SubmissiontotheJusticeandElectoralCommittee ! onthe ...€¦ ·...

Submission to the Justice and Electoral Committee

on the

Harmful Digital Communications Bill 2013 21 February 2014 Public version. There is no private version.

InternetNZ: Submission on the Harmful Digital Communications Bill 2013 21 February 2014

Contents

Executive Summary ...................................................................................................... 3

Introduction .................................................................................................................. 4

Summary of Issue Areas and Scope .............................................................................. 6

Internet Intermediaries ............................................................................................ 6

Rights online ............................................................................................................. 7

Education .................................................................................................................. 7

Principles ...................................................................................................................... 7

Internet intermediaries ................................................................................................ 8

Clause 17(2)(a): Takedown of, or disabling public access to, material ................... 11

Clause 17(2)(b): Identification ................................................................................ 12

Clauses 17(2)(c) & (d): Correction & Right of Reply ................................................ 13

Freedom of expression ............................................................................................... 15

Safe Harbour ............................................................................................................... 16

Opportunities ............................................................................................................. 17

Other Issues ................................................................................................................ 19

Conclusion .................................................................................................................. 20

APPENDIX A: SUMMARY OF RECOMMENDATIONS .................................................... 21

Executive Summary This submission addresses a number of different aspects of the Harmful Digital Communications Bill, including its potential impact on Internet intermediaries, the technical advisor role, the safe harbour provision, and freedom of expression online. The Bill by its very nature will affect a broad swath of online speech. Many InternetNZ members were concerned by the Bill’s treatment of online speech to the exclusion of offline speech, and so we support the express mention of the Bill of Rights Act in clause 17, which is the provision that enables takedown and other orders. In our submission we offer a set of 11 recommendations, some of which invite the Select Committee to implement specific amendments to existing language, while others merely ask for clarification on certain points, or suggest a deeper discussion be had on certain topics. This submission is the result of a multistakeholder discussion that has unfolded since 2012. We thank all those involved who have participated in the development of this submission.

Introduction

1. InternetNZ’s mission is to promote the Internet’s benefits and uses, and protect

its potential. We want to see a better world through a better Internet. We are

non-‐partisan, and work on a wide range of Internet and related

telecommunications issues on behalf of the Internet Community in New

Zealand – both users and the industry as a whole. We work for New Zealanders

on sharing the gains the Internet can bring, for everyone.

2. We thank the Justice and Electoral Select Committee for the opportunity to make

this submission.

3. InternetNZ wishes to appear before the Committee to speak to this submission.

To organise a suitable time, please contact David Cormack (Communications

Lead) in the first instance: david@internetnz.net.nz or +64-‐4-‐472-‐1600.

4. This submission is the result of a collaborative, multistakeholder discussion that

started in 2012. Following the release of the Ministerial Briefing Paper in August

of that year, InternetNZ held two public workshops – one in Auckland and one in

Wellington – which examined the draft Bill from technical, legal and civil liberties

perspectives, with members of the private sector and government departments

in attendance. Several discussions on various aspects of the proposed regime

have taken place within InternetNZ’s Policy Advisory Group since then, and a

core expert working group has contributed considerable time and thought to

inform the substance of this submission.1

5. InternetNZ supports the Bill in that, particularly through the use of

communications principles and the establishment of an Approved Agency, it goes

towards fostering good digital citizenship. At the same time, the Bill raises

1 InternetNZ thanks the working group members for their contributions: TradeMe and Google, and Rick Shera, David Harvey, David Farrar and Andy Linton, in their personal capacities.

potential issues relating to Internet intermediary liability and human rights,

worthy of the Select Committee’s careful attention.

6. The Bill in its current form has improved from its first draft. InternetNZ

recognises and appreciates the work done by the Ministry to draft legislation

that acknowledges the nature of the Internet environment.

7. Still, it bears mentioning that the Internet is a unique, global communications

network, which is non-‐territorial in nature. The law, however, operates within

jurisdictional restraints. Expectations for “effectiveness” of remedies and

enforcement in the online environment should be tempered accordingly. Neither

the Harmful Digital Communications Bill, nor any law of any country, can

absolutely guarantee the removal of content from the Internet, for example, and

orders directed to foreign parties under cl 17 may not be realised.

8. Enforcement can only be required within the territorial jurisdiction of New

Zealand. Persons located in other countries will not be bound by a District Court

order from New Zealand, absent supplemental cross-‐border coordination with

law enforcement agencies. While the larger Internet intermediaries as “good

corporate citizens” tend to respond cooperatively to orders from other

jurisdictions, other intermediaries may not.

9. The Internet’s non-‐territorial, decentralised and distributed qualities are not

suited towards national and international laws, but ‘soft law’ approaches built on

guiding principles and mutual recognition. Regarding Internet matters,

“standards that are not legally binding but which carry normative and moral

weight,” can be more effective.2 This is where the importance of relationship-‐

building comes into play, and in this respect the role of the Approved Agency

cannot be understated. 2 Cf Dixie Hawtin Internet charters and principles: Trends and insights Global Information Society Watch (2011), available at http://giswatch.org/mapping-democracy/internet-rights/internet-charters-and-principles-trends-and-insights-0.

10. The subject matter of the Bill – digital communications – covers a broad

spectrum of activity, from email, to tweet, to post, to text, hence a large volume

of speech. In practical terms, this Bill must be written so as to provide redress to

those harmed, while limiting liability for intermediaries, and also respecting

freedom of expression online. Despite its short length, and the simplicity of the

10 Communications Principles, the Bill is very complex. This novel regime will

need assessment following its implementation.

Summary of Issue Areas and Scope 11. Our submission focuses on Part 1 of the Bill – sections 17 and 20 in particular –

and considers the potential impact the draft legislation may have on Internet

intermediaries, as well the Bill’s relationship with freedom of expression in the

online environment.

Internet Intermediaries

12. Public policy is increasingly treating Internet intermediaries as necessary parties

to solutions for public policy problems: Internet Protocol Address Providers or

“IPAPs” now help enforce the private economic rights of the entertainment

industry (under the Copyright (Infringing File-‐Sharing) Amendment Act 2011),

“service providers” must now decrypt communications when so ordered for

surveillance purposes (under the Telecommunications Interception Capability

and Security Act 2013) and the Harmful Digital Communications Bill proposes

that both types of “online content hosts” step in to help mitigate and remedy

harmful communications on the Internet. In other words, intermediaries are

being required to invest in activities outside of their core purpose. To keep

compliance costs low, any expansion of new responsibilities for intermediaries

should be narrow. Any requirement of new administrative systems should be

lightweight and flexible.

Rights online

13. People should enjoy the right to freedom of expression online as they do offline.

To ensure that certain remedies and other provisions in the Bill do not encroach

upon those rights, the criteria for assessing harm must be set high, and

conducted on an objective basis, in light of the ways in which society

communicates today. In this vein, InternetNZ strongly supports the express

mention of the Bill of Rights Act 1990 in cl 17(5).

Education

14. Though we do not address education in our submission, we emphasise here that

any plan to reduce cyberbullying and its harmful effects must include non-‐legal

options in order to be successful. The problem of cyberbullying requires a holistic

approach. Online safety education and awareness-‐raising correspond

importantly to the legal part of the proposed solution. The Approved Agency will

play a key role, complimented by judicial involvement where necessary.

Principles

15. InternetNZ’s public and technical policy work is guided by a set of eight policy

principles.3 We invite the Committee to read this submission in light of the

below principles which are relevant to our consideration of the Bill:

16. Laws and policies should work with the architecture of the Internet, not against it. The Internet challenges the conventional pace of the justice system; harmful acts in the digital realm can be quick to injure, but relatively slow to redress. All the same, when law and policy do not incorporate traditional notions of justice and due process they run the risk of being unfair and unbalanced. When Internet-‐related law and policy fails to comprehend and account for how the Internet works, they risk threatening its operation. Internet-‐related law and policy should be mindful of the architecture of the Internet, complementing it rather than working against it.

17. Human rights should apply online. Online and offline, people should be able to exercise their fundamental human rights, such as the right to privacy and the

3 InternetNZ Policy Principles, available at https://internetnz.net.nz/content/Policy-Principles.

right of freedom of opinion and expression. Everyone should respect these fundamental rights in the online environment. Nation States especially have an obligation to see that these rights are protected regardless of whether they are exercised in an online forum or on the street.

18. In the balance of our submission we address issues raised by the Bill and provide

recommendations where relevant. A list of recommendations is appended to

this submission.

Internet intermediaries

19. Clause 17(2) of the Bill empowers the District Court to issue four different orders

against an “online content host” (OCH or the intermediary): 1) To take down or

disable public access to material, 2) to identify an anonymous author, 3) to

publish a correction, and 4) to give the complainant a right of reply. These

orders could help the complainant and support the purpose of this legislation

but, at the same time, they will impose a cost on the intermediary. In this section

we highlight some practical considerations, discuss the capacities in which

intermediaries should be involved, and suggest a modest amendment for

clarification. We then address the orders in turn.

20. Practical considerations. The intent of the Minister and the Law Commission is

that OCHs should not be the first port of call for dealing with harmful digital

communications. Orders for redress should, in the first instance, be directed at

the person who made the communication. Orders against an OCH should only be

made as a “last resort”, should the individual who made the communication fail

to comply.

RECOMMENDATION 1: That the Committee clarify cl 17 to give better effect to this

intent, and amend the Bill accordingly.

21. Another practical consideration is that there will often be multiple OCHs. For

example, a user could use an image hosting service (such as Imgur) to publish a

harmful photo before sharing that photo through Facebook, Twitter and email. It

is considerably more practical to target the user in a takedown order, rather than

issuing orders against multiple OCHs.

22. Internet intermediaries and the “Online Content Host.” The OECD describes

Internet intermediaries in the following way: 4

“Internet intermediaries bring together or facilitate transactions between third parties on the Internet. They give access to, host, transmit and index content, products and services originated by third parties on the Internet or provide Internet-‐based services to third parties.”

23. As the definition would suggest, Internet intermediaries come in all shapes and

sizes and fulfil various functions. As a practical matter, some intermediaries will,

depending on their function, be able to fulfil some of the cl 17(2) orders while

others will not.

24. Based upon the remedies available in the Bill as well as the Regulatory Impact

Statement, InternetNZ understands intermediaries to be involved in two distinct

functions or capacities. That is, in one capacity as a “Content Host” and in

another as an “IPAP.”

25. Content Hosts. To varying degrees, Content Hosts will be able to implement cl

17(2) orders, as discussed below. Where a user has created an anonymous

account, however, the Content Host will not be able to identify them to satisfy a

cl 17(2)(c) order. To fulfil this order, the content host will have to provide the

Internet Protocol address (IP address) associated with the anonymous account

to an IPAP, who will then match that IP address to account information. While

4 OECD (2011), The Role of Internet Intermediaries in Advancing Public Policy Objectives, OECD Publishing, http://dx.doi.org.10.1787/9879264115644-en

some Content Hosts will have systems capable of capturing IP addresses, others

may not.

26. The definition of “online content host” appears overly broad. The history of the

Bill suggests it is intended to cover businesses that allow for the posting and

hosting of content (such as Google, Facebook and Twitter). Yet, the definition is

much broader. It would also cover, for example, individual Facebook users,

given that users have “control” over their own Facebook page with the power to

remove posts and other content. It would also cover organisations such as

schools and businesses with a social media presence or interactive website

features. Are the rights and obligations of OCHs under this Bill intended to be

extended to such individuals and organisations?

27. IPAPs. Internet Protocol Address Providers are defined within section 122A of

the Copyright Act 1994. In relevant part, that section explains that an IPAP is a

person “that operates a business that, other than as an incidental feature of its

main business activities…allocates IP addresses to its account holders.” IPAPs

are, for all intents and purposes, the only entities capable of matching IP

addresses to account holder information. The IPAP definition encompasses this

function.

28. Paragraph 68 of the Regulatory Impact Statement implicates an IPAP’s

involvement, explaining that “in cases where the person conducting the harmful

communication cannot be identified, the court may issues [sic] an order to an

ISP to identify the account using the Internet Protocol address (IP address) at

the relevant time.” 5 Nota bene that, as evidenced by Copyright Tribunal

precedent associated with the “three strikes law,” the account holder identity is

not a perfect substitute for the identity of the wrongdoer.6

5 Ministry of Justice Regulatory Impact Statement: Harmful Digital Communications (November 2013). 6 Cf Tom Pullar-Strecker “Account holders at pirates’ mercy” Stuff (8 Aug 2013), available at http://www.stuff.co.nz/technology/digital-living/9018408/Account-holders-at-pirates-mercy

29. Only some intermediaries act in both Content Host and IPAP capacities, yet a

unifying definition of “online content host” presumes that IPAPs would be in a

position to take down content, and publish a correction or provide for a right of

reply.

RECOMMENDATION 2: That the Committee clarify whether IPAPs are intended to be

treated as OCHs, particularly given that the only type of order that could workably

be made against an IPAP would be an order to disclose identifying information under

cl 17(2)(b), and amend the Bill accordingly.

Clause 17(2)(a): Takedown of, or disabling public access to, material

30. A court order directing an intermediary to remove content may not always result

in removal of content. This could be for a number of reasons, for example an

offshore intermediary could ignore the order, or perhaps the harmful

communication was copied from the intermediary’s platform and distributed via

others. Content traveling around the Internet may remain cached on any given

server in any given jurisdiction for any amount of time. Once content is

introduced to the Internet, it is beyond the capability of any intermediary to

ensure that it is completely removed from the Internet.

31. While cognisant of these constraints, we understand that this remedy goes to

the heart of the Bill. InternetNZ supports the inclusion of this remedy provided

that it only applies to intermediaries in a Content Host capacity, not an IPAP

capacity. One can think of these capacities as “data at rest” and “data in transit.”

It is unworkable for an IPAP to takedown “data in transit.”

32. Building further on this distinction, “data at rest” must be interpreted to exclude

cached data. Data caching is the automated storage of material by an OCH,

through which content is temporarily stored at a location closer to the user, so

the data can be more quickly retrieved. It is a widespread and universally

accepted online function, critical to efficient online services. Orders to takedown

or disable public access to cached data would be impractical, given the

temporary and automated process by which content is cached.

RECOMMENDATION 3: That the Committee amend the Bill to exclude cached data

from any orders able to be made under cl 17(2)(a), adopting the definition

of “cache” from s 92E(4) of the Copyright Act 1994.

Clause 17(2)(b): Identification

33. As explained above, cl 17(2)(b) is the only order that should apply to an OCH

acting in an IPAP capacity, provided that IPAPs are included within the purview of

this Bill. Many IPAPs will have existing procedures for matching IP addresses to

account holder information as a result of the Copyright (Infringing File Sharing)

Amendment Act and Regulations. To allay costs, IPAPs are entitled by law to a

$25 fee for performing this service on behalf of a copyright holder. Whilst the

purpose of the matching request is of a very different nature – enforcement of a

third party’s economic interest versus redress for serious emotional distress –

the intermediary will nonetheless incur a cost.

34. The Regulatory Impact Statement anticipates this order to be used sparingly,

explaining that in 90% of the complaints of harmful digital communications

received by NetSafe the “victim knows the identity of the perpetrator.”7

35. Given that these orders should be few in number, and that IPAPs will have

systems already in place for effectuating the order, InternetNZ does not view the

impact of this order upon the intermediary to be unreasonable.

7 Regulatory Impact Statement, at [69].

36. Lastly, for identification orders directed at content hosts, as with such orders for

IPAPs, it is important to note that while a content host may have details for the

account through which a communication was posted, it cannot show whether a

particular person (in the case of the IPAP, the account holder)8 was the “author”

of a particular communication. It is common, for example, for peers to take

advantage of a Facebook account inadvertently left logged-‐in on a shared

computer to post crude or offensive messages in the account holder’s name.

Another common scenario is a household where an account is held in the name

of an adult, while that person’s children and their friends access the Internet

from their own devices using WiFi. Courts should be very cautious in attributing a

particular communication to the account holder.

Clauses 17(2)(c) & (d): Correction & Right of Reply

37. Unless specific wording was ordered by the District Court, a correction order

under cl 17(2)(c) would require the intermediary to familiarise itself with the

details of the dispute in order to make correction. The intermediary should not

be put in this position. Further, if its correction of the harmful communication

was incorrect, it could be subject to a $20,000 fine under cl 18 if the court did

not consider the mistake to be a reasonable one.

38. Ordering the intermediary to provide a right of reply under cl 17(2)(d) may raise

a more practical concern. The complainant may use the right of reply to post a

harmful digital communication, perpetuating the dispute.

39. Another practical concern is that a correction or right of reply may not be

technically possible for IPAPs. For example, a telecommunications provider

cannot give a right of reply to a harmful text message (except to the extent that

8 See above, n 6.

any person can already send a text message to another person). Corrections are

generally more appropriate in the print media context.

40. We see two possible options to avoid these problems. The first is to collapse

both orders into one, requiring the intermediary to post a pro forma message

indicating that the content has been removed pursuant to the Harmful Digital

Communications Act. Not only would this save intermediaries from having to

correct information, but the pro forma messages would serve a transparency

purpose, by giving some indication to other users of how frequently the regime is

being used.

41. A second option would be for the District Court to determine, based upon

submissions by the parties, to determine the language of the correction or reply.

The Court would then pass this language onto the intermediary, which would

publish the language verbatim.

RECOMMENDATION 4.1: To omit cl 17(2)(d) and amend cl 17(2)(c) along the lines of:

“an order that a notice be published indicating that the material is removed

pursuant to the Harmful Digital Communications Act.”

Or in the alternative,

RECOMMENDATION 4.2: Provide that the language of the correction and/or reply be

determined as part of the court proceedings, and then provided to the intermediary

for publication.

42. The technical practicalities of this order may require some time for the

intermediary to prepare.

RECOMMENDATION 5: That the intermediary receives prior notice from the court

that an order will be made, and an opportunity to comment on the practicalities of

implementing the correction or right of reply.

Freedom of expression

43. InternetNZ maintains that human rights should apply online as they do offline.

We support the intent of cl 17(5), which requires the court to act consistently

with the rights and freedoms in the New Zealand Bill of Rights Act 1990 (BORA).

The express inclusion of this provision is important because the Bill, by its

nature, regulates speech. (As an aside, we believe the Approved Agency should

conduct its activities consistent with BORA as well.)

44. Section 14 of BORA states that “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.” Section 17 provides that “everyone has the

right to freedom of association.” These rights may be “subject only to such

reasonable limits prescribed by law as can be demonstrably justified in a free

and democratic society”.9

45. Provided that the threshold for removal of specific content is sufficiently high

and cl 17(5) is duly acknowledged by the court, the threat to freedom of

expression in this Bill lies not so much within the takedown orders but with the

takedown procedure outlined within the safe harbour, as drafted.

46. Notice and takedown procedures are routinely abused for anti-‐competitive and

counsel, Fred von Lohmann, Google has “seen baseless copyright removal

requests being used for anticompetitive purposes, or to remove content

unfavourable to a particular person or company from our search results.”10

47. As explained below, InternetNZ supports the proposed changes offered to the cl

20 Safe Harbour offered by TradeMe, which goes to alleviate our concerns

9 New Zealand Bill of Rights Act 1990, section 5. 10 http://googleblog.blogspot.com/2012/05/transparency-for-copyright-removals-in.html

regarding the chilling effect on freedom of expression that the misuse of notice

and takedown procedures can produce.

Safe Harbour

48. InternetNZ supports the inclusion of the safe harbour in the Bill. A safe harbour

provides certainty for intermediaries and users. Intermediaries are clear on how

they must respond to user requests for content removal, and, provided they

comply with the safe harbour criteria, are accordingly shielded from legal action.

Users are made aware of the process to follow in seeking that harmful content

be removed. “The reasoning behind these immunities is impeccable,” explains

Stanford Law Professor Mark Lemley, “if Internet intermediaries were liable

every time someone posted problematic content on the Internet, the resulting

threat of liability and effort at rights clearance would debilitate the Internet.”11

Limitation of Internet intermediary liability is one of the OECD’s fourteen

Principles for Internet policy-‐making.12

49. The safe harbour precludes civil or criminal proceedings against an intermediary

for its action in respect of the harmful content in question. This is true provided

that the intermediary, upon receiving notice from the complainant, takes

“reasonable steps as soon as is reasonably practicable to remove or disable

access to the specific content.” Cl 20(2)(b).

50. As presently drafted, the intermediary must take down the content to receive

the safe harbour. There is nothing within cl 20 that acts as a safeguard against

takedown requests for false, vexatious or anti-‐competitive reasons. It is for this

reason that InternetNZ is concerned that the safe harbour may have a negative

impact on freedom of expression – the notice and takedown regime can be

misused as a censorship tool.

11 Mark Lemley, Rationalizing Internet Safe Harbours, 6 J ON TELECOMM & HIGH TECH L 101 (2007). 12 CITE

51. To address these concerns, InternetNZ has worked with others to propose a

number of options for change to the safe harbour, which we will submit to the

Select Committee for consideration.

RECOMMENDATION 6: That the Committee adopt the proposal jointly put forth by

TradeMe, InternetNZ, Consumer and others, regarding the safe harbour and amend

the Bill accordingly.

Opportunities

52. With this Bill, New Zealand will introduce a novel administrative and legislative

model to mitigate the harm of harmful digital communications. Other

jurisdictions will look to New Zealand’s model for guidance when developing

their own national responses to the issue. The HDC Act thus represents an

opportunity to set a high standard for others to follow.

53. Technical precedent. InternetNZ supports the intent of cl 15, which is to ensure

that orders made towards intermediaries by the District Court are realistic and

not overly burdensome. We believe that the technical advice could develop into

a valuable corpus of evidence for future policymaking involving Internet

intermediaries.

54. The input and advice from technical advisors is particularly important given that:

a. OCHs are unlikely to participate in court proceedings and so may not

be able to offer technical and operational input. We recommend that

they have the right to participate in court proceedings, though they

may choose not to participate;

b. OCHs have no right to appeal an order made under cl 17(2); and

c. If an order is technically or operationally impractical, an OCH may be

committing an offence under cl 18, unless it can show it had

reasonable excuse for not complying.

RECOMMENDATION 7: That the Committee amend the Bill to require that technical

advice be published, and that an annual report of the number of cl 17(2) orders

issued per year also be made publicly available in the interest of transparency.

55. We believe that further information relating to the substance of the Technical

Advisor’s advice, as well as to the appropriate qualifications of the Advisor,

should be described in regulations. We wish to reserve the opportunity to

further submit on this matter during the Select Committee process. At a

minimum, the advice should cover the following:

• Whether the order sought is technically feasible at any cost • What the cost of implementing that order would be for the intermediary,

using hours of an expert’s time as the measure • What the cost of maintaining that order would be for the intermediary, using

two measures: o Hours of an experts time o Effect on the operation of the systems. i.e. does it result in higher

computational load? etc. • An assessment of whether the outcome of the order is likely to be that

sought, given technical factors.

56. Periodic Review. The Internet is a dynamic thing, and the online landscape could

look quite different in a year’s time. To ensure that the regime proposed by the

Bill is adequately addressing its stated purpose, we encourage the Select

Committee to provide for periodic review of the legislation. This review should

take into account the technical evidence collected under the technical advice

provided for in cl 15.

RECOMMENDATION 8: That the Committee amend the Bill by inserting a clause

requiring review of the Harmful Digital Communications Bill, and the effectiveness of

the regime in general, after a number of years.

Other Issues 57. We strongly support the decision not to provide for suspension or termination of

Internet access as a cl 17 order. We note this reflects the Law Commission’s

recommendation.

58. Regarding commencement of District Court proceedings, we support the

decision that actions may only be brought by natural persons, rather than

companies. This is consistent with the purpose of the Bill and may reduce the use

of the civil enforcement regime for actions against business competitors.

59. Definitions. The Bill contains definitions in places other than the Interpretation

section (e.g. “specific content” in cl 20).

RECOMMENDATION 9: That the Committee amend the Bill so that all definitions are

included within the interpretation section, for the purposes of clarity.

60. Principles. We suggest two amendments to the language of Communications

Principles numbers 1 and 6.

61. As presently drafted, Principle 1 tends to go against an individual disclosing their

own sensitive personal information. We suggest the principle be amended to

avoid this interpretation.

RECOMMENDATION 10: That the Committee amend Principle 1 to read: “A digital

communication should not disclose sensitive personal facts about another individual

without that individual’s express or implied consent.”

62. Principle 6 as drafted risks catching a broad swath of Internet behaviour that is

not worth the time and resources of the Approved Agency or the District court.

In the latter case, we feel this is so even with the court’s requirement of a

threshold of significant harm. We therefore suggest the principle be amended.

RECOMMENDATION 11: That the Committee amend Principle 6 to read: “A digital

communication should not knowingly or deliberately make a false allegation.”

Conclusion 63. We thank you for the opportunity to make this submission, and we look forward

to presenting further material during the Select Committee hearings on the

Harmful Digital Communications Bill. Please do not hesitate to contact us to

discuss any of the above.

Jordan Carter

Chief Executive

jordan@internetnz.net.nz | +64-‐4-‐495-‐2118

InternetNZ: Submission on the Harmful Digital Communications Bill 2013 Appendix A: 21 February 2014

APPENDIX A Summary of Recommendations

RECOMMENDATION 1: To clarify cl 17 to give better effect to this intent.

RECOMMENDATION 2: To clarify whether IPAPs are intended to be treated as OCHs, particularly given that the only type of order that could workably be made against an IPAP would be an order to disclose identifying information under cl 17(2)(b).

RECOMMENDATION 3: To exclude cached data from any orders able to be made under cl 17(2)(a), adopting the definition of “cache” from s 92E(4) of the Copyright Act 1994.

RECOMMENDATION 4.1: To omit cl 17(2)(d) and amend cl 17(2)(c) along the lines of: “an order that a notice be published indicating that the material is removed pursuant to the Harmful Digital Communications Act.”

Or in the alternative,

RECOMMENDATION 4.2: Provide that the language of the correction and/or reply be determined as part of the court proceedings, and then provided to the intermediary for publication.

RECOMMENDATION 5: That the intermediary receives prior notice from the court that an order will be made, and an opportunity to comment on the practicalities of implementing the correction or right of reply. RECOMMENDATION 6: That the Committee adopt the proposal jointly put forth by TradeMe, InternetNZ, Consumer and others, regarding the safe harbour and amend the Bill accordingly.

RECOMMENDATION 7: That technical advice be published, and that an annual report of the number of cl 17(2) orders issued per year also be made publicly available in the interest of transparency.

RECOMMENDATION 8: That a clause be inserted requiring review of the Harmful Digital Communications Bill, and the effectiveness of the regime in general, after a number of years.

RECOMMENDATION 9: That all definitions be included within the interpretation section, for the purposes of clarity.

InternetNZ: Submission on the Harmful Digital Communications Bill 2013 Appendix A: 21 February 2014

RECOMMENDATION 10: That Principle 1 be amended to read: “A digital communication should not disclose sensitive personal facts about another individual without that individual’s express or implied consent.”

RECOMMENDATION 11: That Principle 6 be amended to read: “A digital communication should not knowingly or deliberately make a false allegation.”

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