Law and technology

The Department of Internal Affairs’ (DIA) internet filter has gone live. The system is aimed at blocking illegal images of children. While this is a voluntary scheme (unlike Australia’s scheme), the experience in the UK has been that there will be pressure on ISP’s (including direct Ministerial threats) to join the “voluntary” scheme, lest they become a known haven for those seeking illegal content. Now, all UK ISP’s subscribe to the Cleanfeed filter.

In New Zealand, any move to make the filter mandatory would require legislation. While many opponents of the filter would likely oppose legislation, it would at least have the effect of defining the parameters of the filter and its regulation. The legislation would need to comply with the Bill of Rights Act (unsatisfactory though that law may be), or be passed with a statement expressly acknowledging where it breaches that Act. This would clear up concerns (or at least bring them into the open) that the filter may one day start to gradually be used for other purposes, such as blocking breaches of name suppression. It would make the filtering accountable to Parliament and the Courts. Also, the enabling legislation does not need to create make filtering mandatory – it could ensure that ISP’s remain free to choose whether or not to sign-up.

As long as the scheme remains voluntary and unregulated, though, no legislation is needed. While the objective is admirable (putting aside major questions over effectiveness), concerns include:

• What information is being stored in the system, who has access to that information, and is it in compliance with the Privacy Act 1993?
• What oversight is there on the content being filtered?
• Is there a risk that the system could be extended to include material covered by name suppression orders?
• Is pressure being brought to bear on ISPs to join the system?

For now, some ISP’s have expressed strong concerns about the filter which, as long as it remains voluntary, makes it unlikely that full sign-up will be achieved in the short term.

The Law Commission has published its report on name suppression. On the issue of name suppression on the internet it makes one recommendation:

Where an Internet service provider or content host becomes aware that they are carrying or hosting information that they know is in breach of a suppression order, it should be an offence for them to fail to remove the information or to fail to block access to it as soon as reasonably practicable. [7.16]

With regards to hosts, this is largely the status quo. It is less clear what an ISP that is “carrying” suppressed information is supposed to do. It would be impractical and ineffective, for example, to require ISPs to block access to sites it didn’t host. Of course, once a suppressed name has been communicated beyond our shores, any restrictions imposed by New Zealand law ceases to have any effect. If a major sports star had name suppression in New Zealand, and it was reported by Australian newspapers, would every ISP in New Zealand be expected to block access to those Australian websites?

The report’s findings on internet issues are brief, and don’t quite grasp the essential difficulties that the internet presents to the name suppression regime.  It states:

Where information as to the identity of someone appearing before a court is already in the public domain, it will not generally be appropriate to grant name suppression. The law will not undertake an exercise in futility, which would bring its own authority and processes into disrepute. [3.65]

Yet in many recent cases involving name suppression, that is precisely what has occurred. Twitter, Facebook and other local and international web sites are routinely used to blithely report (or more often, speculate on) the identity of the individual. An invariable side effect is the gross defamation of innocent persons unlucky enough to fit some “non-identifying” criteria not covered by the suppression order. There is every reason to think this phenomenon will become more and more common. In fact, the application of a suppression order, in many cases, simply has the effect of causing more speculation and breaches of the order – a manifestation of the Streisand effect.

The report noted that name suppression is generally more readily available in New Zealand than in Australia or the United Kingdom. One interesting statistic which the report did not appear to have considered, however, is how effective name suppression orders (in high profile cases) have been. Anecdotal evidence as well as personal experience suggests they are increasingly ineffective.

If the law is not to permit exercises in futility, this issue may need to be revisited again before long.