Why is National taking the heat for a problem they did not cause?

If I was a MP, I would be wondering why my Government is taking flak for a stupid law (S92A of the Act), condemned by almost every ICT group in NZ, and many business groups, when the law was passed by the former Government.

This is just stupid politics. Sure you don’t mind taking flak for your own decisions, but why would you use up very scarce goodwill on defending what Judith Tizard did?

Yes National did vote for the law at committee of the whole stage (after voting against it at select committee stage), but like Peter Dunne has done, you can say that you were misled as to what the clause would do, and now you know you no longer support it.

Some MPs may be thinking the law can safely come into force on 28 February, because the Telecommunications Carriers Forum has put together a code of practice that protects users and businesses from the worst excesses of the law.

What they may not realise is that first of all the code is still a draft and won’t be finalised by 28 February, but more importantly some of the major right holder groups (the US movie and music lobbies) have not accepted the draft code. In fact they have proposed an alternate code for a key section – one that would give them the sole power to decide if someone has infringed repeatedly and should be terminated. Their code proposes they be prosecutor, judge and jury.

Until there is final agreement on how the law should be implemented, it would be dangerous to let it come into force. You see even if the ISPs agree on a code and say this is how we interpret the law, the rights holders can disagree and sue an ISP for not terminating customers on their say so. And this is what is actually happening in Australia.

So at a minimum, S92A should be delayed until there is full agreement on how the law is interpreted between ISPs and rights holders.

Ideally it would never be implemented. Even if the TCF Code is adopted to give certainty to all parties, it is going to impose massive compliance costs on business, namely:

  • Every ISP in New Zealand (that signs the code) will have to follow a 33 page code of practice to determine how to respond to complaints re copyright.
  • Every ISP will need to change both their business practices, but also their CRM systems to cope with this law – this will cost bigger ISPs hundreds of thousands of dollars to implement.
  • Every business in NZ will be in breach of the law unless they themselves adopt a policy of how they will enforce the law with their staff and/or users.
  • The rights holders have not indicated that they will agree to pay anything to reimburse ISPs for acting as their police force. Their “detection bots”  could churn out tends of thousands of notices a month – all imposing significant variable costs on ISPs.

We’re in a recession, with a Government that says it wants to lower the regulatory burden on businesses, yet seems unbothered with this unfunded compliance cost.This is a test of walking the walk, not just talking the talk.

Cabinet can still delay S92A coming into force on the 28th, if they so resolve at Monday’s Cabinet Meeting. I hope they do so. They will have overwhelming support if they do.

I have a guest column on the issue of S92A at Muriel Newman’s Centre for Political Research, for those who want more information on this issue.

It is interesting the breadth of opposition to this law. Many ACT supporters are aghast at the cost to business, the addition of another badly defined regulation. While many Greens and Labour supporters on the left are aghast at the threat to freedom of speech, and innocence until proven guilty.

Internet users who wish to protest the Guilt upon Accusation law can join the great NZ Internet Blackout. Already thousands of people have turned their facebook photos, their blogs, their twitter accounts black as a sign of opposition to this law. The above site has instructions on how to do this easily.

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