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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
2
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
InternetNZ: Submission on the Harmful Digital Communications Bill 2013 21 February 2014
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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.
InternetNZ: Submission on the Harmful Digital Communications Bill 2013 21 February 2014
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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: [email protected] 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.
InternetNZ: Submission on the Harmful Digital Communications Bill 2013 21 February 2014
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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.
InternetNZ: Submission on the Harmful Digital Communications Bill 2013 21 February 2014
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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.
InternetNZ: Submission on the Harmful Digital Communications Bill 2013 21 February 2014
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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.
InternetNZ: Submission on the Harmful Digital Communications Bill 2013 21 February 2014
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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.
InternetNZ: Submission on the Harmful Digital Communications Bill 2013 21 February 2014
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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
InternetNZ: Submission on the Harmful Digital Communications Bill 2013 21 February 2014
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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
InternetNZ: Submission on the Harmful Digital Communications Bill 2013 21 February 2014
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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
InternetNZ: Submission on the Harmful Digital Communications Bill 2013 21 February 2014
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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].
InternetNZ: Submission on the Harmful Digital Communications Bill 2013 21 February 2014
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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.
InternetNZ: Submission on the Harmful Digital Communications Bill 2013 21 February 2014
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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.
InternetNZ: Submission on the Harmful Digital Communications Bill 2013 21 February 2014
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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
censorship purposes. As explained in a 2012 blog by Google’s senior copyright
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
InternetNZ: Submission on the Harmful Digital Communications Bill 2013 21 February 2014
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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
InternetNZ: Submission on the Harmful Digital Communications Bill 2013 21 February 2014
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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
InternetNZ: Submission on the Harmful Digital Communications Bill 2013 21 February 2014
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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.
InternetNZ: Submission on the Harmful Digital Communications Bill 2013 21 February 2014
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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.
InternetNZ: Submission on the Harmful Digital Communications Bill 2013 21 February 2014
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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
[email protected] | +64-‐4-‐495-‐2118
InternetNZ: Submission on the Harmful Digital Communications Bill 2013 Appendix A: 21 February 2014
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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
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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.”