Review of the “wild west” internet

The Minister of Justice, Simon Power, has announced a review into the “wild west” of the internet:

It’s a bit of a Wild West out there in cyberspace at the moment, because bloggers and online publishers are not subject to any form of regulation or professional or ethical standards.

The idea of some sort of a review of how our laws “intersect” with the internet has been kicking around for a while now, but the above statement by the Minister sets a rather draconian and disconcerting tone for the review. Regulation of bloggers? Bloggers and ethics?! As for the suggestion (via the term “Wild West”) that law doesn’t apply to the internet, well that is simply incorrect.

Fortunately, the Minister curbs his enthusiasm by saying that due to the “enormous scope of this whole issue”, the review will focus on:

  • How to define ‘news media’ for the purposes of the law.
  • Whether and to what extent the jurisdiction of the Broadcasting Standards Authority and/or the Press Council should be extended to cover currently unregulated news media, and if so what legislative changes would be required to achieve this.
  • Whether existing criminal and civil remedies for wrongs such as defamation, harassment, breach of confidence, and privacy are effective in the new media environment, and if not whether alternative remedies are available.

Of these, it is really only the third issue that is likely to have any substance. The first two points may address relatively small issues (such as extending BSA jurisdiction to online transmission of broadcast content). Beyond that, it will show how difficult – and, hopefully, undesirable – it is to “regulate” the internet much beyond where it is now. There is no prospect of any “regulation” of bloggers beyond existing laws, or of subjecting private comment to professional bodies such as the Press Council (which is not even a statutory organisation, and has no official powers).

The third issue will be where the most interest lies. There is no question that criminal and civil remedies do extend to the internet, as recent incidents such as the prosecution of a blogger for breaching a name suppression order demonstrate. But there is scope for further consideration of some of these issues.

Take harassment for example. I recently heard from two separate individuals who are the targets (allegedly) of vicious online smearing and bullying, mainly on Facebook. One of them told me that it was a deliberate campaign to wreck her marriage, and was causing enormous personal distress. Now what can be done about that? In many cases, the answer is very little. The review may be an opportunity to brainstorm and see if some solution or framework can be arrived at to allow genuine victims to get some assistance. Draconian regulation is not the answer, nor is possible, but there may be some sensible steps that can be taken.

Blogging and Name Suppression

Blogger Cameron Slater (a.k.a. Whale Oil) was convicted today in the District Court of breaching suppression orders on his blog. By happy coincidence (or maybe not?) the country’s most tech-savvy judge, Judge David Harvey, heard the case and his detailed and expositional judgment is available here. Judge Harvey has certainly delivered on this judgment and it’s worth a read. He makes the following key comment at the very outset:

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.

A lot of comment has been made about the Whale Oil case, and much of it centred on whether name suppression should be available. Except for those who believe in a particularly activist judiciary, such questions are not for the Court to decide. Similarly there has also been much comment on the possible futility of suppression orders in the internet era. Following the release of the Law Commission’s report on name suppression last year I said that:

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

Judge Harvey also addressed this issue, rightly saying:

Up until such time as the legislature decides to repeal or amend s 140 of the Criminal Justice Act 1985, orders made by the Court for non-publication are expected to receive compliance and the assumption is that citizens will abide by Court orders. If they do not they may expose themselves to possible prosecution or Contempt of Court proceedings.

Except possibly in extreme cases, it is not for the Court to decide that a statutory provision is no longer effective and shouldn’t be applied.

Read part 2 here.

More domain name headaches for trade mark owners?

Greg Adams comments here on the “recent .co virtual land grab”. Computerworld reports that “More than 39,000 organizations applied for .co domains during a ‘prelaunch’ phase for signing up big-name companies”. While this is great news for Columbia’s domain registry, it is just another potential headache for businesses trying to protect the identity of exising domain names and trade marks.

[ On a related issue, see my Computerworld article on AdWords and trade marks ]

A quick check on the .co whois server shows some popular .co.nz names now registered as .co’s by registrants that appear to be someone other than the New Zealand company, including nzherald.co, tvnz.co and blackcaps.co. Of course, the presence of a .co registration should not presume any illegitimacy or trade mark issue. Trade marks are territorial, and how the (global) domain name is used in a particular region (if at all) is what will be relevant.

Even more headache inducing (or wonderful, depending on ones view) is ICANN’s proposal to allow the creation of new generic top level domains (gTLDs) for “branding purposes” – i.e. vanity domains. As ICANN says:

Brand holders and organizations seeking to manage their own name as a top-level domain may have an interest in securing these rights in the early phases of the new gTLD program for future branding purposes. With the limited availability of .com domain names, some companies may opt to become early adopters of new TLDs to satisfy their marketing needs. There will also be opportunities to apply for community and geographic top-level domains, such as .blog, .brand, and .city.

For example, it is reported that IBM is likely to apply for the .IBM top-level domain. Someone could apply to register .kiwi (a popular trade mark) as a gTLD. Of course, for contested trade marks this could prove rather fraught. However, it will not be as simple as registering a normal (second/third level) domain name. To register a custom gTLD you will effectively need to become a accredited registrar and sign a contract with ICAAN.

The International Trademark Association recently expressed its concerns that the proposal could lead to cybersquatting mischief. ICANN, chaired by New Zealand barrister Peter Dengate Thrush, is expected to make a decision on its trade mark policy for the new gTLDs soon, although some remain concerned that “trademark concerns will be noted and then brushed aside”.

Is internet access a human right?

Recent IP-related debates have raised the question of whether internet access should be a legally protected human right. An Australian academic is the latest to weigh in:

Internet use has become so woven into everyday life that some technology experts say online access should be legally protected, even to the point of considering it a human right. “It’s a social inclusion question,” said Cyberspace Law and Policy Centre executive director David Vaile

Much of the debate premises that internet access is already a human right, or soon will be. That view has popular support – a recent survey showed “almost four in five people around the world believe that access to the internet is a fundamental right” (FWIW, New Zealand’s previous Culture Minister also thought so). That result should not be surprising though: the right to do non-proscribed things can usually be considered a human right in some form.

[ Update: current ICT minister Steven Joyce says “declaring that the internet is a human right is not a priority for the government”. ]

The real question is whether internet access – which in the absence of any restriction already is a right – should be elevated to a “legally protected human right”, and what would that mean in practice? Internet access is already legally enshrined in some countries. But should it be? Do we need it to be? We all happily rely on access to water, electricity, sanitation, and food without the need to see these rights written into law. So why internet access?

The fact is, New Zealand already has strong free speech and anti-discrimination laws providing a very high level of protection:

  • Under section 44 of the Human Rights Act, it is illegal for any person or company to refuse to provide service to any person on a wide range of discriminatory grounds, including sex, race, political & religious opinions, etc.
  • Freedom of expression, including the rights to “seek, receive and impart information and opinions of any kind”, is enshrined in the Bill of Rights Act 1990.

In any case, there is no shortage of ISPs happy to provide access to anyone who’s willing to pay. Why would any ISP not want to provide service to a paying customer, unless they themselves were being harmed in some way?

If the right to internet access were “enshrined”, what would the practical result be?

  • If a customer didn’t pay their bill, would the ISP be prevented from stopping their service?
  • Would ISPs be unable to enforce terms of use?
  • Would prisoners be able to surf the net all day?
  • Would parents and schools be unable to prevent children from accessing certain sites?

If the aim is to prevent Government censorship or disconnection of user accounts (such as s92A of the Copyright Act), new legislation is not needed to achieve that. Instead, the repeal of the offending legislation is the answer. New Zealand does not have a constitution capable of striking down laws, so any specific legislation expressly providing the right could be limited by another law. Similarly, all rights protected by the Bill of Rights Act are subject to “reasonable limits“. Whether this is an acceptable state of affairs is another question – especially in our unicameral MMP system with a history (in the prior government at least) of ramming through constitutional changes, without a mandate, on a simple majority.

As regards the disconnection sanction of s92A, this is not about being “banned from the internet” any more than it is about banning free speech. Free speech itself has some limitations (even in the US), and certainly consequences in many cases (e.g. defamation). Does internet access need to be elevated above free speech? Besides, internet disconnection as a preferred strategy of some rights-holder groups is not likely to last long. It is more smoke than fire, and is easily avoidable. When the internet becomes the only means of distributing music, movies and other IP, disconnecting – rather than “reforming” – potential customers will make little sense.

In the end, the internet is simply a (very important) technological invention. It should no more need enshrinement in law as a “fundamental right” than the right to use a telephone. Besides breaking the desirable “technology neutrality” of law, this would also seem to be a case of  “rights inflation“:

Deciding which norms should be counted as human rights is a matter of some difficulty. And there is continuing pressure to expand lists of human rights to include new areas. Many political movements would like to see their main concerns categorized as matters of human rights, since this would publicize, promote, and legitimate their concerns at the international level. A possible result of this is “human rights inflation,” the devaluation of human rights caused by producing too much bad human rights currency (Cranston 1973, Orend 2002, Wellman 1999, Griffin 2001b).

Effort is better spent on protecting existing rights, and limiting the power of government. Upper house anyone?

Tech Law news 8 April 2010

Global privacy regime mooted

New Zealand’s privacy commissioner, Marie Shroff,  has suggested that a United Nations treaty may be required to protect privacy.  She said:

“The reason for this is [a global regime] would bring legal certainty… We have to look at whether and how we can regulate to provide certainty for businesses and protections for individual citizens”

Legal certainty is a very good thing though as I said the other day, there is unlikely to be an “imposed” global regime, and Ms Shroff denied the proposal would be “some sort of a bureaucratic initiative to impose more regulation on business”. The continued development of international guidelines (also suggested by Ms Shroff), co-ordinated enforcement, and even UNCITRAL-type “model law” is more likely here (a TRIPS-like treaty could be a possibility). New Zealand’s “privacy principles” approach works well, and the Privacy Commissioner plays a good and efficient domestic role – could the New Zealand regime be a model template? Standards would also assist and reinforce the nascent “self-regulation” by the industry, such as the Digital Due Process Coalition launched recently.

New Zealand TV listings copyright row

Kiwiblog has commented on Sky TV’s recent attempts to prevent a software developer from distributing software that could be configured to copy its TV listing, claiming their listings are protected by copyright (more on this another day).

Net nuetrality setback

A US court has ruled that the Federal Communicationc Commission does not have the authority to stop an ISP prioritising traffic, meaning that the ISP can take steps such as choking file-sharing traffic. Some see this as a major setback for maintaining net nuetrality, while others are more sanguine. For the record, New Zealand does not have any internet nuetrality regulation.