A post on 92A that David Farrar probably won’t link to
February 24, 2009
You may have noticed that I didn’t join the blackout in protest against section 92A.
It’s not that I don’t have concerns about the law. As you can see from the post below, it doesn’t seem to me that it’s been well thought through. I’m open to the idea that it goes too far.
But “guilt by accusation”? There’s nothing in the law that requires that. Here’s section 92A:
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.
An ISP that simply terminated on the basis of two or three allegations would surely not be implementing its policy reasonably, and termination would be inappropriate. True, this provision is awfully vague (which may also raise Bill of Rights issues, actually). Yes, it gives quite a lot of wiggle room to ISPs (though they are not likely to try to implement it against their clients’ interests). But it does not require – or even permit – guilt by mere accusation. [Dean Knight has made the same point].
Some people are getting het up about the fact that an account may be terminated without the protections (and standards of evidence) available in a court. But is that so odd? Your phone company can cut you off for breaching its policies. Your employer can fire you for breaching policies. Your ISP probably has other policies reflected in its contract with you allowing it to terminate your account if you peddle kiddie porn, for example. If push comes to shove, you can take the issue to court. As you can do under section 92A. But the development of policies (even mandatory ones) that have real consequences for breach without any necessary court involvement is nothing new.
Throw in the new Telecommunication Carriers’ Forum draft on how this law is likely to work in practice and we move even further away from guilt by accusation. What this draft gives us is “innocence by denial”. Under this plan, a copyright holder who asserts breach triggers an “education notice” to the user, who can simply deny the breach by issuing a counter-notice and no further action needs to be taken by the ISP. Really. There is a provision in there saying that ISPs can, in their discretion, decide to take action if they think the denial process is being abused. But how many ISPs are going to do that?
The draft is worse than that, from the copyright holders’ point of view. A copyright holder has to pay a fee before the ISP even has to look into the allegation. So if a copyright holder can provide crystal clear evidence that a user is downloading files illegally, the ISP won’t even glance at it unless the holder can stump up with some dosh. I have some sympathy with the ISPs’ desire for cost recovery, but I’m not sure that any policy that allowed an ISP to overlook incontrovertible proof just because someone hasn’t paid it some money could be regarded as reasonable. (I’m not saying proof will always be incontravertible, I’m just mentioning the easy case for the purposes of argument).
Actually, that raises another question: where the hell do the copyright holders get their evidence that some particular person is infringing? Beats me. But I do note that the draft puts that evidential threshold pretty high.
Does this draft really comply with section 92A?
The copyright holders are proposing a slightly amended system – in which they get to look at the users’ reasons for denying infringement via their own resolution process, and if they end up still thinking there’s been a breach, the ISP has to accept that. But that doesn’t seem fair either [and, as someone has pointed out in the comments section, that comes closer to guilt by accusation].
I think any fair and reasonable system must involve a quick and fairly cheap disputes resolution body. And I note that we already have a Copyright Tribunal set up and functioning, though for some bizarre reason, all it does is rule on issues concerning licensing systems. I can’t help thinking that it would be a good idea to broaden its jurisdiction to include ISP copyright issues, set up a lower-tier fast-track mechanism for resolving the 98% of infringement claims that are slam dunks, and refer the tougher ones (eg where there’s a fair dealing issue) to the Copyright Tribunal.
[Update: credit to DPF, he did link to this post. He says he disagrees that section 92A isn’t guilt by association, but doesn’t explain why. On the other hand, he has written a lot on this issue, and you can see his thinking there.]
Topics: Copyright, Internet issues, NZ Bill of Rights Act | Comments Off on A post on 92A that David Farrar probably won’t link to
Officials drop the BORA on 92A
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
Law Commission looks at suppression laws
February 19, 2009
The Law Commmission has put out an issues paper on suppressing names and evidence. They’re seeking input, but you’d better be quick.
The paper sets out the various ways names and evidence can be suppressed, and asks whether reform is needed.
In general, they’re looking at recommending that the grounds on which suppression can be granted should be specified more closely, which has to be applauded. It’s currently very open-ended. Even on the Commission’s proposals, there will be nebulous “interests of justice” catch-all grounds, but any movement toward more specificity is to be welcomed.
Interestingly, the Commission takes on Justice Baragwanath (and the Commission’s own earlier opinion) in concluding that the presumption of innocence shouldn’t be a factor in name suppression. Naming a defendant doesn’t suggest that she’s guilty. The Commission could have added that even Justice Fogarty in R v Sila didn’t think that merely naming defendants (as opposed to filming them in court) amounts to a punishment akin to pillory. The Commission says, rightly I think, that the real question is whether the risk of harm by publicity to the defendant’s reputation or dignity outweighs the interests of open justice in any particular case.
Disappointingly, the paper doesn’t much go into the evidence about how suppression orders are currently being used (or misused). How many suppression orders are made in civil and criminal proceedings, for example? What sorts of evidence is usually suppressed? What for? How many suppression orders are interim ones? Some sense of the proportions of suppression orders based on particular reasons would also be helpful. (For example, I don’t think name suppressions are often made for fair trial reasons – if they are, I’d be concerned about that. If they’re not, fair trial ought not to dominate our consideration of appropriate reform).
Nor is there very much on the experience in other countries.
There’s an enigma that mostly goes unaddressed in the Commission’s paper: most of the factors that the courts are supposed to take into account for name suppression (and those that the Commission thinks should be taken into account) tell against suppression. But in reality, name suppression is very often granted. What’s going on?
There is some discussion of current practice. It rather confirms my impression that name suppression in particular is something of a mess. For example, the paper says:
In our research, we heard of cases in which journalists had great difficulty in ascertaining whether there was an order in place in a particular case, and what its terms and duration were. We came across decisions in which the endorsements describing the suppression order at the top of the judgment, which are not always drafted by the judges themselves, were at odds with the content of the orders set out in the body of the judgment. In extreme situations, problems of this nature risk bringing the law itself into disrepute.
Damned straight.
Unfortunately, the Bill of Rights doesn’t get much mention either. The Commission accepts that suppression raises freedom of expression issues. (I’m not so sure it is clear. In the first instance, it’s about access to information, which I’m not sure is encompassed in the freedom of expression right. If someone gets hold of a suppressed name or piece of evidence, then how they are allowed to use it becomes a freedom of expression issue, but only then, I would have thought.) But accepting that there’s a free speech issue, and accepting (as the Commission does) that this means restrictions must be reasonable and demonstrably justified in a free and democratic society under section 5… where’s the discussion about the whether name suppression meets the usual tests for demonstable justification?
But I’m being too harsh. The paper contains a very useful overview of the laws and the principles at stake, and generally asks the right questions about what we should be doing. It also makes some very sensible suggestions. For instance, there’s a gap that means the media can’t challenge a High Court decision on appeal to impose name suppression when it was originally refused in the District Court. That needs to be plugged. Child witnesses should be able to apply to have their automatic name suppression lifted when they turn 17. Public morality needs to be dumped as a reason for suppressing evidence.
Some of the questions are harder calls:
- should it be easier to get name suppression at earlier stages in proceedings?
- how does privacy play into suppression issues?
- should the fact that defendants who are well known are much more likely to suffer adverse publicity be factored in?
- should journalists be allowed to stay when a hearing is closed? How do you define a “journalist” for this purpose?
- should there be a rule that names may not be published before an arrested person has a chance to apply for name suppression?
- should there be a register of suppression orders? Who should be able to access it?
- should the court be able to make suppression orders applying just to the internet (since information published there is so much more easily accessible that it might create risks to later trials that traditional media wouldn’t)?
- should knowledge or recklessness need to be proved before finding someone guilty of breaches of suppression orders? Should the penalties be hiked?
- should people on diversion automatically get name suppression?
There’s still time to have your say on these issues, if you hurry.
Topics: Name suppression, NZ Bill of Rights Act, Suppression orders | Comments Off on Law Commission looks at suppression laws
Chris not Christians
February 19, 2009
I’m not a Christian. I think the Biblical creation story is daft. I don’t think it should be taught in schools. But I do think that when a serious radio programme debates the issue “Should creation be taught in schools?” the station should at least find someone who thinks it should to include in the discussion.
Chris Laidlaw’s “Sunday Group” slot last weekend took up this question. Chris posed the issue as:
should creation stories be taught as part of the science curriculum or any other part of the curriculum in New Zealand schools?
Laidlaw described creationists as “those who believe in a literal six-day creation of the earth, as described in Genesis”. Nope. The essence of creationists is that they think God created the earth. Some allow a bit of literary wiggle room with the 6-day thing. But heck, let’s lump them all in the extreme basket.
Laidlaw then said creationists were “battling to have evolution removed from the curriculum and to have the creation story taught in schools”. Not so much. The more sensible ones are simply arguing that creation should be taught as a theory alongside evolution. That almost starts to sound reasonable, so we’d better not mention that.
So, how many of Laidlaw’s three guests argued for creationism to be taught in schools? Not one. All of them, it seems, agreed with Chris’s position. (At one point he asks: “Why is it so hard to persuade so many people that evolution is utterly logical?”)
He’d got guests, it seems, from a recent conference in Christchurch on biological education celebrating Charles Darwin. They were certainly qualified to talk about the issue, and said some interesting things. But it was no real debate about the issue. As I understand it, creationists have some good points about holes in the theory of evolution. We didn’t hear about that. They have some arguments to support their concept of intelligent design. We didn’t hear any sympathetic treatment about that either. They presumably have a view that what they argue is sensible and well-motivated. Laidlaw was reduced to asking his guests about the motivations of the creationists. The guests were polite, but not surprisingly thought the creationists were confused and misguided. Those guests’ views would have been much more interesting and vigorous had they been contrasted with someone speaking thoughtfully for the creationists.
Oh, and having a creationist in the discussion would also have complied with the balance standard in the broadcasting code of practice. I think this programme was in breach. No matter how the BSA twists things to avoid balance in talkback, it seems hard to escape the conclusion that the Sunday Group was a discussion of a “controversial issue of public importance”, and an obvious “significant view” was lacking. Listeners surely did think they were going to get a discussion not a venting of one-sided opinion.
The broadcaster might argue that it was merely supplying “background information” that casts light on the issue, as in this case, which involved a RNZ programme called “Outspoken” about the foreshore and seabed issue that lined up speakers from one side only. I think that case was wrongly decided – another part of the BSA’s trend toward whittling away the balance standard. But even if you think they got it right there, it’s hard to conclude that Laidlaw’s show was merely providing factual background, or historical, legal and factual context.
Topics: Broadcasting Standards Authority, Media ethics | Comments Off on Chris not Christians
Ethics inquiry into 13-year-old dad story
February 19, 2009
The UK’s Press Complaints Commission is looking into the ethics of The Sun’s story about a 13-year-old fathering a child. On what grounds, you ask? In NZ, the issue might be the child’s privacy (can a boy really consent to a story like that?) or whether the paper had “particular care and consideration for reporting on and about children and young people”. Not there. It’s whether he or his parents should have been paid for the story… that’s not allowed if the children’s welfare is involved (as it surely is here) unless publication is in the child’s interests. Interestingly, the story I’ve linked to seems to conflate the interests of the child with the public interest. Don’t know what’s going on there.
Topics: Media ethics, Press Council | Comments Off on Ethics inquiry into 13-year-old dad story
Boscawen appeal fails
February 17, 2009
The Court of Appeal has thrown out the Bill of Rights challenge to the Electoral Finance Act. That’s not to say that they thought the EFA was consistent with the BORA. Just that they wouldn’t consider the issue.
I’m not too surprised that they threw out the challenge to the Attorney-General’s decision not to report to Parliament that the bill appeared to be inconsistent with the BORA. I didn’t think that the courts would want to wade into something so closely associated with the proceedings of Parliament.
But the Court of Appeal also whiffed on the second, more interesting and important point: do the courts have power to issue declarations of inconsistency with the legislation itself? The Court of Appeal leaves the question open (but suggests the answer will be no). Why didn’t it even address the question? Because:
Our earlier conclusions make it unnecessary to deal with the issues relating to declarations of inconsistency…. because of our views on the non-justiciability of the s. 7 obligation, there is no need to make a decision on this aspect of the case…
I don’t understand this. The earlier conclusions were about the Attorney-General’s report to Parliament. They were mostly about the reasons the courts shouldn’t mess with that process. But once the Bill is law, the ballgame is different. The question of declarations of inconsistency is a separate question, and it’s not self-evident that the answer to one determines the answer to the other.
Anyway, the flavour of the judgment is that the courts will be reluctant to address “abstract” issues (ie BORA questions that don’t arise in the course of a separate dispute). They even leave to another day whether a declaration will be available as a remedy in separate-dispute cases. I’m inclined to think this is a shame.
Topics: Electoral speech, General, NZ Bill of Rights Act | Comments Off on Boscawen appeal fails
Children’s privacy marches on in ECHR
February 17, 2009
The European Court of Human Rights has gone much further than NZ’s Hosking case in protecting children’s privacy. Parents of a newborn baby snapped by a private clinic in its sterile unit successfully argued that the taking (and keeping) of the photos (even without publication) without parental consent breached the child’s right to private life. This effectively grants an image right, at least in those circumstances.
Remember that the legal framework is different in Europe, though. Their fundamental human rights document protects privacy and free speech equally. Our Bill of Rights Act doesn’t explicity mention privacy. Still, the legal trend is clearly toward greater protection, particularly for children.
Topics: NZ Bill of Rights Act, Privacy tort | Comments Off on Children’s privacy marches on in ECHR
Lundy 2
February 12, 2009
Here’s one thing the prosecutors could have said to White about the Lundy case: Lundy filled his gas tank in Wellington. The fuel warning was flashing when he got back to Palmerston North. How did Lundy manage to empty the tank in one normal-speed trip back to Palmerston North plus a bit of driving in Wellington? Wasn’t Lundy’s initial explanation that some of it might have been siphoned off a bit implausible? He didn’t pursue that theory at trial, and has never been able to explain where that petrol went.
White’s article does note that the Crown also faced a petrol problem. How does Lundy hoon up to Palmerston North and back to Wellington, then back to Palmy again the next morning on one tank? Speeding burns more fuel.
Of course, if Lundy wasn’t hooning back and forth, then three trips between PN and Wellington, plus a bit of driving in Wellington, would almost exactly empty his tank. But that would mean that he couldn’t have committed the murders around 7pm, making that miraculous return trip. He would have had to do it, say, in the middle of the night, when he could drive sensibly and no-one would notice him. And he would have arrived after the neighbour saw the light and after the computer had been switched off, so he wouldn’t have needed Joe-90-like expertise to jiggle the timing mechanism…
This was not the case presented by the Crown. But it does potentially explain away almost all the problems raised in White’s article… except the problems White identifies with the fraction of brain matter from Amber on Lundy’s clothes. Its presence there doesn’t make much sense. It seems extremely improbable that it was preserved the way it was. It seems highly unlikely that it would have got there in the first place. It doesn’t seem clear that it was necessarily brain DNA.
I admit, I haven’t seen all the evidence in the case either. I’m not sure how far some DNA on a speck of dubious provinance, some missing petrol, and some odd behaviour by Lundy get you toward “beyond reasonable doubt”. But this scenario now strikes me as more plausible than the one presented by the Crown.
Topics: General | Comments Off on Lundy 2
Lundy case is falling down?
February 11, 2009
I commend to your attention Mike White’s terrific article questioning the conviction of Mark Lundy in North & South magazine.
It seems Lundy is to be added to New Zealand’s increasingly large stack of questionable convictions.
When serious questions like this arise, I don’t think it’s enough for police and prosecutors to respond, as they often do, by saying “the jury saw all the evidence, and they were satisfied beyond reasonable doubt”. If some of that evidence is open to serious challenge, the prosecutors should be answering those questions. If prosecutorial misconduct is alleged, such as a failure to turn over relevant evidence to the defence, prosecutors should be addressing that too. If a journalist uncovers compelling reasons to doubt some of the evidence that it seems the jury relied on, prosecutors should at the very least be prepared to point to other compelling evidence that indicates guilt.
To be fair to prosecutors, it’s sometimes hard to respond to criticisms of a lengthy and complicated trial process, to journalists who weren’t there for it all, don’t understand the law’s procedures and content, may well misunderstand or misquote explanations, are looking for an exciting angle, and may be little more than pawns of a lobby group.
But when a reporter does what seems to be an in-depth, balanced, careful feature, I think it’s incumbent on the authorities to explain the other side, and to front-foot any shortcomings. The public’s confidence in the justice system is rocked far more by an article like this than by almost anything else I can think of.
I’m not holding my breath. But this may give some impetus to the case (made by Justice Thorp and others) for a Criminal Appeals Review Office, as exists in Canada and the UK.
Topics: General | Comments Off on Lundy case is falling down?
Books are doomed
February 10, 2009
Yeah, I don’t much like e-books either. But here’s the thing: that doesn’t matter. Old paper-and-binding books are doomed anyway. Don’t believe me? Read this. The logic is unassailable, I think.
Topics: General | Comments Off on Books are doomed
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