UN: Internet termination breaches human rights

One of the main reasons the Green Party opposed the new controversial file-sharing law passed under urgency was that it still contained internet termination as a potential remedy. I argued at the time it was disproportionate, wouldn’t work, and took away a modern human right. More and more of our democracy, interaction with Government departments, business and social life occur online.

Now the UN Special Rapporteur on the right to freedom of expression has declared such laws to be a breach of human rights.

The report says: “The Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.”

As recent research from Germany shows, Increasing availability of digital content shows that one can combat internet piracy without infringing basic rights, and was sadly lacking in this or the last Government’s approach to illegal file-sharing.

I think it is a little rich, Labour, who voted in favour of this Bill are now calling for a complete review of our copyright laws after this report.

To be clear, the Minister of Communications still hasn’t acted the termination clause but this report should, along with all the other reasons give him a clear steer to not enact this provision.

I call on the Minister to now ‘terminate’ potential internet termination from our law books.

29 Comments Posted

  1. I said that copyright violation isn’t stealing. I didn’t say that it wasn’t a crime, and I explicitly did say that the owner may lose potential revenue.

    In photonz1’s cases, how did the perpetrators get hold of the images that were copied? If they downloaded them off a web site, then photonz1 could not have had reasonable cause to believe that copies didn’t exist. If they had been copied directly off photonz1’s own computers or media, then that would be akin to violating a trade secret, and photonz1 would presumably have had a chance of identifying the perpetrator(s). It is really a more serious crime, as it involves either a direct dishonesty (e.g. trespass or theft as a servant) or a violation of trust, and it often occurs before the owner of the material has a chance to make money from the material – as in photonz1’s cases. And ofthen the perpetrator seeks to make some of that money for themselves. Copying something that is already being sold is dishonest, but isn’t as serious.


  2. Trevor29 says “Copyright violation is not “theft” or “stealing” as the original work is still where the owner left it before the violation, which is not the case after theft or stealing.”

    The current penalties under the Copyright Act 1994 are up to 3 months imprisonment and fines up to $5000 and $50,000 depending on circumstances.

    Breach of copyright can often have worse consequences than theft. We’ve lost thousands of dollars in sales to clients because we couldn’t guarantee them exclusive use of an image as it had been illegally copied and distributed.

    In another case we had a client using an image on a cover of a book and illegal copies of the image turned up elsewhere. We’d guaranteed their exclusive use and if the infringing use couldn’t be stopped they were going to reprint (at over $100,000) and it would probably be decided in the courts who would pay (possibly us, who would then have to get the money off the infringer – if they had any).

    In that case we fortunately managed to get infringing copies pulled, but it doesn’t always work out that way.

    In other cases we’ve had people take our images for personal use on websites, flikr, etc. They think they’re not causing any harm but they have no copyright protection on them and they are then taken by a third party who uses them illegally and has a good defence as they had no copyright warnings.

    This is where people thinking “it’s not really stealing” can become part of big money legal action because they’ve taken an image then done nothing to stop others to use it illegally. As the original infringers, they can become responsible for what others do.

    And it’s absurd to call an internet connection a human right. If you commit a crime and can lose your car, your boat, your fishing gear, your phone, and even your freedom, and that’s not considered a breach of human rights, then losing your internet comnnection certainly isn’t.

  3. I have to agree with Curmudgeon that Internet access is not a right. Even if it is a right, if I have my connection cut off it is trivial to get reconnected; for example go to any free wifi zone, an Internet cafe, or get another family member to sign up.

    And those arguing that copyright infringement is wrong, are correct. Either pay for the copyrighted material, or get legally available free material. For example, if you cannot afford to buy music, listen to it on the radio. Another example is there is plenty of free software available which often does a better job than copyrighted software and so on.

  4. Copyright violation is not “theft” or “stealing” as the original work is still where the owner left it before the violation, which is not the case after theft or stealing. The owner still has the use of their work, although I agree that they may lose potential revenue.

    Net access is becoming more important as more businesses, government departments and other organisations communicate through the net, and as such is becoming an increasingly important right. This is reinforced by the move of these institutions away from other forms of access, such as reducing the numbers of branches, charging for personal contact (e.g. by phone), not including printed manuals or avoiding printed forms.

    Preventing people from using the net is not akin to forbidding them from driving – it is closer to forbidding people to use the roads at all unless they are in a vehicle driven by someone else, i.e. no walking, no cycling, no riding,…


  5. To argue that net-access is a human right is absurd, and suggest that:
    – before the net was developed we had no human rights
    – the devlopers of the net are on a par with Ghandi, Martin Luther King, and the Enlightenment
    – any restirction on mining for silicon or generating electricty (which are of course essential for the net to operate) is an attack on human rights

  6. SPC: Before I go into detail, at the moment there is no internet loss sanction; its in the legislation but inactive. But lets assume that it is active, as doubtless it will be one day.

    Yes, the Filesharing law specifically allows companies (and libraries, and educational establishments, and presumably, government) to lose internet access for misuse of their accounts. To quote the Select Committee commentry from the Bill (emphasis added):

    …we considered whether an exemption or defence from the remedy of suspension should be available to some account holders, such as libraries and universities, on the grounds that they cannot control all those who use their account. We do not favour exemptions, and consider that the onus should be on all account holders to take measures to ensure that infringing file sharing does not occur on their accounts.

    The Filesharing parts of the Copyright act do not allow “conviction” in any context.

    There is a requirement that the party instigating the complaint has to have a New Zealand presence, as they are required to have a physical address in New Zealand, and to be responsive to documents served within a specific timeframe.

  7. Does the law allow a company to lose internet access? Or allow people or companies to be convicted for intellectual property theft within New Zealand let alone across national borders because of our legislation (without conviction where is the criminal). If so one would imagine companies (and individuals) would use another account for the illegal download etc.

    The legislation appears to be of an international design to establish the condition of no illegal downloads for personal internet access – if people want protection (for themselves and their company) from local or international property theft they need some other means.

  8. Yeah Photo, I should have been more careful with my terminology; and been specific about “infinging filesharing”.

    But with the new S122A, you’ll be able to go after these folks yourself, if its downlaodable somewhere.

  9. dbuckley says “SPC – Firstly, copyright infringers are not “criminals”, as copywright infringment is not criminal law.”

    Actually, breach of copyright under the Copyright Act 1994 is in fact a criminal offence – prosecutable by up to three months in prison and $5000 fine per ofence up to a maximum of $50,000.

    The problem is, although it is a criminal offence, the police refuse to treat it as such.

    I’ve had large companies blatantly rip off my copyright, and continue to do so depsite being told they are breaking the law. After provding full documentary and photographic evidence, the police won’t prosecute.

    They say to take a civil case. And most artists, writers, photographers, web and graphic designers, are not going to have $30,000+ to take a company to civil proceedings.

    And we still have polititians completely ignoring this side of the arguement and doing nothing about creative New Zealanders being ripped off by big companies.

  10. Again, MikeM, “accusation” – there is no accusation. No-one is “accused” (even using the term liberally) of infringing activity. A report of infringing activity is forwarded to the Account Holder, who is responsible for the activities undertaken on that account. No more, no less.

    There is no suggestion that it was the Account Holder themselves that undertook the infringing file sharing, but they are responsible for that activity that took place on their account.

    Noone knows what the punishment will be yet (only that its not disconnection – yet), and thus how disproportionate or otherwise it will be.

    The discussion document on regulations concerning the Act closed recently, and the paper included questions about sizes of award, their methods of determination, and what the deterrent contribution should be; I hope you put in a submission!

  11. @dbuckley, I said that that’s what the issue is. I’m not a lawyer and I’ll accept that you’re right in saying that at the very least it may be incorrect to say ‘guilt’ upon accusation. It’d be more correct to say that it’s more about arguably disproportionate punishment being bluntly imposed upon accusation by copyright holders.

  12. MikeM rightly notes that copyright infringment is not stealing; stealing is a crime involving being accused, found guilty or not guilty, and if guilty, it is punishable by fines, jail time, and a criminal record. Copyright infringment has none of those attributes.

    So MikeM, why do you then continue to misrepresent the lie that one can be “presumed guilty upon merely being accused” – there is no guilt (or innocence, or any of the other trappings of criminal law) and indeed not even an “accusal”.

  13. Hi @Jonathan. I realise (from your website) that you live in Florida and might be new to the NZ copyright law changes. The controversy is not about enforcing copyright infringement, or weather it’s right or wrong. It’s weather the means being proposed to enforce it are unfair on the grounds that they allows people to be automatically presumed guilty upon merely being accused, and weather the punishment is disproportionate to the crime and would actually have a meaningful effect.

    Oh, and (for everyone who keeps saying it is), copyright infringement is not stealing. Copyright has always been an artificial legal construct that only exists in law because people once decided it’d be a good idea to provide a bigger incentive for artistic people to create stuff by giving a temporary monopoly on reproducing their creations before everyone gets to enjoy and build on them again, and there’s an important reason why it’s temporary. If it weren’t for that decision then reproducing stuff other people had made available would be completely normal and expected, as it used to be. Infringement might be depriving you of income if people would have paid for it otherwise, and there are good reasons to enforce it, but it’s definitely not stealing.

  14. SPC – Firstly, copyright infringers are not “criminals”, as copywright infringment is not criminal law.

    Secondly, as the law stands today it is generally very expensive and difficult to identify someone who is doing what the infringing filesharing bill covers, but all that will change 1st Sept. A photograph posted on a website will indeed (in my opinion, which is valid until tested by the courts) be covered by the Bill.

    And your comment has just made me realise (for the first time!) that I am a rights holder too, and I’ll be able to persue people. Ha! I’ve been working with this legislation since 92A was first mooted and never put 2 + 2 together – I am a rights holder. Wow…

  15. With respect Gareth, ‘Uman Rights galloped over the horizon some time ago now (part of the NWO).

  16. dbuckley

    Can photonaz identify the criminals concerned and show that they can be ever be convicted as criminals if identified?

  17. How can you support robbery? Stealing another person’s property is simply wrong.

    Whenever someone downloads one of my books from an illegal internet site instead of buying that book, I am being robbed. Those that promote that robbery by running illegal file-sharing sites should certainly have their domain names revoked – and then be arrested for grand larceny.

  18. And finally, to Gareth’s point; Firstly, the article linked to begins “A UN human rights expert…”; which categorizes what the report is, even though the individual concerned is a UN Special Rapporteur, which Wikipedia reminds us his job function is to “examine, monitor, advise and publicly report”.

    That is rather different to the UN making internet access a Human Right, for which it would need to be listed in an Article.

    Big gap.

    And I dont think it will get that far, on the basis of the Freedom of Expression Article. The Article guarantees you the right to (in effect) hold and express your opinions, but as sucessive Yankee judges have noted, and they put it better than I would, Freedom of speech does not encompass a right to be heard. So as an example, you can have a nice poster espousing some view, but that does not confer the right to stick said poster up on someone’s wall.

    A better argument would be that The State wants to do more of its business online, and thus internet is a requirement to be a participating citizen.

  19. SPC

    Yeah your evidence is overwhelming … the personal anecdote

    Well, I’ll back up Photo here by encouraging you do your own research: do a google image search for Rangiora Town Hall, and note there are many instances of a pretty picture of the Town Hall, resplendent in the duller purple. The image is available under a creative commons licence requiring no more than attribution.

    See how much attribution of my image you can find.

  20. Brenda:

    The bigger problem is being required to prove your innocence.

    Thats bullshit. Popular and commonly spouted bullshit, I grant you, but bullshit none-the-less.

    Copyright violation is a civil matter, and therefore there is no innocent, no guilty, no fines, no jail, and no criminal record.

  21. SPC spouts B/S “And that companies likely to steal our stuff are in countries where this law does not apply ”

    All the companies I know who have ripped off me and other creatives are in NZ and Aus – you clearly have no idea of what you are talking about.

    It disgusts me that people like you stick up for the criminals that rip off other kiwis.

  22. Gareth – all sort of human rights are taken away – the “right” to drive, even your car, and the right to freedom.

    If someone uses their car to commit a crime we take it away, it they use a cellphone, we take it away – we also take away their freedom – so whats the big deal about taking away something much less – an internet connection? (if they are using it to commit crimes).

    Or are you backing the rights of big business to screw kiwi creative people and rip them off with no consequences?

  23. Can you name one procedure available to New Zealand to enforce this law on another countries companies not party to this … say China?

  24. I suspect that photonaz knows that the laws are an idea imposed on New Zealand from offshore.

    And that companies likely to steal our stuff are in countries where this law does not apply and thus offers our companies no protection whatsover.

  25. Gareth – I. along with most creatives I know, have a porblem with companies stealing out IP. You seem to want to make it easier for international companies to illegally steal the property of NZ creative individuals.

    What do you propose to do to make it harder – not easier – for international companies to steal the property of NZ creatives?

  26. “I think it is a little rich, Labour, who voted in favour of this Bill are now calling for a complete review of our copyright laws after this report.”

    As several people on Red Alert have pointed out, Labour didn’t just support the Bill — it passed something even worse when it was in power in the face of at least as much protest. In Clare Curran’s defence, she only entered parliament in 2008 so wasn’t part of that initial vote. Good on her at least for joining the crowd, even if it’s a little late!

    Gareth would probably have a better perspective but I think what we’re seeing is a party politics culture where MPs are either conditioned to vote as they’re told, often without being too clear about what they’re voting on, and/or the upper ranks of the party (Ministers etc) who develop policy aren’t properly listening to what the party’s MPs want.

    Personally I think we should be re-developing IP laws, particularly copyright, from first principles and going back to the minimum restrictions actually needed to motivate people to produce stuff whilst still having it actually enter the public domain for others to build new works on within a time frame people can realistically wait for. Presently copyright works to encourage rights owners to think that it may as well last for ever, and they’re sometimes shocked and very angry upon discovering it doesn’t. But I don’t think there’d be a chance in hell of that happening in the face of some enormous international copyright treaties, and seriously major international business interests that want to be able to control anything and everything they produce (or purchase) forever, as if they can own people’s speech.

  27. The bigger problem is being required to prove your innocence. How does the falsely accused price they didn’t do something?

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