SUBMISSION OF DAVID FARRAR TO THE JUSTICE & ELECTORAL SELECT COMMITTEE ON THE CRIMINAL PROCEDURE (REFORM AND MODERNISATION) BILL
About the Submitter
- This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.
- I am the owner and editor of kiwiblog.co.nz, a blog which attracts hundreds of comments every day from close to 7,000 commenters. Some commenters have broken name suppression orders on my site, and a considerable amount of time is spent on detecting and deleting any breaches.
- This submission is focused on the provisions around name suppression and the Internet.
- I believe name suppression orders have been too easy to obtain, and support the provisions of the bill which make it harder for name suppression to be obtained.
- In the Internet age, it is very difficult to keep things secret, if there is a public interest in them. Wikileaks is a classic example of this – the US Government couldn’t stop publication of some of its most classified secrets. So the NZ Government will not be any more successful in stopping publication of defendants details if someone strongly enough wants to publish them.
- Websites with no NZ connection (ie not hosted in NZ, and no known author/owner in NZ) can public suppressed details with no comeback under NZ law.
- The bill proposes an offence for ISPs (which are defined as including bloggers) who do not delete any content which breaches a name suppression order. I am unsure as to the need for this, as I believe a failure to delete any content (once notified of it) is already an offence. This is why I have deleted comments which do breach suppression orders.
- If there is to be a specific offence for ISPs, then significant changes need to be made to it to protect content hosts from being jailed for material they were unaware of. I detail these later on
- I support the creation of a register of suppression orders for two reasons. The first is it would help media ascertain what is suppressed – something which can be challenging currently. Secondly it would allow publishers to verify if material on their site is in breach of an order, so it can be taken down.
Clause 214 – Standing of members of media
- Clause 214 restricts standing on a name suppression application to media who are subject to the BSA or Press Council. Unlike c202(2)(b) which caters for other persons reporting on court proceedings, c214 has no exceptions.
- I do not believe it is necessary to have any restriction on whom may be heard in relation to a name suppression application. It is highly unlikely anyone would seek to be heard whom doesn’t have a legitimate interest in the issue. They might be an online publisher like Scoop, a student newspaper such as Salient, or even a transparency in government foundation.
- If standing is to be restricted to “media”, then it would be desirable for the courts to have the flexibility (as in 202(2)(b)) to recognize a wider range of media
Clause 215 – Offences and penalty
- The maximum term of imprisonment of six months is excessive, especially as it may apply to publishers who do not knowingly break a suppression order but merely are found not to have detected and deleted a breach. A possible penalty of jail is excessive – even though this applies only to breaches of victims identities.
Clause 216 – Liability of ISPs
- Clause 216(2)(a)(i) states an ISP is liable for any breaches done by their users if they “knows or had reason to believe” the material is breaching a suppression order. This is far too uncertain a test for an issue of criminal liability. The test should be as per the Law Commission recommendation “that they know”.
- Clause 216(2)(a)(ii) also removes liability protection if an ISP “does not, as soon as possible after becoming aware of the infringing material, delete the material”. It is important to define what constitutes awareness of the infringing material. Having someone merely tell you that there is infringing material somewhere on your site should not be sufficient to remove liability. You need to be aware of the specific page or URL it is on.
- Clause 216(3) says the a court in determining liability must “take account of all relevant matters, including whether the Internet service provider has been notified of the alleged breach”. It does not define whom can do the notification. Ideally notification would be by way of a notice and takedown regime as proposed by the Telecommunications Carriers Forum. Before an ISP removes material, they need to have the assurance that it is someone in authority asking them to remove the material. Either Crown Law, the Ministry of Justice, the Police or even Judge’s Registrars could be deemed the appropriate authority to issue such takedown notices.
- Clause 216(4) requires an ISP to notify a user if it has deleted material which is suppressed. This is not practical for bloggers (who are defined as ISPs under this bill) as many of the commenters are anonymous. It is desirable to say that notification should happen, only if practical.
- It would be useful to use an alternate term such as a “content host” rather than ISP for the purposes of this section. Defining persons who host material on websites as an ISP will just lead to confusion between different Acts.
If significant changes are not made to these provisions, ISPs and Internet publishers (such as myself) could face criminal liability despite our best efforts to obey the law. The Government needs to make it was easy and clear as possible for Internet publishers to know if material on their site infringes, to locate that material and to remove it secure in the knowledge that the request to do so has come from an authorized agency
David FarrarTags: name suppression, submissions