Out-Law News 3 min. read

New Zealand pulls back from guilt-by-accusation piracy law


The New Zealand government has delayed by a month a controversial plan that critics say will allow internet users to be cut off just because they have been accused of copyright infringement.

Protesters created an internet 'black out' earlier this week to demonstrate against the proposed law. They replaced their websites with a black-out page directing users to an information page about the law.

Amendments planned for New Zealand's Copyright Act by a Labour Party government that has since been replaced included the insertion of controversial sections 92A and 92C.

Section 92A says:

"A Internet service provider must have policy for terminating accounts of repeat infringers“(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.

(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner."

Section 92C says:

"Internet service provider liability for storing infringing material“(1) This section applies if—

(a) an Internet service provider stores material provided by a user of the service; and

(b) the material infringes copyright in a work (other than as a result of any modification by the Internet service provider).

(2) The Internet service provider does not infringe copyright in the work by storing the material unless—

(a) the Internet service provider—

(i) knows or has reason to believe that the material infringes copyright in the work; and

(ii) does not, as soon as possible after becoming aware of the infringing material, delete the material or prevent access to it; or

(b) the user of the service who provided the material is acting on behalf of, or at the direction of, the Internet service provider.

(3) A court, in determining whether, for the purposes of subsection (2), an Internet service provider knows or has reason to believe that material infringes copyright in a work, must take account of all relevant matters, including whether the Internet service provider has received a notice of infringement in relation to the infringement.

(4) An Internet service provider who deletes a user’s material or prevents access to it because the Internet service provider knows or has reason to believe that it infringes copyright in a work must, as soon as possible, give notice to the user that the material has been deleted or access to it prevented.

(5) Nothing in this section limits the right of the copyright owner to injunctive relief in relation to a user’s infringement or any infringement by the Internet service provider.

Opponents of the clauses say that these clauses make it possible for copyright holders to have internet users cut off merely by accusing them of copyright infringements a number of times.

"[Section 92] assumes 'Guilt Upon Accusation' – cutting off internet connections and websites based on accusations of copyright infringement, without evidence or even a trial," said a statement from protest body Creative Freedom."

Director Bronwyn Holloway-Smith said: "The result of this law could be that one rogue employee or even one virus infected computer could bring down a whole organisation's internet and it's highly likely that schools, businesses, hospitals, and phone services will be harmed by this".

Many countries, including the UK, are considering whether to introduce 'three strikes and you're out' policies for people found to have engaged in online copyright infringement. New Zealand's plans were unusual because, according to opponents, there was no burden of proof required to disconnect users.

In the UK the Government has planned a new regime whereby internet service providers (ISPs) will have to contact repeat offenders and warn them of the illegality of their behaviour. Details of the activity can then be passed on to copyright holders.

According to the Government's Digital Britain report, though, the details can only be passed to rights holders under a court order and it is for rights holders to pursue action against alleged infringers. No disconnection obligation falls on ISPs.

New Zealand's controversial clauses were removed by a parliamentary committee last year, but reintroduced by government ministers.

Prime Minister John Key has now said, though, that it will hold back on passing the clause until 27th March. He said that the clause could be "problematic" and that it might be removed again, according to The New Zealand Herald.

Editor's note, 26/02/2009: When this story first appeared we had quoted only parts of the legislation. A reader pointed out that this misrepresented the effect of the law. This story now features the relevant clauses in full. We also changed the first paragraph of this story to make clear that it is opponents of the law who claim that users' internet connections can be cut off on the basis of accusations alone.

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