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[FYI] (Fwd) NZ Law Commission Recommends ISP Liability

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Date sent:      	Wed, 24 Nov 1999 20:15:32 +0900
From:           	Michael Baker <mbaker@pobox.com>
Subject:        	NZ Law Commission Recommends ISP Liability
To:             	gilc-plan@gilc.org
Send reply to:  	gilc-plan@gilc.org

h&theS toryID=103651

New Zealand Herald

23/11/99 - Act would make ISPs liable


Internet service providers (ISPs) could soon be facing defamation and
other legal action if the Law Commission's recommendations for an
Electronic Transactions Act pass into law.

The wide-ranging set of proposals intended "to remove the immediate
barriers to electronic commerce" in New Zealand laws includes a
provision to clarify the liability of ISPs. Under current law it is
unclear when, or if, ISPs could be liable for material hosted by them,
including the vast array of free-for-all newsgroups carried on most
ISPs' news servers.

The Law Commission takes the view that ISPs should face defamation or
other charges only if they have "actual knowledge of existence of
information on the web site which would be actionable at civil law or
constitute a crime".

If the ISP did not then take action to remove the offending
information, it would be liable.

The provision is likely to cause an outcry among ISPs which have
always argued they are mere carriers of information and not the
publisher. Under such a proposal ISPs, once informed about
objectionable material, would need to seek legal advice to determine
whether it was actionable.

In its 268-page report - "Electronic Commerce, Part Two: A Basic Legal
Framework" - the commission is sympathetic to ISPs' plight, accepting
they need to be protected through an "innocent dissemination defence".

But it also proposes that that ISPs are more than just carriers of
information and should be liable if they knowingly permit information
to stay online.

The provision aims to provide a way to prosecute the secondary rather
than the primary publisher of objectionable or defamatory material on
the internet - although the commission does appear to understand the
difficulties of enforcing such a provision in the immediacy of the
online world.

It proposes: "ISPs will not be liable for the reposting of information
by a third party that has previously been removed." But ISPs may end
up in an impossible cycle because as soon as they have knowledge of
the reposting, they must then remove it. How such a law might be
applied to the thousands of newsgroups carried by ISPs each carrying
hundreds of messages per day - many of which may very well be
defamatory or objectionable - has yet to be determined.

The call for an Electronic Transaction Act is also a call for the
Government to intervene quickly with legislation that encourages
electronic commerce and to catch up with Australia which already has
such an Electronic Transactions Bill before parliament.

Other provisions aim to clarify the legal standing of electronic
rather than paper documents - particularly in relation to statutory
requirements that certain documents be "in writing", "signed" or
"original." The recommendations stop short, however, of dealing with
the thorny issue of electronic signatures that require "personal
presence or attendance" (such as a witness) which the commission
claims will be better dealt with later.

The commission also takes a swipe at the computer misuse provisions of
the Crimes Amendment Bill, saying that the two offences contained in
the bill are narrower than the four offences it recommended. The
report proposes a fifth offence - "intentionally and without authority
gaining access to data in a computer" - is now also necessary. The
offence is designed to cover electronic trespass where a hacker gains
access to a computer but does not necessarily do anything.

 Copyright 1999, NZ Herald 
Dr Michael Baker, EFA Founding Board Member, ISOC-AU Founder Member PO
Box 5, Flaxley, SA 5153, Australia Ph: +61 8 8388 8439
<mailto:mbaker@pobox.com> <http://pobox.com/~mbaker> For more info:
<http://www.efa.org.au> <http://www.isoc-au.org.au>

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