Users will suffer price rises and degraded internet service if Xtra has to act as censor over traffic passing through its systems, Telecom says. That’s what it will have to do to avoid prosecution if the current version of the Films, Videos and Publications Classification Amendment Bill goes through, it believes.
No exemption has been given to ISPs for a charge of unknowingly “distributing” objectionable content in the latest censorship law amendments, despite Telecom and other telcos and ISPs earlier getting an apparently sympathetic ear from the Government administration select committee.
In addition, the definition of “supplying”, “distributing” or “importing” such content has been expanded to include “providing access to”, and the qualification that supply be “for gain” has been removed.
This potentially makes ISPs vulnerable merely by linking to the internet without comprehensive and costly filtering or monitoring precautions, says Telecom. Distributing objectionable material is and will remain an “offence of strict liability”. Lack of intention or knowledge is not a defence.
“The effect of these amendments is that the burden and risks that ISPs already face under the current provisions are increased,” Telecom’s submission on the bill says.
“Telecom submits that under the broadened ambit of the strict liability provisions, it is now more likely for an ISP to be found liable under the act in its role as a pure access provider, despite an inability to effectively monitor or control the content it provides access to.”
Telecom says without a suitable exemption ISPs will be forced to pass on the costs of bearing these risks to customers, which will lead to a lower quality of service.
TelstraClear and InternetNZ have made similar points, but did not raise the question of increased costs to all as pointedly as Telecom has.
Telecom points out that the position adopted by the bill is inconsistent with legislation in other countries, including Australia, and with the New Zealand government’s own position on online breaches of copyright.
“In the cabinet paper [on copyright policy recommendations in 2003], the associate minister recommended that the potential liability of ISPs for copyright infringement be limited in certain circumstances, to ensure continued access for consumers to internet services at reasonable cost.”
In response to Telecom’s first submission, during an inquiry into the operation of the law, the select committee recommended that the government consider the strict liability issues raised by Telecom and others. Government has rejected this recommendation, Telecom notes.