Oral Submission to the Inquiry into the Operation of Films Act

InternetNZ oral submission on the review of the Films, Videos and Publications Act 1993.

Introduction

The Internet Society of New Zealand Inc (InternetNZ) approaches this review with its constitutionally mandated desire to promote the growth and understanding of the internet in New Zealand for the good of all stakeholders whether they be consumers, business users or internet industry participants.

Specific Submissions

• Communication via the Internet should remain within the definition of "publication" and should not be transferred under the auspices of "broadcasting". The Goodin case in the High Court at Gisborne supports this.
• The impossibility of "censoring" the internet must be recognised. This was the conclusion reached when the Technology and Crimes Reform Bill was defeated in 1994 and has been shown in other jurisdictions. Not only is wholesale monitoring/blocking etc not feasible, it is also an unwarranted invasion of privacy and restriction on Bill of Rights liberties such as freedom of speech and of association.
• Education (a-la Internet Safety Group www.netsafe.org.nz) and industry self regulation (a-la Internet Code of Practice and the Department of Internal Affairs' Draft Code of Practice for Internet Usage in Organisations www.dia.govt.nz) are likely to best achieve public interest goals. Consideration should be given to the establishment of an organisation equivalent to the Internet Watch Foundation in the United Kingdom. It is possible that the Internet Code of Practice could be used as a platform for this development.
• In recognition of the fact that preventative policing is likely to be difficult, if not impossible, those who do publish "objectionable" material should be subject to potentially more severe punishment as a deterrent. Search and seizure powers should also be expanded to cover possession alone.
• However, with the potential for more severe punishment must come a defence of inadvertent or unknowing receipt. Spam and disguised porn sites can often result in receipt of objectionable materials without any "criminal intent". These materials may remain in the user's computer cache unbeknown to them. To avoid such a defence being abused, the burden of proof would be on the recipient to show that they received the materials inadvertently or unknowingly. Obviously, the defence would not be available if the materials were found to have been passed on.
• Despite the above conclusions, consideration should be given to a focus on classifying particular websites and other channels in the same manner that particular serial hardcopy publications are classified. Publication of a list of such sites/channels would be deemed to confer knowledge for the purposes of strict liability provisions in the Act.
• Consideration should be given to aligning the definition of what is objectionable more closely with other jurisdictions (e.g. US) although it is recognised that the US in particular has a constitutional structure which is quite different from that of New Zealand.
• It is important for the future of New Zealand's knowledge economy that a holistic approach is taken to reform in the internet area. The changes to be brought in by the Crimes Amendment Bill No.6, the review of copyright laws, proposed Telecommunication Information Privacy Code and case-law alongside, for instance, developments in filtering, all need to be viewed together. Legislation is not necessarily the best method of addressing multi-disciplinary issues in this fast-changing area.
• A particular area of concern for InternetNZ is the position of internet service providers. Consideration should be given to creating a "take down" regime and safe harbour provisions which balance the need to respond quickly to perceived criminal or civil illegality with the difficulties ISPs have in monitoring and determining the legality of information which flows through their systems. Again, different models of industry self-regulation vs. legislative intervention have been attempted in other jurisdictions. InternetNZ favours industry self regulation, at least as a first stage, in partnership with Government agencies as necessary (e.g. DIA, Customs and Police) and working alongside other sibling organisations such as the Internet Safety Group.

InternetNZ is grateful to the Committee for this opportunity to present its submission and would welcome the opportunity of continuing dialogue in this area.

For further information please contact Rick Shera, Vice-President, InternetNZ at Vice-President@internetnz.net.nz; 021 612 713, P.O. Box 11-881, Wellington

Oral Submission made on 17 October 2002 by:

Rick Shera, Vice President, and Chair, Legal & Regulatory Affairs Committee, InternetNZ;
Sue Leader, Executive Director, InternetNZ; and
Stephen Bell, Member, InternetNZ