Wednesday, April 13, 2011

The return of guilt by accusation

The government is abusing urgency again, this time to ram through the final stages of the Copyright (Infringing File Sharing) Amendment Bill. The bill repeals the (never implemented) section 92A regime, which provided for guilt by accusation, and replaces it with a new regime providing for... guilt by accusation. An SOP from the government softens the language here a bit, so that an infringement notice now merely creates a presumption of guilt rather than being conclusive evidence of it, but that's not much better. it also makes little sense. As IP lawyer Rick Sherra points out, there's no logical connection between the ability to fill out a form correctly, and the material in it actually being true.

The Bill of Rights Act affirms that everyone has the right to natural justice. This law would deny that, replacing it with a stacked system biased in favour of the accuser. And when overseas experience [PDF] has shown that a high proportion of infringement notices are issued in bad faith, by people with no claim to hold copyright or even by businesses targeting their rivals, such a system is actively dangerous, and a recipe for injustice.

The bill also still provides for disconnection as a penalty, albeit with a delayed implementation. As I've argued before, this is a disproportionate penalty, and an active denial of citizenship, the electronic equivalent of cutting out our tongues.

Parliament should not be passing this law, and it especially should not be passing it in these circumstances, under urgency granted for a bill to rebuild Christchurch. Sadly, our government seems intent on compounding injustice with deceit.