TelstraClear and InternetNZ focused on the responsibility of ISPs for network traffic in their submissions to a select committee on censorship changes.
The government administration select committee on suggested censorship legislation, the Films, Videos and Publications Classification Amendment Bill, heard that the proposed law fails to include any exemption for unknowing carriage by ISPs. This has been requested of government periodically for some years. The bill also expands the definition of “distributing” illegal material to include “providing access to”, the submissions note.
“TelstraClear is concerned … that the new definition of ‘distribute’ suggests that persons, including ISPs, who provide access to an objectionable publication could have breached the act even though they are unaware of the publication’s existence,” says the company’s submission.
InternetNZ points out that an ISP could be held to account for “providing access to” material hosted anywhere on the internet, regardless of whether or not any New Zealander downloaded it.
Both organisations go into bat for the user who acquires material by way of spam, a trojan or a popup ad, and is ignorant of the fact that s/he possesses it.
Both also note that a user can intentionally download a file whose name does not give a clear indication of its content.
Tackled with such questions earlier this year, Justice Minister Phil Goff told Computerworld that “the courts have made it clear that, to be guilty of a possession offence, the Crown must prove that the defendant had actual or potential control of the publication; knew what it was that he controlled; had the intention to exercise control; and had possession voluntarily.”
TelstraClear and InternetNZ clearly have doubts about leaving this matter to case law. They recommend a specific clause be inserted in the bill providing a defence of unknowing possession.