Global mode: InternetNZ bemused by chief censor's interference

I agree with InternetNZ CEO Jordan Carter (see RAW DATA below).

It is bemusing that the chief censor would consider prosecuting* Slingshot over its Global Mode, which gives Kiwis access to offshore content services like Netflix, Hulu, Amazon Prime and the BBC's iPlayer that are usually blocked in New Zealand. Various of these offshore streaming services feature content that has not gone through New Zealand's classification system, as required by the Films, Videos and Publications Classification Act.

Slingshot's owners, CallPlus, says remains confident in its legal position (its advisor is Lowndes Jordan partner Rick Shera).

Regardless, it's just wrong to hold ISPs to account for what customers do on their networks. It's the equivalent of robbers stealing cash from a bank and escaping down State Highway One — then the police deciding to prosecute Transport NZ for enabling the crime.

But if that's the route the censor wants to go down, he'll want to prosecute not just Slingshot, but all the major ISPs. Slingshot (and Orcon and MyRepublic) make it easier for laymen, but all ISPs have got caching in place that helps enable watching Netflix from NZ (as we discovered in May when settings changes by Netflix temporarily blocked access). Any ISP can be used to access all many of un-rated adult material (I hear). And of course there's un-rated content galore on YouTube and other services 

Jordan also makes a good point against NZ Post's YouShop, which can be used to orders DVDs and other products from the US that are not usually blocked to shipping to NZ. Again, where's the consistency?

Hopefully the censor isn't about to embark on a broad-ranging sweep against services that free us from regional blocking (which is designed to protect old-world regional distribution monopolies, not copyright). The people who want to watch uncensored material will find it anyway, and consumer choice will suffer.

Online game sales are already in Dr Jack's sights.

What should he do next? Go to Parliament, and get some public discussion going about upgrading his office for the internet era? What tools does he need? What's practical? What's not? Resolve those questions before flailing after ISPs, and making life more expensive for local services like Lightbox (which claimed at InternetNZ's Nethui that the need to classify its steaming content as if it were a series of DVDs added to its time and costs, disadvantaging it against more traditional rivals like Sky TV. I have to take it with a grain of salt that The Warehouse is backing Slingshot's possible prosecution).

And maybe stop by and have a cup of coffee with Jordan.

ckeall@nbr.co.nz

* UPDATE: Lawyer and intellectual property specialist Michael Wigley notes that it would likely be Internal Affairs that would bring any charges. Also that "The censorship legislation recognises the conduit role of ISPs, couriers, NZ Post etc and that such conduits should not be liable as distributors of content.  For example, excluded from liability are telecommunications network operators and internet access service providers “providing only a network or facility through which the contents of the publication are transmitted”. See NBR's November 22 print edition for more of Mr Wigley's analysis.

RAW DATA: InternetNZ statement

InternetNZ is surprised and bemused by recent comments from Chief Censor Andrew Jack that he is considering "prosecuting" Slingshot over its GlobalMode service that enabled Internet users to access sites that were otherwise blocked in New Zealand.

InternetNZ does not believe that an Internet Service Provider is responsible for what its customers do on the Internet and that to suggest otherwise creates a bizarre world where Internet providers are held up to a different standard to other utility suppliers.

InternetNZ CEO Jordan Carter says that CallPlus has every right to provide this service. “The courts have not decided that the service is illegal,” he says. Comments from the Censor would seem to single out ISPs for special treatment, and that isn’t good for the Internet or for Internet users.

"I don't recall the Censor making similar claims when NZ Post started YouShop, enabling customers to order items that were unavailable in NZ and have them delivered to a phoney address in the United States.

"We don't criticise road construction companies for speeding and we don't attack phone-line companies if someone makes a prank call.

“To suggest that Slingshot is responsible for what its customers do on the Internet is not a good idea, and not something to be encouraged."

Mr Carter says that the online world should be analogous to the offline world with regards to law like this and the reported comments from the Censor's office do not help.

“The reality of Internet-based services is that the border becomes less important. Rather than this reactive approach, the Censor would be better placed starting a conversation about how censorship questions should be dealt with in the Internet age,” says Mr Carter.