Heather Roy’s Diary: More Flawed Law

This week Prime Minister John Key announced that the controversial Section 92A of the Copyright (New Technologies) Amendment Act, to be enacted at the end of February, has been delayed by Order in Council until March 27 2009. Mr Key has admitted that …

More Flawed Law

Hon Heather Roy, ACT Deputy Leader
Friday February 27 2009

This week Prime Minister John Key announced that the controversial Section 92A of the Copyright (New Technologies) Amendment Act, to be enacted at the end of February, has been delayed by Order in Council until March 27 2009. Mr Key has admitted that Section 92A could be “problematic” and may be thrown out.

Some commentators are describing Section 92A as deeply flawed, and predict it will have a chilling effect due to a lack of both clarity and due process – not to mention the severity of the penalty. These are the same kind of comments that were made about the Electoral Finance Act when it was enacted just over 12 months ago.

Passed last year, the Copyright (New Technologies) Amendment Act will see copyright infringers on the internet – anyone downloading music, movies, books or other copyrighted material they have not legitimately purchased – punished under a three strikes law, with the main punishment being that their internet access is cut off.

One of the controversial aspects of this law is that Internet Service Providers or ISPs become police, judge, jury and executioner in these cases. Further, those accused will have no ability to defend themselves against the allegations – they will be deemed to be guilty and have their access to the internet removed.

Section 92A states that:

“An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.”

While this is extremely vague, some commentators in the IT industry claim it means that an ISP must permanently terminate a user from the internet upon receipt of three complaints alleging copyright infringement. It seems that the music and video industries are the main drivers of this initiative, not ISPs – after all, why would an ISP wish to disconnect their users and lose their livelihood.

The history behind this is interesting. Section 92A was originally removed from the Bill at Select Committee, but former Associate Commerce Minister Judith Tizard was responsible for reintroducing it during the committee stage in Parliament. Her reasoning was that it was inappropriate for the Select Committee to remove a piece of proposed legislation that Cabinet had already decided should go ahead. Consequently, Section 92A was reinserted into the Bill by the previous Government shortly before the Bill was passed into law.

Section 92A has drawn angry, but entirely reasonable, reactions from various sections of the public – particularly bloggers, and even overseas commentators. Britain’s Stephen Fry – comedian, broadcaster and author – recently added his support to online campaigns against the new law. Here in New Zealand, a petition was presented to Parliament and an online protest culminated in last Monday’s ‘black out’ day.

ACT opposes Section 92A for its lack of clarity, failure to observe due process, attack on individual freedoms and the unnecessary burden and compliance costs it will place on ISPs – which, ultimately, will be passed on to consumers. As is often the case, many innocent parties will be caught in the cross-fire and making ISPs gate-keepers of this flawed law is both unfair and unreasonable. Apart from anything else, the new law imposes a penalty that no court would ever impose. Even those found guilty the most heinous of internet crimes do not have their internet connection cut off.

This is exactly the type of unnecessary legislation that ACT’s Regulatory Responsibility Bill will prevent. We already have sufficient legislation in place to allow copyright holders to seek redress from website owners or ISPs that allow unauthorised download of copyrighted material.

Disconnection of a user’s internet access, based on unsubstantiated accusations, does not fit at all well with New Zealand’s ‘innocent until proven guilty’ ethos or Bill of Rights. Many countries – including the UK and Germany – have rejected the idea as a breach of civil rights.

Much has been written about this issue, both in the media and on the internet. A very good source of this information can be found at http://www.kiwiblog.co.nz/tag/copyright.

Lest We Forget – February 24 1902
Fought between the British Empire and the Boer South African Republic (Transvaal) and its Orange Free State ally, the South African War of 1899-1902 – often referred to as the Boer War, or sometimes the Second Boer War – was the first overseas conflict to involve New Zealand troops.

February 24 marks the last day of the Battle of Langverwacht Hill, a conflict that began when a small group of Boers approached the British cordon at Langverwacht Hill – near the Orange River – with a herd of cattle.

The Boers drove the cattle against the wire entanglements connecting the British blockhouses, using the distraction to overwhelm a point in the cordon held by New Zealand’s 7th Contingent.

The New Zealand line was made up of small posts of five or six men in shallow trenches and, after penetrating this line, the Boers advanced up the hill to destroy a number of other New Zealand-held posts.

Ferocious close-quarter fighting ensued and the Boers managed to open a gap through which most of their force escaped. New Zealand casualties consisted of 24 killed and 41 wounded, from of a total of 80 men.

In total, New Zealand sent 8,000 horses and nearly 6,500 volunteers to South Africa – of whom 71 were killed in action or died of wounds, 26 were accidentally killed, and 133 died of disease.

Despite the setback at Langverwacht New Zealand troops were reported to have displayed great gallantry and resolution and, throughout the war, were highly regarded.

ENDS

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