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Officials drop the BORA on 92A
By Steven | February 23, 2009
Our Bill of Rights vetting process has failed miserably again.
This is the system that’s supposed to pick up rights issues when a Bill is introduced to Parliament and consider whether the proposals are demonstrably justified. When a Bill affects free speech, officials are supposed to highlight the problem and ask questions like: “What’s the evidence that there’s a problem here? What’s the evidence that this solution will fix it? Are there any other ways of tackling the problem that might tread less harshly on free speech?”
The new copyright amendments certainly raise free speech concerns. What did the officials giving the BORA advice have to say about whether the “termination of repeat offenders” provision is demonstrably justified?
Look at the legal advice they gave. It’s six paragraphs long. It didn’t even pick up the section 92A problem (or this one). It just rubber stamps the Bill saying that, of course copyright restricts free speech, but hey, we think the restrictions it contains are reasonable. (To be fair, section 92A was in slightly different form when this Bill was introduced. The “repeat infringers” policy wasn’t actually mandatory, as it is in the final version: it was merely a condition that ISPs had to meet if they wanted a degree of legal protection from being held liable for copyright infringements by users. Still, it really was effectively mandatory for ISPs, since the protections being granted were so important, so I think the issues should still have been addressed).
The vetting process is supposed to act as a warning system to Parliament, and to feed into the debate about the Bill. I’ve been watching freedom of expression vets for a long time now, and they almost invariably just give the Bill a green light with no real attempt to test the restrictions for their justifiability. We really should be doing better.
Topics: Copyright, Internet issues, NZ Bill of Rights Act | Comments Off on Officials drop the BORA on 92A