ISPs saved from negative effects of censorship Bill

Providers won't be liable for distributing objectionable material unless they are aware of its content, says amendment

ISPs appear likely to have saved themselves from the risk of prosecution for unknowingly "making available" objectionable material — and customers, according to Telecom, from a potential rise in ISP charges due to the cost of extra policing procedures.

The ISPs and other submission writers got their point across to the Parliamentary select committee considering amendments to censorship legislation. Aspects of the Films, Videos and Publications Classification Amendment Act, they say, could have handicapped the operation of ISPs and penalised users for unintentional download of objectionable material, for example, as spam.

The committee has recommended further amendments to remove this risk.

“We recommend [narrowing] the meaning of ‘distribute’ in the bill to ensure that persons are not caught by the Act’s relevant offence provisions, as amended by the bill, unless the specified mental elements are met,” says the committee. "That is, the person must intend, or know of, the act of distribution and must know of the contents of the publication distributed.

"To avoid doubt, [the pertinent clause] is further amended to clarify that providing some or all of the technical means for distribution (such as access to the internet or the provision of a postal service) is not by itself ‘distribution’. We consider that persons, and internet service providers, should not be liable for the distribution offences without the requisite mental elements.”

Telecom submitted that if it were required to police the content going through its connections and ISP servers in order to avoid prosecution, it would have to raise the cost of service provision (Computerworld, June 26, Page 9). TelstraClear and InternetNZ also said the proposed extension of the meaning of “distribute” to include “provide access to” would unfairly broaden liability (May 24, Page 10).

The requirement for intent and knowledge of the content of files, if passed by parliament, also appears to cover the risk raised in these pages and by PC World regarding file-swapping through peer-to-peer networks; that someone could download a file not realising its illegal nature, and an Internal Affairs inspector could see and upload it again before the user realised the mistake. This would have unfairly stigmatised the user as a collector and perhaps distributor of illegal material.

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