As spam law crawls, porn surges

AUCKLAND (03/12/2004) - The Films, Videos and Publications Classification Amendment Bill, which imposes increased penalties for possession and distribution of objectionable material, last week moved closer to law.

The bill, which has passed its first reading and is now set for public submissions before the government's administration select committee, could give ISPs cause for concern over material stored on their servers that can be seen by some or all users. The proposed legislation loosens the definition of "distribute" to include "make available".

Fines proposed in the bill for distribution of objectionable material, no matter how "borderline", run to NZ$30,000 (US$19,500) per offense (doubled from NZ$15,000) for an organization, or NZ$200,000 (previously NZ$50,000) if the offense involves "knowledge".

"Knowledge", as previously interpreted in the existing act, means knowing that the kind of publication "made available" is objectionable. Neither the act nor the amending bill clearly talks about knowledge or ignorance that the publication was on a suspect's computer system; neither is there any specific exclusion for the passive transmission role of an ISP.

The maximum sentence for an individual distributing or "making available" material known to be objectionable has been increased from one year's imprisonment or a NZ$20,000 fine to ten years' imprisonment.

TelstraClear spokesman Robert Allen says the company will almost certainly be making a submission on the bill reflecting the views of the telco and its two ISPs, Paradise and ClearNet.

He had not examined the bill in detail yet when he spoke with Computerworld, but points out that the company raised the question of ISP liability through passive transmission during the inquiry into the operation of the act last year, which resulted in the bill.

Telecom lawyer Brent McAnulty said last week he was scheduled to meet with other lawyers for the company on Friday to decide on who would formulate a submission and what it would contain.

Meanwhile, the Department of Internal Affairs, responsible for policing compliance with the legislation, acknowledges that it does not know whether or not the Internet is the predominant means of distributing objectionable material, despite the fact that it concentrates its efforts substantially on that medium, involved in 25 out of 26 prosecutions last year.

"Objectionable material is distributed through a variety of means, including websites, peer-to-peer applications file-server applications, chatrooms, e-mail, mail order and by hand," writes Keith Manch, general manager gaming and censorship regulation, in a letter to Computerworld.

"It is difficult to ascertain what the predominant means of distribution is, but the department has prosecuted offenders who have used all these forms of distribution."

The department states on its Web site that "censorship enforcement activity currently concentrates largely on the distribution of objectionable material via the Internet."

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