ISP Name Suppression Rick Shera lawgeeknz Futility TVNZ

ISP Name Suppression Rick Shera @lawgeeknz

Futility • TVNZ v R “The Court should be reluctant to leave an order in effect if it is already, or is likely to be, ineffective in practice because of actions which are not themselves in breach of the order” • Global Internet – Police v Slater

FUTILE

Problems anyway • New and untested both in Crimes Act and internationally • Who is an ISP? Select Committee re copyright definition: “… universities, libraries, and businesses that provide Internet access but are not traditional ISPs” should be excluded • Multiple ISPs • Chilling effect

How does ISP know? • reason to believe vs actual knowledge (lack of “mens rea”) • Contrary to Law Commission report (and Cabinet approval of Law. Com report): “Where an ISP … becomes aware that they are carrying or hosting information that they know is in breach of a suppression order. . . ” [emphasis added]

Notification • Official notice required to prevent bogus use (chilling effect) • National Register insufficient – What if order lifted or varied? – Who has access? – Doesn’t give ISP knowledge of breach

Knowledge of breach • ISPs different from media who can choose to publish or not • DPI unworkable • Keyword searching unworkable • Coded or obscured material unworkable • Should not apply to transmitting ISPs anyway

Solution • Delete section 216 – problems outweigh benefits • If it remains: – official notice to ISP of details AND location – By analogy to interception regime: • No liability for ISPs • Cost recovery? L A I C I F OF E C I T NO