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Wednesday, 18 February 2009

Internet Blackout

Over recent years [read: under the previous Labour government] we have been increasingly concerned at ill thought out, badly drafted legislation that removes power from the judiciary and confers it on other bodies within society that are not subject to the rules of evidence and due process.

The anti-smacking bill is an obvious example. The bill removed the defence of reasonable force for assault from the Crimes Act and instead placed discretion as to what is reasonable in the hands of the police as opposed to the court.

The Seabed and Foreshore Act prevented private citizens from taking a property dispute with the Crown to court and instead the legislature, in a massive conflict of interest, simply declared that the property belonged to them.

The weakening of due process is further evidenced by the abolition of an independent appeals court (The Privy Council) and the changes to double jeopardy and the requirement for jury unanimity.

The Copyright Amendment Act, due to come into force on 28 February 2009, is another example. The Labour government wanted to tighten up copyright law, particularly around internet copyright violations so far so good. Except that bits of it were not drafted so well and despite the Select Committee deciding, unanimously, to delete the questionable section from the proposed law the Labour government decided to keep it in.

The sections at the heart of the controversy are:

92A Internet service provider must have policy for terminating accounts of repeat infringers

(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.

(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

At first glance this might seem a bit innocuous. However, as David Farrar points out:
The bill did not define “reasonably implement”, “appropriate circumstances” or who decides if someone “repeatedly infringes”. It also turned ISPs into an unpaid enforcement arm for copyright holders.
Farrar’s article explains the issue well citing intellectual property experts and is worth a read. Essentially, ISP’s will be subject to the threat of legal action if they allow a person who repeatedly offends to use their internet services. The problem is that without these terms being defined they simply will not know whether acting on or failing to act on a complaint subject them to legal action. Being on the wrong side of the law is costly so these providers will have to set in place fairly draconian policies to ensure they are indemnified. As the NZ Computer Society states, quoted by David Farrar, The law essentially places “ISPs in the position of potentially having to be the policeman, judge, jury and executioner in what are often vague and unclear situations”

For some people a website is a bit of fun, a creative outlet, for others it is their business, their livelihood; for all, regardless of whether it is a source of income or not, a website and its contents is the private property of its owner. When a law is passed that allows a single citizen the power to lawfully deprive or interfere with another citizen’s property on the basis of a single accusation, with no requirement for evidence and no opportunity for a hearing, a first year law student should be able to tell you there is something wrong with the law.

The National government needs to repeal this section. Like all governments they are more likely to do this if they feel there is wide spread community support (as lousy a reality as that is) so the internet community is banding together with an Internet Blackout from February 16-23 that calls the government to fix this legislation.


  1. The question must also be asked concerning the role of governments: What is the role of governments in regards to the economic claims and contentions by these parties in a democracy committed to the rule of the many? Surely it is not the role of a democratic government to side with a handful of individual commercial actors against the multitude of everyday produsers/prosumers? Furthermore, haven't these governments already ratified the UDHR and thus committed themselves to the protection of private and public spaces as specified therewith?

  2. The people who commit copyright infringements should be the ones threatened with prosecution, not the third parties who allow those people access to the internet or hosting of their sites.

    It is just not reasonable to expect an ISP to be familiar with the content of every site they host and stay up with new additions. That is the level of expectation this law puts on ISPs. Another reason why it needs to be modified or scrapped.


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