An online harassment case victory

June 17th, 2013 at 1:00 pm by David Farrar

Rob Kidd at Stuff reports:

A lawyer has won a harassment case against a blogger who launched an online campaign to ruin her reputation, setting a major precedent extending the scope of anti-stalking laws.

Judge David Harvey issued blogger Jacqueline Sperling with an indefinite restraining order to protect lawyer Madeleine Flannagan, a rare case in which the Harassment Act has been used to cover blogging. The decision now opens the door to victims of harassment on other online sites such as Facebook and Twitter.

Sperling – who created colourful headlines when she outed herself as an ex-methamphetamine addict, ex-prostitute and ex-girlfriend of Michael Laws – was ordered to take down nearly 100 posts and comments from her blog which made derogatory references to Flannagan. …

A year ago, Flannagan and Brown unsuccessfully applied for a restraining order against Sperling, saying she had made numerous hurtful and distressing internet posts about them.

Judge Harvey ordered some posts be taken offline but ruled a restraining order was not required.

Flannagan took legal action a second time after Sperling renewed her online attacks. This time the lawyer won the indefinite restraining order.

Flannagan hailed her win this month as a “precedent-setting case”.

She said it was not the first cyber-bullying case tested by the Harassment Act but it was the first with a detailed judgment.

I’ve got a copy of the judgment, which is here – Flannagan Madeleine v Sperling Jacqueline jud 13052013. It’s an interesting case, as arguably action could have been taken for either defamation or harassment. The problem with defamation proceedings is they take a long time and can turn very expensive. In this case, Madeleine has achieved what she wants – which is (hopefully) and end to the harassment.

It’s good to see that the current law can be used effectively in online cases.

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The Dotcom case

July 19th, 2012 at 4:30 pm by David Farrar

I was going to do a lengthy blog explaining the context of the comments by Judge Harvey which led to him recusing himself from the Dotcom extradition hearing – but Russell Brown has done it for me. The key part:

Tweeting the proceedings is actively encouraged at NetHui, and I relayed Judge Harvey’s lucid observation that:

The problem is not technology, the problem is behaviour. We have met the enemy and he is us. #nethui

At least twice, Judge Harvey smiled and firmly declined to comment when Kim Dotcom’s extradition case, which he was hearing, came up. I complimented him afterwards on the job he’d done. …

It wasn’t quite the end of the day for me. I’d agreed to stand in for Nat Torkington chairing a 6.30pm session announcing the launch of Fair Deal, a public awareness campaign about the potential threat to New Zealand consumer rights posed by the Trans Pacific Partnership agreement negotiations currently being undertaken by New Zealand, the US and several other countries.

Deep unease with the US stance on intellectual property chapter of the agreement is the default view in New Zealand. It threatens to drag us back into issues such as rights to temporary copies (ie: the right to use the actual internet), which have been settled for years in our soevereign copyright law.

My panel – Internet NZ policy lead Susan Chalmers, Neil Jarvis of the Royal Foundation of the Blind, Catalyst IT director Don Christie and Trade Me operations manager Michael O’Connell – discussed their objections. Don noted that the New Zealand officials negotiating on our behalf have thus far taken a pretty solid line.

David Farrar commented from the floor on government attitudes (also fairly sound but the temptation will always be there to compromise on edge issues just to get an agreement signed). And Judge Harvey was there too. He spoke about the US position on something else that has long been settled in our law – the right to own and operate a device a region-free DVD player. I’ll assume Hamish Fletcher’s transcript in his Herald story is roughly accurate:

Under TPP and the American Digital Millennium copyright provisions you will not be able to do that, that will be prohibited… if you do you will be a criminal – that’s what will happen. Even before the 2008 amendments it wasn’t criminalised. There are all sorts of ways this whole thing is being ramped up and if I could use Russell [Brown’s] tweet from earlier on: we have met the enemy and he is [the] U.S.

Fletcher’s story didn’t appear until the following Monday, five days later, – but when it did, it appeared in the lead position on the Herald’s home page, under the headline US ‘the enemy’ says Dotcom judge.

Inevitably, the story was picked up from there by internet news services as Megaupload Judge Calls U.S. “The Enemy”. In making a play on his own words, Judge Harvey had created a perception of bias that has eventually led to him opting to stand aside from the Kim Dotcom case. He has done the right thing. But it bears reiterating that he was not discussing the Kim Dotcom case at the time.

So the comment was a play on his own quote from earlier in the day, and as Russell says was not at all discussing the Dotcom case.

I think it is a pity, for all sides, at the outcome. As Russell outlined Judge Harvey is an expert on both copyright law (he chaired the copyright tribunal) and Internet law. I’m not suggesting the outcome of the extradition hearing will be different with a different Judge, but that public acceptance of the decision would have been very high with Judge Harvey – especially if it was that the requirements for extradition had been met.

Nathan Torkington has blogged on this also, as has Chris Keall at NBR.

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Analysing Police v Slater

September 17th, 2010 at 10:00 am by David Farrar

Have now had some time to go through the 70 page decision, which I blogged previously. There’s a lot of interesting issues there – some of which may affect other bloggers – and even the media.

This case is about whether or not a person behaved in a manner that breached the law and in doing so utilised some of the communications technologies associated with the Internet. It is not a case about whether or not the law should allow nonpublication orders. That debate must take place in another forum.

Such as blogs! The furore over Garrett is another example of the fading power to keep names suppressed. It seems that just because he admitted it in Parliament, doesn’t mean one can repeat what he said with immunity. But myself, along with every media outlet in NZ, decided the risk of prosecution was nil as it was the defendant himself who revealed what he had been charged with and got name suppression for.

And even if he had not, it was inevitable it would have ended up in the public domain, We saw this also in another recent case regard issues around a failed marriage of a political figure – the media never stated who it was, but made it very clear from heir reporting.

It is also to be noted that postings on a blog may come from a number of sources and usually include the administrator or supervisor of the blog site. However most administrators or supervisors of blog sites must hold some responsibility for the comments that are posted.

This is a warning that a blog owner can be held responsible for comments made on their blog. Unlikely to be held responsible if you are unaware of them, but if a comment is pointed out to a blog owner – and you refuse to edit or delete it – then you may face some liability.

This poses some dangers to blog owners. Let us say it is announced a politician got name suppression for urinating in public. Someone in General Debate might say “I reckon that is the sort of thing Simon Bridges would do”. Now as blog owner I have no idea who the politician is. If it turns out to be Simon Bridges, then I may be liable for the comment. If Crown Law contacts me and says you should take it down as it is Simon Bridges, then I’d take it down, but readers might then take that as proof it was him. And it means Crown Law have also spread the identity of the person with name suppression.

SO there may need to be some way blog owners can check out details of suppression orders, if they are to be liable for comments made on their sites. But do you allow all 200,000 blog owners to access some register of suppression orders? That may be self-defeating!

However the “conversation” differs from that which may take place over a cup of coffee or across a dinner table. The first difference is that the material that is posted upon the blog is posted primarily in the form of text.

Thus, unlike a conversation, the blog becomes a record which is preserved and available on the blog site until such time as it is removed by the person responsible for administering it.

And presumably this applies to Twitter and Facebook also.

Even if the blog were to be accessible by means of subscription
with a login and a password it could well in my view be subject to the same constraints.

At first I thought this was over-reach, but I then compared it to the Trans-Tasman newsletter which you need a login and password to access. If they broke a name suppression order, they would certainly be deemed a publication.

The Court has jurisdiction notwithstanding the fact that the server hosting Mr. Slater’s website is located in San Antonio Texas in the United States of America. This is because publication of information takes place where the material is downloaded and comprehended.

I don’t like this interpretation, as it effectively implies that if you publish material on the Internet, you are a publisher in every country on earth. This means I may have broken the laws of dozens of countries with my blog.

I believe that it should only be deemed to be published in the country in which the person responsible resides and or where the servers used reside. Otherwise you risk an Internet which ends up governed by the most repressive country.

Of course I can avoid travelling to certain countries, but I don’t want to travel to (for example) Indonesia and find myself arrested for something I said on my blog about Islam (for example).

In addition the evidence is that Mr Slater posted material to the Whaleoil site from New Zealand thus performing an act necessary for the commission of an offence pursuant to s. 7 of the Crimes Act 1961.

Cameron did not deny he uploaded the material. If the site was registered to someone not in NZ, and the uploading was done by someone not in NZ, then there would be little the legal system could do. Lance Wiggs blogs on ths point:

What if the author of the overseas site is unknown? What if the site is hosted in multiple places around the world? What if the site that received emails and published names was Wikileaks.org? What if there was a global site called NameSuppression.org, with a nz.NameSupression.Org sub-domain? The owners could be shadowy, the location ever in doubt and the publisher untouchable.

It can’t be long before this occurs, and then what shall we do in New Zealand? Block the site as the Australians tried to do with Wikileaks? Go after anyone that links to the site?

The issue of links is also interesting. Back to that later.

Constable Traviss also gave evidence of a “posting” on Mr Slater’s blog which is known by his “nom d’internet” of Whaleoil.

Heh I think we have a new legal term!

The internet allows everyone to be a publisher.

I do wish people would capitalise Internet.

Many bloggers prefer to differentiate themselves from mainstream media and rather than post what may be described as “hard news” prefer to post comment or articles that put a “spin” upon a particular story or alternatively offer an opinion (which may be of considerable strength and sometimes of pungent articulation).

Did Judge Harvey just call bloggers hot and spicy?

One feature however that differentiates a blog from say, a newspaper, is that a blog occupies a continuum of comment where a particular posting or item may start on one day but may continue and develop over a period of time. In many respects this continuum may have an impact upon the context of the publication or posting.

This is an interesting observation, as it meshes with something I had been reflecting on. Newspapers tend to always write stories to be read “stand alone”. So they will mention background context in every story. So even after their 20th story on David Garrett, they will re-state how he is an ACT MP elected in 2008 etc.

Blogs tends to assume that readers have read what they have said previously, and/or that they follow current affairs closely enough, that they don’t bother to supply all the background detail. This may be one reason why blogs are popular – you get to the meat of the issue.

But it does mean, as Judge Harvey stated, that blogs are more a continuum of comment, and posts can’t be treated as stand alone.

That comment seems to suggest that the effectiveness of an order made pursuant to s 140 is limited to publication in New Zealand. That is perfectly correct.

To suggest that a non-publication order pursuant to s 140 would have extra territorial effect is nonsense.

Of course such orders can not have extra-territorial effect, but in terms of futility, a publication on an overseas blog (or even newspaper) is just as capable of undermining the suppression order.

In the present case the availability of the material from a server located in San Antonio, Texas in the United States has little relevance. The evidence before me is that the material was able to be read and comprehended in New Zealand (thus constituting a publication) and the material was uploaded on the Whaleoil blog by Mr Slater present in New Zealand at the time.

What would be interesting is if Slater had a co-blogger who was based overseas. Would Slater as administrator be liable for what the co-blogger writes on a server is Texas? What if the co-blogger was the domain name registrant?

Judge Harvey himself gets into this:

But what of the person (A) who makes a suppressed name available to a person (B) beyond the jurisdiction, and B posts the name on a his or her blog or website in a country other than New Zealand? Without specifically deciding the point, according to the decision of Hammond J in Re X the communication between A in New Zealand and B overseas could fall within the concept of a private conversation between individuals and may therefore would not fall within the scope of s. 140(1).

This is not a definite ruling, but an interesting indication that merely telling someone overseas details of a suppression order might not be an offence. Even if it was, it would be incredibly hard to prove of course.

The fact that the information is available on the internet and accessible to people in New Zealand who may subscribe to the blog or know of the webpage does not present any element of novelty. In 2000 the day after the non-publication order was made in the Lewis Case, Mr. Lewis’ name was published in the Australian newspaper which, a couple of days later, was available in newspaper rooms in New Zealand and probably on the Australian website of the day.

A case Judge Harvey is well acquainted with.

While not relevant to the finding of fact in a particular case, it is relevant to our law makers when reviewing the law.

Following from that is the New Zealand based blogger who may embed a link to the off-shore blogsite which contains the suppressed name. One should be cautious in such circumstances that one does not become involved in “publishing” by way of hypertext link. In the case of Universal City Studios v Reimerdes and Corley, a Court made an order that the defendant’s website was prohibited from directly providing files which contained the DeCSS code which enabled the circumvention of copy protection algorithms on DVDs. When the defendants posted links on their websites to other sites that provided DeCSS either by way of direct download via the link or by means of an extra few websites, the Court held that utilising this device was a “distinction without a difference” to offering a direct download. I have no doubt this point or something like it will fall to be decided in this country in some future case.

This is the aspect that may have implications for bloggers and media. I raised this issue last year also at the R v Internet seminar. Consider a case where say Whale Oil again breaches a suppression order, and this is reported on by media and/or other blogs. In order of decreasing risk, you have possibilities:

  1. You mention Whale has (allegedly) broken another suppression order provide a link through to the actual post which allegedly breaches a suppression order.
  2. You mention Whale has (allegedly) broken another suppression order and provide a link through his blog, but not the actual post which allegedly breaches a suppression order.
  3. You mention Whale has (allegedly) broken another suppression order and on your blogroll you have a link through to his blog.
  4. You mention Whale has (allegedly) broken another suppression order and have no links to his site anywhere at all.
  5. You mention a “notorious blogger” has (allegedly) broken another suppression order.

All of the above actions could lead to a large number of people finding out the name of a suppressed person.

(1) is something which to my mind does cross the line, and would be unwise to do. But how different is that to (2). If you provide a link to his blog, it will probably be on the front page and discoverable within seconds. So (2) may get you in trouble with the law also.

Then how about (3). The only difference between (2) and (3) is someone has to go from looking at the main body of your blog, to the sidebar with a blogroll, and click through to follow the link. (3) is not far from (2) and (2) is not far from (1).

So how about (4) and you provide no links at all, anywhere on your site. Well, 95% of people who do not know the URL of Whale Oil will go to Google, and his blog comes up first. Same thing if you search on his name only. So I am not sure (4) is very far removed from (3). This would mean that every media outlet that named Cameron or his blog, could be at some risk – especially if they have any links at all in their archives to his site.

But what if they don’t even mention his name, or his site’s name at all. Well even scenario (5) can lead to lots of people who will find out the identity of a suppressed name. You see in this example Whale Oil is so well know as the site which has breached previous orders, that there are probably 100,000+ people who upon reading in the newspaper “A controversial blogger has revealed the name of the /musician/politician/sportsman who did ….” that they will know exactly which site to go to to find out, and then of course tell all their friends.

So maybe the only way to stop it, is to have a law where it is illegal to even mentioned that a suppression order exists, let alone it has been breached. But that is draconian, and would not be accepted. So where do you draw the line?

Some of the charges have a name published under the heading “Interesting Name.” Mr Thwaite argues that this means nothing. Mr Burns responds by arguing that one must look at the context of that particular publication taking into account that further information is available on the blog site relating to the case involving the particular name which has been displayed in another place on the blog site.

Mr Burns argues that because the blog is in the nature of a continuum that it is clear to the reader that the name relates to another article on the site and it is merely a matter of marrying the two.

This brings up an interesting possibility. What if you never ever posted on the actual substantive story relating to a suppressed name, and just posted the name by itself?

Or you can find some other way to refer to the person with name suppression. The mainstream media do this quite often. In one story they report an entertainer has been granted name suppression, and in another they report that so and so has been dropped from TV. Will they get treated as a continuum  or only blogs?

Similarly with the pictogram. The information can be decoded in the same way that an aggregation of information may lead to the identification of a person by way of a process of elimination – another form of interpreting a particular code or solving a puzzle. The use of phonetically coded information (which is how the pictogram resolves the name) is not unknown to Mr. Slater. I venture to suggest that the words “Whaleoil Beef Hooked” on the “masthead” of his homepage provides an example.

Ha. I wonder how many times the Judge had to try it out loud with an Irish accent before he worked it out – it took me a few goes :-)

Mr. Slater also maintains a certain amount of control over the content that is published. He was asked “You’ll just publish it anyway?” He replied “If I agree with it. I won’t publish something I don’t agree with” – an ironic answer in light of the freedom of expression argument which his counsel has advanced.

Not really ironic in my opinion. In the comments section, Cameron does allow contrary views to be posted all the time – in fact I’ve never known him to censor a comment. His comments were, I suspect, referring to what appears on the front page or main posts of Gotcha.

The evidence is also clear from some of the posts by Mr. Slater that his campaign was going to go beyond legitimate protest and criticism and was going to enter the realm of “electronic civil disobedience” by the publication of certain names that were the subject of non-publication orders.

I quite like that term “electronic civil disobedience”!

The judgement answers a number of questions about our name suppression laws and will I imagine be cited often in the future.

It does however leave unresolved potentially larger questions for the future – such as liability for linking, and whether communicating suppressed details to an overseas blogger would be an offence. Of course that is because those questions did not have to be answered in this particular case.

I look forward to seeing what changes to name suppression laws are proposed by the Government, in response to the Law Commission’s report.

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Whale guilty on 9 out of 10 charges

September 14th, 2010 at 3:29 pm by David Farrar

Judge Harvey has found Cameron Slater guilty on nine of the ten charges relating to name supression. The judgement is here – Police v Slater. I’ll do a fuller post tonight or tomorrow analysing it n depth, and especially any implications for the wider blogosphere and media. It is pretty long for a district course case – 70 pages.

The fine is $750 per charge plus $130 costs, so total cost is $7,920.

There are some proposals from the Law Commission that are with the Government, which are worth implementing. One of them makes it harder for people to get name suppression, and the other will make it easier for media (and bloggers I hope) to access details of suppression orders so that you are less likely to accidentally breach a suppression order (as has happened to me on occassion).

I hope we do see some law changes in the near future. While I don’t endorse deliberately breaking the law, I do endorse the intent of the campaign – which is to to have a more open justice system.

UPDATE: Have also placed the pdf on Scribd, below:

Police v Slater

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Whale’s trial

August 25th, 2010 at 3:36 pm by David Farrar

Tv3 have a live blog of proceedings at Whale Oil’s trial. Well not quite live, as Judge Harvey has placed a ten minute delay on tweeting and reporting, in case evidence has to be suppressed.

Judge Harvey is probably the Judge who is the most knowledgeable on Internet issues. I’m not sure if he volunteered for the trial, or was given it as punishment :-)

Some extracts:

Judge Harvey describes Whale Oil’s blogs as like a shotgun blast, it hits the person and then other people he doesn’t want to hit.

Heh, not a bad analogy.

Mr Slater is sitting at the back of the courtroom; wearing his usual white long-sleeve shirt with dark blue sleeves. He is bearded, arms folded and watching the trial unfold with apparent nonchalance. He writes the occasional note on his hands but remains impassive.

Heh. I look forward to seeing the TV.

Ms Murray asks him about articles he posted about the Olympian. He says he wrote an article about celebrity name suppression and said he published some pictures to go with the article for ‘interests sake’. He says they were ‘interesting pictures’ and says people have had guesses at what they meant. He says ‘they could mean anything’. It was one image that contained four images. He says he doesn’t believe the Olympian should have name suppression because he is a ‘violent criminal’. He says he understood that no one was able to publish his name, age or occupation. He says he did not mention his occupation nor his age nor his name. He says he quoted from the NZ Herald and put up a random image – ‘you can take it anyway you want’.

The court judgement will be very interesting.

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Judge Harvey on online gambling advertising

July 10th, 2010 at 10:49 am by David Farrar

The Herald has an interesting story on a ruling by Judge David Harvey:

The poker news websites went wild. “New Zealand Court Backs Poker” proclaimed gamblingonlinemagazine.com. “In a groundbreaking ruling a New Zealand court has delivered a huge blow to opponents of online poker, and poker in general,” said pokernewsboy.com.

“Though they may be an ocean away, the nation of New Zealand has fired a shot which could reverberate through the poker landscape,” said flopturnriver.com.

What they were all raving about was a ruling District Court Judge David Harvey delivered on June 23 which found that advertisements for Pokerstars.net and the Asia Pacific Poker Tour run on TV3 and C4 were not promoting online gambling.

The Department of Internal Affairs, which brought the case, has said it will appeal the decision.

The details of the case are interesting. Essentially pokerstars.net is a play money gambling site (which is legal) and pokerstars.com is a proper gambling site (which can not be promoted under NZ law). DIA argued that by advertising one, they were advertising both, essentially.

A feature of the case was the difference between the “dot net” and “dot com” Pokerstars websites. The .net site is for practise poker games using “play money”. The .com site has online poker with gambling for real money. A key plank of Internal Affairs’ case was that the use of the generic word “Pokerstars” in both the.net and .com domain names were two ways of saying the same thing. “It is the prosecution case,” says the judgment, “that the advertisements were de facto advertisements for pokerstars.com, using and emphasising the brand name ‘pokerstars’.”

I’m sceptical of that argument.

Judge David Harvey is widely regarded as New Zealand’s most technologically savvy judge. Appointed to the bench in 1988 he serves in the District Court holding warrants for general, jury and Youth Court jurisdictions. A former chair of the Copyright Tribunal, he lectures part-time in law and information technology at the University of Auckland, has been involved in the introduction of information technology for the Judiciary since 1990, and is the author of internet.law.nz – Selected Issues. A former international Mastermind champion (his speciality was J R R Tolkien’s The Lord of the Rings), he writes widely on law and internet topics, is currently completing a PhD and has been active in making submissions on our laws relating to copyright and legislating against spam.

I first met Judge Harvey through the old Internet newsgroups on Usenet. He qualifies as a genuine geek :-)

This time around Judge Harvey appears to have taken an important lesson from his earlier mis-step – that judges must always make the reasons for their decisions abundantly clear. His judgment extends to 47 pages. It’s also New Zealand’s first digital judgment – a 9MB “PDF” digital document, complete with embedded video of the advertisements in question. It sits in the court file, not on paper, but on a CD.

Heh that is quite cool – an embedded video in a court judgement. A pity it does not appear to be online on the decisions of public interest site.

In response to the evidence of prosecution expert witness Professor Sarah Todd, a professor of marketing, Judge Harvey said he had concerns about the basis of her assumption – that there was a high chance those intending to go to the free pokerstars.net site, may in fact, end up on the pokerstars.com by accident. “Internet addresses are unforgiving of errors. A mistake in one letter of a domain name may produce a nil result or may direct a user to a completely different website.”

He then pointed out the sort of mistake suggested involves typing three wrong letters and seemed to overlook the fact the advertising was directed to online poker sites, anticipating an audience with some familiarity in the use of computers and the internet.

The judgment also goes through each of the advertisements – and provides the videos so that people reading the text can see for themselves what was being advertised. The web address shown in each advertisement is always pokerstars.net and often includes the words “this is not a gambling website” or “play for free”. In some of the ads, professional poker players are linked to popular sports – Noah Boeken plays soccer, Daniel Negreanu hockey and Isabelle Mercier boxes. Their commentaries include lines like, “Practise for free at the world’s largest poker site, pokerstars.net and find the pokerstar in you.”

Looks a very reasonable decision to me. Finding TV Works guilty for promoting a legal website on the basis it has a similar name to a website that can not be legally promoted, would set in my opinion an unhealthy precedent.

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TelstraClear kill off s92A Code

March 12th, 2009 at 9:53 am by David Farrar

TelstraClear have killed off the TCF Code of Practice designed to try and get workable process around the deeply flawed s92A. They have said they will veto the code at the TCF Board. TCF rules allow any board member to veto.

I was initially pissed off at TelstraClear, because all the hundreds of hours of work put into the code are now wasted. But upon reflection, I think they have have done the right thing by stepping back and saying this law is just so bad, we can;t make it workable through a code. Their submission explains:

TelstraClear considers that there is a fundamental problem with the TCF being a party to any code of this nature, which is that the code would be based on flawed legislation.

In TetstraClear’s view, any industry code would simply be an attempt to tidy up poorly drafted legislation. TelstraClear does not consider this to be the responsibility of the TCF. Indeed the best outcome would be if s92A was repealed. Failing that, it should be amended to address the above concerns:

So there will be no TCF code. The other ISPs can continue work on the code as an unofficial grouping, but it would be madness to have s92A come into force with no code in place.

The submission on the code are very interesting, and I hope MPs look at some of them. Take this submission from the leading IT jurist in NZ – Judge David Harvey. Judge Harvey is also the former Chair of the Copyright Tribunal so about as authoritiative as you can get on this area:

This section is poorly drafted and makes a number of unsupported assumptions, but in essence it suggests that an Internet service provider must develop a policy to cancel an existing contract as a result of copyright infringement.

The reality of the matter is that the cancellation or termination of the contract arises at the behest, not of the Internet service provider, but of copyright owners. Without significant justification in normal circumstances this could amount to an interference with economic relations and raises significant issues about the sanctity of contract.

Judge Harvey further concludes:

section 92A is unnecessary and gives rise to a situation where a person may be deprived of rights under a contract without proper legal process.

Does the Government really want to persist with s92A bearing in mond those comments, and that there will now be no TCF code?

If it had been Parliament’s intention to provide for a process whereby contract termination should take place, Parliament should have provided such process by legislation after proper consultation with all interested parties.

This is basically TCL’s point. You can’t ask private players to determine these rights when the law is so silent on details.

The Australian ISP Association has commented:

As mentioned above, we are aware that a concerted worldwide effort has been made by rights holders in the music and film industries over the past two years to lobby for the introduction of a ‘notice and disconnect’ scheme along the lines of that proposed in the Code. In spite of that, no ‘notice and disconnect’ scheme has been implemented anywhere in the world.

Yay, we could be first. In fact that is why the US groups are pushing so hard – they want us to be an international template.

In all jurisdictions (except France) where the introduction of ‘notice and disconnect’ schemes have been considered and consulted on by Governments, there is now a general move away from any scheme which requires ISPs to terminate internet accounts, on the basis of an allegation of infringement from rights holders.

The whole world except Judith Tizard has realised what a bad idea this is.

Auckland University says:

The main problem is in Section 92A of the Copyright Act which we believe should be removed from the Act or, if it is to remain in some form, then substantially redrafted with input from stakeholders as would have happened during a select committee process.

The Auckland District Law Society:

Section 92A represents a mechanism whereby the copyright holder, an unrelated third party, can interfere with the contractual rights between an ISP and a customer, where the customer is identified as a repeat copyright infringer. Under common law, that could, without significant justification, amount to the tort of interference with contractual relations.

This law is just as flawed as the Electoral Finance Act. When the former Chair of the Copyright Tribunal, the Auckland District Law Society and the country’s largest university says the law needs to repealed or amended, it is time to do so.

National did the right thing by delaying the introduction until a code could be completed. But we now know that unless the law is amended, a code is not going to happen, so time to introduce a bill amending or repealing the clause.

UPDATE: Also worth reading the submission from the Society of Authors. They are as pro-copyright as anyone, yet they say:

The NZ Society of Authors is concerned about the introduction of the proposed s92A of the Copyright Act 1994. Whilst we strongly support the need for measures to control repeat copyright infringement we feel that this clause is not ideal – it has been hastily written and we recommend the need for further discussion.

We feel that should Section 92A be implemented, it is imperative that the Code of Practice be effective and respectful of the rights to freedom of expression.

Radio NZ has said no disconnection should occur without a court order unless there is an independent body established by the Government to rule on any disputes.

And Internet giant Google has also made a submission:

Section 92A puts users’ procedural and fundamental rights at risk, by threatening to terminate users’ Internet access based on mere allegations and reverse the burden of proof onto a user to establish there was no infringement. …

Copyright law is often complex and context sensitive, and only a court is qualified to adjudicate allegations of copyright infringement. Indeed, in Google’s experience, there are serious issues regarding the improper use and inaccuracy of copyright notices by rights holders. In this context, the responsibility should not fall to ISPs to determine cases of infringement.

It is very relevant that Google has testified that many rightholders notices are inaccurate and indeed improper.

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Online reporting banned

August 25th, 2008 at 5:36 pm by David Farrar

I’ve just been interviewed by Radio NZ on the ruling by Judge Harvey that media are allowed to report the names of two murder accused, but that online media can not. The interview should be on Morning Report tomorrow.

Now Judge Harvey is not some fuddy duddy Judge who does not understand the Internet. He is in fact probably the most tech-savvy Judge we have, and he is the author of the main textbook on Internet law in NZ. I actually first met the Judge many years ago through Usenet, the Internet newsgroups.

Judge Harvey seems to be trying to do a middle course between total name supression and no name supression. It is an interesting concept, but one that does raise significant issues.

As far as I can tell he is not worried if potential jurors hear the name on the news tonight or in the newspaper tomorrow, but doesn’t want them to be able to Google the name (and I have just done Google searches on their names) once the trial starts. The issue of jurors doing research on defendeants on Google is a growing problem.

However by banning the names online, this may lead to overseas blogs reporting the names deliberately. In fact overseas newspapers may also do so, as this ruling may be one of the first in the world – to apply only to Internet media.

It also gives local media a challenge. It is pretty obvious the NZ Herald has to remove the name from its web version of its stories. And TVNZ and Radio NZ can not have the names in their web stories. But does TVNZ and Radio NZ etc have to remove the names from the digital version of their audio and video files? They will not be picked up in Google, but are online. Also are there issues with live streaming of their broadcasts?

Blogs may have some issues also, as commenters may have mentioned the names of accussed, but the blog owner may not be aware those names are the names that have been supressed. Oh it goes without saying I will be unimpressed if anyone mentions their names on this blog.

I hear various media are looking to appeal the decision. It is certainly going to be fascinating either way for those of us interested in technology and media law.

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