Controlling the Narrative - Part 3

An Early Legislative Attempt

Controlling the Internet

Control of the Internet and the use of law to do that is not new. Calls to regulate content and access to it have been around since the Internet went public. The narrative on Internet danger and the need to do something about it has been with us for a while.

The Technology and Crimes Reform Bill – An Early Effort

In June 1994 Trevor Rogers MP introduced a Private Members Bill, the Technology and Crimes reform Bill 1994, into the New Zealand Parliament.

The Bill proposed to ban objectionable material, including pornography, racism and violence from telecommunications and computer networks. The purpose of the Bill was to protect children from pornography – a commendable goal.

A discussion of the Bill can be found here.

The Bill made it an offence to broadcast, transmit, communicate or receive objectionable images or sounds by electronic means. It seemed to focus upon Web-based materials and did not seem to cover IRC chat – an early message board system.

Operators were concerned that they may have had to have scanned all data conveyed across the network to avoid transmitting objectionable material. The University of Waikato, which was the primary link to the Internet at that time, threatened to sever links to the Net.

The Bill was very wide ranging. It proposed that the broadcast, transmission, communication or reception of objectionable images or sounds for pecuniary gain through any broadcasting or telecommunications link or any form of electronic satellite or other transmission be made an offence. Thus, ISP’s who charged users for services and whose network was used by a customer to transmit objectionable material could face criminal charges.

The ambit of the proposal was wide-ranging. It not only addressed the Internet. It also covered TV Broadcasts and would have been an addition to the Films Video and Publications Classification Act 1993.

The Bill provided a limited defence for providers of telecommunications services that had been designated as network operators under the Telecommunications Act 1987 – they would not be liable if they did not know or had no reasonable cause to believe that the image or sound transmitted was objectionable. No defence existed for providers of other network services.

Opposition to the Bill

The Bill was the subject of fierce opposition. Many network operators and service providers took the view that the Bill took an oversimplified approach to the multi-layered nature of the New Zealand telecommunications industry.

Operators claimed that their service was to provide a channel for users, not to monitor the information that passed through the channels. To avoid committing an offence ISP’s would have been required to screen material and some services operated could have become unusable, such as Usenet News. It was technically impossible for the Waikato Gateway to screen material or contain content flowing through its network.

A number of changes were proposed by Mr. Rogers, but in its initial form the Bill had the potential to result in a major disruption to the provision of computer and telecommunications service. The loss of the Internet was a possibility. ISPs discussed ceasing transmission. Even with the changes that were suggested by Mr. Rogers, the Bill still amounted to a substantial interference with the freedom of expression.

What started out as a Bill with laudable goals became a nightmare that had the potential to severely hamstring the Internet if not make it unavailable in New Zealand. An abysmal lack of understanding of the nature of the technology to be regulated was apparent on the part of the proponent of the legislation, and a lack of knowledge that the true dangers to children lie not in pictures downloaded from the Web but in some of the murkier corners of IRC chat-rooms – an area not addressed by the Bill.

The Commerce Committee

The Bill was referred to the Commerce Committee and numerous submissions were made.

While acknowledging the problems of controlling access to overseas material on the Internet, the Committee made a portentous and ominous observation:

“We acknowledge that at present it is virtually impossible to control material that is brought in from other countries on the Internet. We welcome the introduction of a voluntary code of practice and ask that it be strengthened. We consider the Government should seek to achieve the development of an international code of practice.

We note that there is widespread public concern. We support the work done by the Department of Internal Affairs and note that prosecutions that have been taken under the Classification Act have received widespread publicity. We believe that the Government needs to ensure that this work is resourced adequately.

As Internet technology advances, the Government's ability to regulate communications over the Internet may concomitantly increase.”

The Committee observed that there were already provisions in the law that dealt with many concerns, and referred to s. 214 of the Crimes Act (relating to presentation of any indecent show or performance) as well as the Films Videos and Publications Classification Act 1993.

It examined the activities of the Department of Internal Affairs and their prosecutions of those who had committed offences against the latter Act. It observed that there would be substantial fiscal implications for the Department should the Bill be implemented in that the Classification Office would have yet another role.

The Committee reached the following conclusion, the last sentence containing the underlying premise that the Government should regulate the Internet.:

“Over the last two years, the Films, Videos, and Publications Classification Act 1993 has been applied to Bulletin Boards and to the Internet, insofar as material has been stored and transmitted to another party. Some protection is provided by vetting software such as "Net Nanny". There is no penalty for simply receiving a transmission.

If objectionable material is simply received and stored there is a problem in obtaining access by way of a search warrant to the premises.

We believe it would be unjust to prosecute people for simply receiving objectionable material. The simple receipt of material may not be made with criminal intent and may breach section 25 (c) of the New Zealand Bill of Rights Act 1990.

Any attempts to impose a censorship requirement on receiving objectionable Internet, satellite and other transmissions are likely to exclude a good deal of innocent material.

The Films, Videos, and Publications Classification Act 1993 applies mainly to supplying objectionable publications. Internet service providers often have little control over material they transmit and often it would be wrong for them to be penalised for doing so. Vetting devices, although imperfect, provide some protection.

We consider that the voluntary code by Internet service providers is the best option for New Zealand. However, the code needs to be developed to place an onus on providers to attempt to exclude objectionable material. We believe the industry should be self regulating both nationally and internationally and should develop stronger codes of practice in its own interests. We consider the Government should seek to achieve the development of an international code of practice.

As Internet technology advances, the Government's ability to regulate communications over the Internet may concomitantly increase.”

Thus the first major attempt to regulate the Internet in New Zealand was an attempt to regulate content.

Because the proponent of the Bill did not understand the technology, the implications for the new Internet became much wider than he obviously intended.

Indeed, the issue became one of Internet access as ISP’s and others involved in the developing Internet industry recognised that the proposed legislation would impose large, impractical and uneconomic burdens upon them.

The fact, too, that the widest implication of the Bill was that New Zealand could lose Internet access altogether if Waikato closed the Gateway was a real concern, and virtually would have thrown this country into an information Dark Age.

Between 1994 and 2010 there were various desultory efforts undertaken to address the problems posed by the Internet.

The introduction of sections 248 – 254 of the Crimes Act, addressing various types of computer crime were introduced in 1999 although were not enacted until 2003.

But the next major efforts both to consider regulating the Internet and the messaging around that came with the rise of Web 2.0 and social media, the ability to interactively place content on the Internet and the Law Commission review of new media and news media.

That will be the subject of the next article.