Förderverein Informationstechnik und Gesellschaft

NZ Law Commission Recommends ISP Liability

------- Forwarded message follows ------- Date sent: Wed, 24 Nov 1999 20:15:32 +0900 From: Michael Baker <> Subject: NZ Law Commission Recommends ISP Liability To: Send reply to:

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 <> <> For more info: <> <>

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