Hello NZNOG,

I am developing InternetNZ's submission to the Justice and Electoral Committee on the Harmful Digital Communications Bill. I'd like to ask this list for some feedback on one issue in the Bill, in particular.

Clause 15 of the Bill reads:

Technical advisers

(1)A District Court or the High Court, as the case may be, may appoint a technical adviser to assist it in considering and determining an application for an order under section 17 or any appeal under section 72 of the District Courts Act 1947.
(2)The duties of a technical adviser are—
- (a)to sit with the court; and
- (b)subject to subsection (3), to act in all respects as an extra member of the court.
(3)The court must appoint a technical adviser if the court is considering an application for an order under section 17(2)(a) or (b) or (3)(a).

(4)The Judge may give any weight to the technical adviser's advice that the Judge thinks fit, and the Judge alone must determine the application or appeal.

(5)The Minister must maintain a panel of persons who may be appointed under this section as technical advisers, and only persons named on the panel may be appointed under this section as technical advisers.

(6)The chief executive must pay technical advisers the remuneration and allowances determined from time to time by the Minister.

For reference, the remedies referred to in cl 15(3) are: takedown of content/disabling access thereto; identification of an anonymous author; and, somewhat strangely, making an order against parties not before the court.

What I am after in the first instance relates to the advice of the technical advisor.

If the advisor were to issue a report of some sort to the judge, explaining the impact - economic, administrative, technical - of a takedown order on the intermediary, what do you think that advice should cover?

How can this advice, if it were published, serve as evidence for policymakers in the future, helping them avoid making remedies (takedown orders, etc) that are a burden to intermediaries or have a negative technical impact?

FWIW, I think that 17(2)(c) and (d) orders - publishing corrections and providing rights of reply - should also be considered in technical advice.

There are of course, many different flavours of intermediaries. The OECD has categorised intermediaries in the following way:

ISPs (carriers)
hosting providers
search engines
e-commerce intermediaries
Internet payment systems, and
participative web platforms

http://www.keepeek.com/Digital-Asset-Management/oecd/science-and-technology/the-role-of-internet-intermediaries-in-advancing-public-policy-objectives_9789264115644-en#page5

For the purposes of the Bill, we can consider intermediaries in two broad categories - content hosts and IPAPs (functionally - the IPAP language is not in the Bill, but I believe that IPAPs (meaning carriers in their IP-matching function) could be read into the current definition of "online content host" in the interpretation section).

Thanks to those interested for your time and consideration, and please pose questions if you have them. I'd be grateful for your feedback by COB Friday.

Sincerely,

Susan

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Susan Chalmers

Senior Policy Advisor

susan@internetnz.net.nz