A Bill has been introduced to parliament this week which, if enacted, has the potential to materially change the responsibilities and legal obligations of online content hosts when objectionable content is upload by a user of these platforms.
Objectionable content online - new take-down provisions
The Film, Videos, and Publications Classification (Urgent Interim Classification of Publications and Prevention of Online Harm) Amendment Bill proposes that new authority be granted to the Inspector of Publications to issue enforceable take-down notices for objectionable online content. This proposed legislation would affect all online platforms that support user content, whether they are large scale social media networks or smaller websites or applications.
The Bill represents a significant development in the regulation of online content sharing platforms in New Zealand. These platforms have typically enjoyed the protection of safe harbour provisions that mean they are not generally liable for objectionable content that is shared by third parties on their platforms. The amendments would remove some of those legal protections for content sharing platforms and introduce a clear mechanism by which regulators can hold online content hosts responsible for objectionable online content hosted on behalf of others. Although the explanatory note to the Bill states that its intention is not to undermine the “current collaborative practice" whereby online content hosts voluntarily remove objectionable content on request (noting that such an approach remains “first and preferred"), the content of the Bill indicates there is serious legislative concern as to the effectiveness of the status quo.
If a take-down notice is issued in respect of any user content, the obligations of a content host would broadly be as follows:
The content must be removed as soon as is reasonably practicable but no later than the time and date specified on the notice,
If the notice requires, the host must securely retain a copy of the relevant online publication for the purpose, and disclose it to an Inspector on request,
All copies of the publication over which it has access or control must be destroyed by the host as soon as is reasonably practicable, unless it is being held on request of the Inspector or for purposes of lodging a specified application or submission under the Act.
The proposed definition of 'online content host' makes it clear that this amendment is intended to apply across the board to any “person who has control over the part of the electronic retrieval system, such as a website or an online application or similar, on which the publication is accessible".
In the case of non-compliance, the available remedies against the host include a court order to comply with the take-down notice and an order to pay a pecuniary penalty to the Crown of up to NZ$200,000 or as the court determines appropriate in the circumstances.
Notably, the introduction of this take-down notice regime is accompanied by a commensurate exclusion of the safe harbour provisions in the Harmful Digital Communications Act 2015 (HDCA) to processes and proceedings under the Film, Videos, and Publications Classification Act 1993. As such, the above penalties would not be limited by such provisions in the HDCA.
Other changes proposed
In addition to the take-down notice regime, there are other significant legal developments proposed in the Bill, which include the following:
The Bill would make livestreaming of objectionable content a criminal offence. This would not implicate the online content host directly, however livestreamed content may be the subject of a take-down order.
The Bill introduces new powers to the Chief Censor to make an interim classification assessment that a publication submitted to the Office is objectionable. The stated purpose of this amendment is to facilitate a swift response to the “sudden appearance and (in the case of online publications) viral distribution" of objectionable content.
Finally, the Bill also provides a framework for the establishment of future mechanisms for government backed web-filters that are responsive to objectionable content. The framework sets requirements for any such future system, including the need for it to have a reasonably reliable capacity to both identify and prevent access to publications based on specified criteria. Consultation, including with internet service providers and the public will be necessary in designing and finalising such a system.
As the Bill was only recently introduced, there is still a long way to go before it becomes law. We expect that there will be considerable debate about the potential benefits and draw backs for online services and users alike, including politically charged issues such as the freedom of expression online and the role of government in regulating online interaction. We will be tracking this Bill as it continues through the legislative process, and encourage affected clients to consider making submissions when the opportunity arises.
If you have any questions about the issues raised in this article, please contact the authors or your usual Bell Gully adviser.
This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.