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What's Legal, What's Not? 30 July 2002 Edition
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This seems to be an issue that simply won't go away -- what's legal and what's not when it comes to the Net and digital media?

Kiwi websurfers and music-lovers could be forgiven for being very, very confused about what will get them into trouble and what won't.

Last week I tried to clarify the situation in respect to copyright law -- but the Net is a global medium and we're constantly being bombarded by news reports from the USA and Europe where different laws apply. It's no wonder therefore, that many people are still not sure where the legal line sits.

And then there's the seemingly larger issue of exactly what parts of the law are likely to be enforced.

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I think it's fair to say that for a law to be fair, it should be enforced with some consistency -- but that's perhaps the weakest aspect of our legal system's attitude to all things Internet.

Take the recent name-suppression order relating to an attempted kidnapping in Wellington.

As I mentioned last week -- the name of the intended victim was suppressed by the courts but was published on an overseas news site virtually the next day.

Although I didn't link to that story, several other locals did -- and one even named the individual concerned in a usenet newsgroup.

That newsgroup message was held on numerous news-servers right here on NZ soil and effectively published to thousands of eager NZ Net users.

Yes, that's right, XTRA (and others) were effectively publishing this suppressed information directly from one of their servers. It wasn't transparently imported from some overseas site -- it was created locally and uploaded directly to an XTRA server, where it remained for some time.

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Were those ISPs whose news-servers carried the messages which breached the court suppression order legally liable?

Well a very very similar incident in the UK might indicate that there's good reason to assume they might be.

The fact that neither the ISPs, nor the individuals who posted the information breaching the order have even been warned against their actions sends a clear message to others that it's okay to do this.

I'm not going to voice any kind of opinion as to whether this is a good thing or not -- except to reiterate that if the powers that be expect laws to be obeyed then they must be prepared to enforce them in a consistent manner.

Which is why I find this story very worrying.

If Jane Clifton is prosecuted for breaching the court suppression order then it would make a mockery of the claim that we have a justice system in this country.

The story she wrote was not published in New Zealand but Clifton appears to be in the gun. However, several other NZers who did publish the same information on a number of local sites seem to have done so with impunity.

Perhaps this is just another example of how NZ seems to be turning into a country where there are two standards by which the laws are applied.

Or maybe it's just that the courts need to set a precedent over this whole issue of court-ordered suppression and the Internet and Clifton would be a nice high-profile target whose castigation would produce maximum effect. Unfortunately, I suspect that the case involving Jane Clifton is not a representative one. The real test needs to be whether linking to such information is legal or not.

Given that the Net now constitutes such a significant aspect of our business and recreational activities -- it's probably time for government to come out with a simple, easily understood guide to the law and new technology.

Surely, if such a plain English guide were available, people would be far less likely to break the law through ignorance and this would make those laws far more effective.

It could also help dispel the FUD currently being spread by the likes of the recording industry whose claims that burning CDs constitutes "theft" are clearly without any substance in law.

If such a resource were readily available online, I expect that most sensible ISPs would certainly link to it as part of their introductory package for new Net users. Hey -- that'd produce a lot of free advertising for whoever put in the time and effort to build such a resource wouldn't it?

Have your say.

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