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Officials drop the BORA on 92A

By Steven | February 23, 2009

Our Bill of Rights vetting process has failed miserably again.

This is the system that’s supposed to pick up rights issues when a Bill is introduced to Parliament and consider whether the proposals are demonstrably justified. When a Bill affects free speech, officials are supposed to highlight the problem and ask questions like: “What’s the evidence that there’s a problem here? What’s the evidence that this solution will fix it? Are there any other ways of tackling the problem that might tread less harshly on free speech?”

The new copyright amendments certainly raise free speech concerns. What did the officials giving the BORA advice have to say about whether the “termination of repeat offenders” provision is demonstrably justified?

Look at the legal advice they gave. It’s six paragraphs long. It didn’t even pick up the section 92A problem (or this one). It just rubber stamps the Bill saying that, of course copyright restricts free speech, but hey, we think the restrictions it contains are reasonable. (To be fair, section 92A was in slightly different form when  this Bill was introduced. The “repeat infringers” policy wasn’t actually mandatory, as it is in the final version: it was merely a condition that ISPs had to meet if they wanted a degree of legal protection from being held liable for copyright infringements by users. Still, it really was effectively mandatory for ISPs, since the protections being granted were so important, so I think the issues should still have been addressed).

The vetting process is supposed to act as a warning system to Parliament, and to feed into the debate about the Bill. I’ve been watching freedom of expression vets for a long time now, and they almost invariably just give the Bill a green light with no real attempt to test the restrictions for their justifiability. We really should be doing better.

Topics: Copyright, Internet issues, NZ Bill of Rights Act | 52 Comments »

52 Responses to “Officials drop the BORA on 92A”

  1. Graeme Edgeler Says:
    February 23rd, 2009 at 10:26 pm

    Perhaps the analysis turned on section 3?

    It’s the best I can come up with to explain it…

  2. Andrew Easterbrook Says:
    February 23rd, 2009 at 11:44 pm

    I agree, but could part of the problem be that the vetting process is done at too early a stage? Certainly in this case when changes that affected the extent of the effect on free speech were made, another report ought to have been done? Or is it that the issues weren’t fully comprehended until now (which I suppose is another failure of the system).

    As a side point, do you think there’s anything to the idea that 92A and 92C could place different requirements on ISPs? 92C links “reason to believe” with infringement notices that can be merely accusations, whereas 92A says “there must be a policy for dealing with repeat infringers”. Considering the fact 92A seems to have the harsher penalty and place *more* of a burden on the ISP (determining not only breach but also repetition), is it reasonable to assume that 92C’s lower standards would NOT apply to 92A? The legal advice the ISPs have taken in the code of conduct suggests they want to be safe, so to avoid the possibility of 92C’s easy-to-meet liability threshold applying in 92A have made it apply to both. It’s prudent I suppose.

  3. Blog Bits | Kiwiblog Says:
    February 24th, 2009 at 9:53 am

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  4. Steven Says:
    February 24th, 2009 at 12:16 pm

    Andrew: yes, early vetting is part of the problem. Alas, the Boscawen case confirmed what is probably already obvious on the wording of the BORA: that the analysis is performed on introduction, and need not be re-done even if changes are made during the legislative process. This problem has been highlighted by many people. The government does sometimes take advice about the effect of such changes but (a) it doesn’t have to and (b) there’s no process for making public that advice.

    As for the difference between 92A and 92C – right again. The standards are noticeably different, and we must assume that this is deliberate. I’m not quite sure what to make of the difference, but it certainly would have been quite simple for Parliament to insert a “reason to believe” phrase in section 92A.

  5. georgebolwing Says:
    February 24th, 2009 at 3:00 pm

    I agree that the BORA process is not a good protection of our rights.

    The approach seems to be too superficial, as in this case. And as we saw with the EFA, the Attorney-General is, above all, a politician.

    Steven: a probably impossible question, but one I will pose anyway. Do you think that Section 92A would have breached the First Amendment to the US Constitution?

  6. Anita Says:
    February 24th, 2009 at 4:45 pm

    It’s not the guilt-upon-accusation thing that bothers me most, it’s the position that ISP’s are being put into. A landlord can terminate a tenancy for tenancy related misbehaviour, but they’re not legally required to terminate for um… accusations of GST fraud against the tenant even if it’s a commercial tenancy and the tenant is running the business from there.

  7. Chris Diack Says:
    February 24th, 2009 at 8:58 pm

    “Drop the ball” minimises what seems to me to actually be a trend.

    I concluded that the s7 NZBORA system is broken for most issues that really matter on the EFB.

    It’s a system that relies actually on embarrassment by notice. Government politicians know that in most cases, however skilled, no communications strategy would be able to cope with reportage that says a proposed law contravenes the NZBORA.

    The problem is that state lawyers and Attorney General’s are reluctant to embarrass.

    If this is the case then an ongoing obligation to report inconsistency solves nothing.

    The real issue is therefore: the fix. I have not read anything about any alternative proposal.

    It seems to me that the Attorney General should actually positively report initial consistency and at the completion of the committee stage. If he fails to do so, or is unable to do so, or if in the opinion of the Speaker there is a substantial argument on the issue, then the Speaker should seek an opinion of behalf of Parliament from a senior member of the profession from outside the State. The Speaker doesn’t assess the opinion; he or she simply relays it to Parliament. It would be a parliamentary process and therefore subject to parliamentary privilege.

    This system would recognise that the threat to fundamental freedoms will primarily come from Governments, and that State lawyers advising in their legal capacity the Attorney General in his legal capacity is not a sufficient protection for these fundamental freedoms. I have also concluded that senior independent members of the profession protected by privilege are generally less reluctant to embarrass Governments.

  8. Steven Says:
    February 25th, 2009 at 10:21 am

    Chris: I’m afraid one of the problems is that when the Attorney-General does report a BORA inconsistency (and it has happened many times), the media very seldom pick up on it. Lots of laws have been passed in the face of A-G’s reports.

  9. Steven Says:
    February 25th, 2009 at 10:50 am

    George: dunno. Copyright is given special recognition in the US Constitution, but my gut feeling is that s 92A would struggle to pass consistutional muster under the First Amendment. The answer would depend on the very questions that I think our BORA vetting process failed to ask, and in particular whether there might be some less restrictive way to achieve the same end.

  10. Rick Shera Says:
    March 6th, 2009 at 2:08 pm

    @Andrew E re s92A vs 92C & D

    Yep – a real problem. The TCF code was going to try to assimilate the two but I think it just got too hard (maybe later?). Once you decide that there needs to be a high standard of proof before you terminate someone’s internet account, that is hard (impossible?) to reconcile with “reason to believe” in s92C. BUT, a number of s92C & D takedowns must almost by default constitute a s92A repeat infringement = real problem for an ISP because it has to grapple with two quite different standards. This is what you get when you put things back in by SOP a week before a bill is passed without talking it through with the very ISPs who are faced with implementing it (let alone the general public).

    @George re US law

    In fact our s92A is based closely on US DMCA (but, in my view, because of overarching fair use in the US, we are in a *worse* position (Juha Saarninen blogged my thoughts on this at http://www.geekzone.co.nz/juha/6270 if you are interested)

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