual General Meeting.  Amendments must be passed by a 75% majority of voting Signatories.

8. Education

8.1   The Executive Body shall undertake appropriate activities to ensure that consumers and industry are aware of the Code and understand its obligations.

SCHEDULE TWO - Complaints Procedure

1. Internal Complaint Procedures

1.1   Any consumer complaint directed against a Signatory shall be dealt with promptly, fully, and fairly by that Signatory with the objective of ensuring consumer satisfaction.

1.2   Each Signatory shall have in place procedures for dealing with complaints from consumers that are easy to understand, easy to use, timely and free to consumers.  The staff responsible for complaints shall have a full understanding of the complaint handling procedure.

1.3   Each Signatory shall produce information in plain language which shall explain the following issues:

• How a customer can gain access to the procedure;
• How the procedure works;
• The timeframes within which the procedure will be carried out; and
• The customer’s right to access the Code of Practice Complaints Procedure, when applicable or the legal system if dissatisfied with the Signatory’s decision or the way it has been reached.
  

1.4   Signatories must use reasonable means to bring this information to the attention of their Customers.

2. The Internet Code of Practice Complaints Procedures

2.1   The Internet Code of Practice will establish the following complaints procedure for complaints about possible breaches of the Code of Practice by a Signatory.

2.2   Where a complainant notifies the Secretariat of a complaint, the Secretariat will direct the complainant to contact the relevant Signatory directly if the complainant has not already done so.

2.3   In the event that the complaint is not remedied to the satisfaction of the consumer by the Signatory, recourse may be available through the Complaints Board, at no cost to the consumer or Signatory, using the following procedure.

2.3.1    The Complaints Board will acknowledge all complaints within 5 working days of receipt and pass the complaint to the Signatory for action within 2 working days of receipt.

2.3.2 The secretariat will attempt to resolve the complaint informally by communicating with the parties directly.  Where the complaint is not resolved within 7 working days, and does not appear likely to be resolved within a reasonable timeframe, the chair of the Complaints Board, in consultation with the customer, may refer the complaint to a panel of one or up to three members of the Complaints Board.

2.3.3 Complaints shall only be referred to a panel where the Chair of the Complaints Board considers that they relate to possible significant breaches of the Internet Code of Practice, and are not frivolous or vexatious.

2.3.4 Where complaints are to be heard by a Complaints Panel, the Complaints Board will ask the Complainant to set out the Complaint in writing and to forward the written Complaint to the Board.

2.3.5 The Complaints Board, on receipt of the Complaint in writing, will forward the written Complaint to the Signatory, and will require the Signatory to reply to the complainant and the Complaints Board in a written response within 15 Working Days of their receipt of the Complaint

2.3.5 In the event that the Complaint is not satisfactorily resolved within 15 Working Days after receipt of the Signatory’s written response required above, the Complaints Board Chair may, at their discretion, appoint a Complaints Panel, and refer the Complaint to them.  

2.3.6 The Complaints Panel may make further investigations into the Complaint as it considers appropriate. 

2.3.7 The Complaints Panel shall compile a Complaint Report setting out:

·        the name and address of the Complainant;

·        the name and address of the Signatory or Signatories the subject of the Complaint;

·        the original Complainant’s wording as set out in the Complainant’s Complaint;

·        the manner in which the Complaints Panel investigated the Complaint, including all details of such investigation and the result of any enquiries made by the Complaints Panel into the Complaint and copies of any documents received by the Complaints Panel,

·        all information available to the Complaints Panel concerning the Complainant, the Signatory or Signatories and the Complaint;

·        the conclusions of the Complaints Panel in relation to the dispute;

·        the recommended sanction of the Complaints Panel if they determine that there has been a breach of the Code of Practice.

2.3.8 If the determination is not unanimous, a majority vote shall determine the complaint, but Panels are expected to come to a unanimous view in all cases wherever possible.

2.3.9 The Complaints Panel shall complete the Complaint Report as quickly as possible while giving full consideration to the complaint and the Signatory’s submission, and shall provide the report to the Complaints Board when it is completed. 

2.3.10 The decision of the Complaints Panel and the recommended action shall be considered and where appropriate adopted by the Complaints Board. 

2.3.11  The only findings available to a Complaints Panel are that a Signatory has not met the requirements set out in the Code. The Panel may also recommend a proposed remedy whether or not it finds the Signatory has not met the requirements set out in the Code.

2.3.11 The Complaints Board will provide a copy of the Complaints Decision to the Complainant and to the Signatory within 5 working days of receiving it from the Complaints Panel. 

2.3.12  A Signatory may appeal the decision of a Complaints Panel to the Complaints Board. Any decision of the full Board is final.

2.3.13 After the Complainant and Signatory have received a copy of the report, the Complaints Board may publish it on the Code of Practice website after removing any identifying information about the complainant.

2.4 Where there are repeated breaches of the Code by a signatory, the full Complaints Board may recommend the expulsion of the Signatory. Any such motion must be unanimously agreed by the Complaints Board, and to take effect must be agreed by 75% or more of the Signatories.

3. SITUATIONS WHERE COMPLAINTS WILL NOT BE ACCEPTED

3.1   The Complaints Board may, at its discretion, refuse to act on a Complaint where the subject-matter of the Complaint is the subject of legal proceedings or where the Complaint concerns the legality of material carried on any Internet Services or the Executive may suspend the complaints procedure pending resolution of any related issue or any enquiry by the Courts.

3.2   Where a Complaint appears to the Complaints Board to fall within the remit of a particular regulatory body, the Complaints Board may, on giving the Signatory 10 days notice, refer the Complaint to the body and not adjudicate upon the Complaint.

3.3   The Complaints Board Chair, at their sole discretion, will not accept Complaints which, in their opinion, are vexatious, inexact, or wholly unjustified, trivial or of a minor nature, and the decision of the Chair in the matter shall be final.

3.4   Information on how to make a complaint shall be published at the Code of Practice Web site and a full copy made available on request to the Executive Body.

4. Enforcement

4.1   Where the Complaints Panel decides that a Signatory has breached the Code, the Panel may, taking all relevant circumstances into account, do the following:

• The Complaints Panel may require make a recommendation to the Signatory to remedy the breach of the Code within a reasonable time as agreed by the Board;
• Make a finding that practice of signatory did not meet best practice and requirements set out in the Code.
• Subject to the right of appeal of the Signatory, the Complaints Panel may recommend expulsion of the Signatory from the Code of Practice to the full Complaints Board.
  

4.2   The Complaints Board may choose to publicise the findings of any Complaints Panel as it sees fit.

Schedule THREE – MEMBERSHIP OF Complaints BOARD AND PANELS

1. APPOINTMENT OF BOARD

1.1              The Complaints Board shall consist of a Chair and six to eight other members.

1.2              The Chair of the Complaints Board shall be the same person as the Independent Chair of the Executive Body, appointed by the Code Signatories. That is, they shall be a unanimous appointment of the Signatories.

1.3              Other members of the Complaints Board shall be recruited by the Chair of the Complaints Board, and shall be appointed as members only with the unanimous agreement of all Signatories to the Code.

1.4              Where a vacancy arises in the Complaints Board, it shall be filled by the method specified in 1.2 and 1.3 above.

1.5              Appointees to the Complaints Panel are intended to be independent experts. As such they cannot be employees or in any professional relationship with any Signatory before or during their term as a member of the Complaints Board.

2. APPOINTMENT OF PANELS

2.1              Where a panel is to be created for judging a complaint, the Chair of the Complaints Board appoints either one or three members of the Board to form the Panel.

2.2              The decision of the Chair of the Board – both in the number of Board members in any panel and in which members are appointed – is final.