TelstraClear has quickly withdrawn at least one Usenet newsgroup from the repertoire of both its ISPs, Paradise Net and ClearNet, after being made aware that most of the postings of binary image and video files in the group are almost certainly illegal.
This highlights a possible problem in prospective law for ISPs, who have no telco-like “common carrier” immunity from illegal material on their systems, or even against entire newsgroups with doubtful themes.
A bill currently before select committee to amend New Zealand censorship law expands the definition of “distributing” objectionable material to include “providing access to”. This squarely describes what ISPs do with respect to Usenet "news" and website content.
With no defence of ignorance in the law, despite much-increased penalties contemplated by the new bill, an ISP might find itself liable for fines of $30,000 per offending image. So will any user who trusts a newsgroup put up by a New Zealand ISP to have content that is likely to be legal.
Even casual text postings might in future cross the legal borderline, with a proposal to admit offensive language through the “gateway” justifying censorial attention. This gateway has previously been limited to “matters such as sex, crime, cruelty, horror and violence”.
United Future MP Marc Alexander had a member's bill before Parliament to broaden this “gateway” even more (see Capital View), but Alexander says his bill has been withdrawn since it overlaps with the government proposals and “no longer serves the purposes I originally saw for it”.
“The policy for both ClearNet and Paradise is that we take guidance from the Department of Internal Affairs when it comes to which groups we do and don't make available,” says TelstraClear spokesman Michael White.
“If the DIA asks for something to be removed because it contravenes New Zealand law, we remove it ASAP.
“There is also some removal of groups by the upstream [overseas] companies which supply us with the service”
Further, groups are sometimes removed from local feeds because of a well-founded complaint from a user, says White. The ISPs do not respond to quarrels between opposing factions which sometimes demand that groups be removed because of the perceived unacceptability of contributors’ opinions, he adds.
Clearly the group concerned slipped through all those holes. The kind of material in another group carried by Paradise has been the subject of criticism in press and television and from anti-child-exploitation campaigners such as Denise Ritchie.
The Office of Film and Literature Classification, home of the chief censor, declined to venture an official finding or indicative opinion on the acceptability of the latter group. OFLC information unit advisor Virg Burns said “the matter you refer to is an enforcement issue and is therefore most appropriately dealt with by the Department of Internal Affairs”.
Whether the legality of widely available images should be settled by the Classification Office before they become a matter of “enforcement” is a moot point.
Peter Macaulay, executive director of InternetNZ says no one should be in any trouble if they have any item inadvertently or when they have good reason to believe it to be legal to have it.
"Monitoring emails, newsgroups and websites is taking 30,000 civil servants in China, which makes it a fast growing global industry," he adds. "Let’s stay sensible. I don't think we have a major problem here."
The Department of Internal Affairs had not commented on the issue by press-time.