Online law changes needed – but checks and balances must apply

Changes to update the law for online content are required now – but need to be balanced with improved transparency of decision-making and access to rights of independent review, Chief Censor David Shanks said.

Mr Shanks heads the Classification Office Te Mana Whakaatu, the independent Crown entity responsible for classifying publications that may need to be restricted or banned. It has submitted on the Films, Videos, and Publications Classification (Urgent Interim Classification of Publications and Prevention of Online Harm) Amendment Bill.

“Viral, harmful online material challenges our current classification regulatory methods. The Christchurch massacre was a horrific wake-up call to how digital technology can be weaponised in new and devastating ways,” Mr Shanks said.

“Media regulation reform is needed as historically agreed approaches to regulating content hit up against fast developing digital technologies and the international reach of the internet.

“But any changes to the law also need to ensure continued transparency of decision-making and access to rights of independent review so the public can have trust in the process.

“We all want an Aotearoa that is free from harm, where abhorrent and illegal extremist and terrorist content online is dealt with quickly and appropriately and where rights to freedom of expression are limited only to the extent absolutely necessary in a free and democratic society.

“Any legislative endeavour to balance the need to protect people from harm while protecting their essential human rights and freedoms is exactly that – a balancing act. We have the opportunity now to update our laws in a way that builds trust and confidence while preparing for whatever challenge comes next,” Mr Shanks said.

Key points in the Classification Office submission:

• Electronic system “the filter”: The Classification Office supports the concept of a carefully applied filter but this should be provided for in primary legislation with much greater detail around how it is used, for what content, and with a clear review and appeal pathway.
• Take down notices: This power needs to be clear and prescribed but could be a useful tool. Any right of review or review pathway needs to be clearly outlined in the Bill.
• Urgent Interim Classification Assessment: The period for providing written decisions should be extended to 20 days for urgent, but final decisions. If this change is made the ‘urgent interim classification’ category may not be needed.

The Classification Office’s full written submission is here.

For media enquiries, please contact media@classificationoffice.govt.nz

Key points in Classification Office Submission

The Classification Office supports legislative updates for online content when balanced with transparency of decision-making and access to rights of independent review. Any reforms should support the principles and approach from the Christchurch Call and the recommendations from the Royal Commission of Inquiry into the Terrorist Attack on Christchurch Mosques, including collaboration with international partners, the technology sector, academics and NGOs with an effective strategy.

Take-down Notices

The Classification Office supports a clear and prescribed take down notice power for Department of Internal Affairs Inspectors, and recommends the Bill specify that when these are issued, additional baseline information is provided to the Chief Censor to provide oversight. The take-down power, alongside a well-defined filter provision, could provide an effective escalation when internet sites refuse to remove unquestionably objectionable content.

Additional and clearer explanation is required in the primary legislation specifying what the right of review is, and review pathways in situations where a take-down notice has been issued but no classification decision ever issued.

Electronic system “the filter”

The Classification Office supports the concept of a carefully applied filter to reduce harm to the New Zealand public. The filter applies not just to abhorrent and illegal extremist and terrorist content online but could potentially cover all objectionable material. This potentially very powerful tool should be provided for in primary legislation with detail of how it can be used, for what content, and with a clear review and appeal pathway.

Livestream offence and related clauses

The Classification Office supports clarification of livestreaming while noting the existing law already regulates sharing of livestreamed footage. Usually the Office will not be viewing an objectionable publication as it is streamed in real time, and therefore will be classifying and dealing with some form of digital copy (which would also serve to activate the offence provisions under the Films, Videos, and Publications Classification Act (FVPCA)).

The Office does not think that the proposed change would result in a meaningful increase in criminalising innocent individuals who inadvertently capture objectionable footage, given interpretation of the FVPCA as it stands. There is low likelihood that such inadvertent or legitimate bystander footage would have the promotional elements of objectionable publications, such as were contained in the March 15 terrorist attack livestream.

Urgent Interim Classification Assessment

The Classification Office recommends extending the time required to provide a final written classification decision to 20 days. With that change, the Office does not see a need to provide for interim assessments (which do allow for a 20 day period). If an interim assessment power is conferred, protocols should be put in place to avoid any risk that the power results in partly-informed decisions in the height of a crisis response. NB enforcement action does not require a classification decision to be completed first.