The minister responsible for a controversial bill which would empower the Government to block websites says she’s open to changing the proposed law.
Jan Tinetti became Minister for Internal Affairs after the 2020 election and inherited the Films, Videos, and Publications Classification (Urgent Interim Classification of Publications and Prevention of Online Harm) Amendment Bill from her predecessor, New Zealand First’s Tracey Martin. Tinetti told Newsroom that she could have pulled the bill from the House but decided that other provisions within the legislation were urgent enough that it was worth progressing.
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“When I first came in as minister and took over this bill, I had the option of discharging the bill or seeing it through. Looking at the urgency around the other parts of the bill, I was quite convinced that it needed to go through to select committee,” she said.
“The filter area is [one] I absolutely anticipated would come through and be a big part of the discussions at select committee. I am very open to looking at further shaping the work around the filtering system and hearing what’s been said.”
Labour was the only party to support the legislation at its first reading, with every other party voting against the bill.
The amendments to the FVPCA, which originally created a classification system and the office of the Chief Censor in 1993, are intended to modernise New Zealand’s content regulation legislation. The legislation is also a response to the March 15 terror attack and weaknesses in the regulatory regime that the mosque shootings revealed.
The bill would make it illegal to livestream objectionable content – a legal term referring to something that “describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty, or violence in such a manner that the availability of the publication is likely to be injurious to the public good”, with exceptions for public interest content. It would also allow the Chief Censor to make interim classifications in times of crisis and allow the Government to issue takedown notices for breaches of the Chief Censor’s decisions.
However, the most controversial parts of the bill deal with internet filtering – blocking access to websites.
“The Department of Internal Affairs may operate an electronic system to prevent access by the public to objectionable online publications,” the bill states. The system may “prevent access by the public to a particular online publication” or “the website, a part of the website, the online application, or similar on which an [objectionable] online publication […] is accessible”.
Before launching any filter, the DIA must consult Internet Service Providers (ISPs), “technical experts and online content hosts to the extent the Secretary thinks necessary” and the public.
There are few other limits on the filtering power in the bill itself. While the legislation states “when deciding on the design and form of the system, the Secretary [of Internal Affairs] must consider”, among other things, “the need to balance […] any likely impact on public access to non-objectionable online publications; and the protection of the public from harm from objectionable online publications”. However, it then notes this “needs be considered only to the extent that it is relevant in the Secretary’s view”.
As it stands, the Government only operates one internet filter, the Digital Child Exploitation Filtering Service (DCEFS), which blocks access to a number of sources of child sexual exploitation material. A Cabinet paper on the legislation indicated that the DCEFS would likely be brought within this new legal framework. The DCEFS is voluntary for participation by ISPs but the Cabinet paper made clear that mandatory filters could also be created under the new framework.
Newsroom first reported in October that the Government was exploring the possibility of a filter for violent extremist content and the revelations in January the Government was going ahead with such an idea sparked a clash between civil society and Internet Service Providers (ISPs) anxious to be relieved of the burden of having to choose what content to block and what to let through.
Since the March 15 terror attack, ISPs have repeatedly asked the Government to create a framework for ordering the blocking or filtering of websites. In the immediate aftermath of the attack, ISPs butted heads with DIA officials who wanted content blocked but didn’t have the statutory authority to demand that.
The list of URLs to be blocked was hosted on a Google spreadsheet and on at least one occasion, an email full of website addresses for censoring was deleted by an email spam filter.
Despite the requests from ISPs for some Government direction on filtering, critics of the new legislation say it is far too broad and has no safeguards for civil liberties.
When the bill was debated ahead of its first reading, speakers from the National Party and the Māori Party pointed to the potential for public interest objectionable content – like the footage of the killing of George Floyd by a Minneapolis police officer – to be censored.
“What would happen in New Zealand? Would it be taken down and actually stop a movement that’s very powerful about justice for black people in the United States of America and, indeed, around the world?” Simon Bridges asked.
“I too agree with the member Simon Bridges around the ability for the public to bring to the fore issues like the George Floyd killing by the police in America and the Black Lives Matter movement that came out of that,” Te Paati Māori co-leader Rawiri Waititi agreed.
Waititi also warned that footage of uplifts by Oranga Tamariki, like that captured by Newsroom’s Melanie Reid in 2019, could be blocked under the new law.
Representatives of both the Green Party and the ACT Party similarly opposed the legislation on free expression grounds.
“We don’t know how a future Government might use the power to set up an internet filter on what people can access online. It would be right and proper for this Parliament to say that this legislation won’t be effective at getting into the really dark corners of the internet, which are the ones that we should be most worried about,” ACT’s David Seymour said.
“On paper, 90 percent of the legislation is absolutely something that we would agree with,” Green MP Chlöe Swarbrick told Newsroom. “But the 10 percent in the legislation which is quite concerning is that filter. The powers that that filter provides are incredibly disconcerting. When it comes to the web filter, you basically are using a really blunt tool to not achieve all that much. The people who want to see this content will be able to do so.”
Select committee could change bill
Now past its first reading, the bill will go to the Governance and Administration Select Committee for further consideration.
“In this term of Parliament, pretty much all of the select committees have an outright Labour majority on them. With them also having, obviously, an outright majority in Parliament, we need to be incredibly careful that that doesn’t just become a farcical opportunity to waive things through,” Swarbrick said.
“I do think that there is an intention to do the right thing here, so I absolutely remain optimistic that there will be changes and I hope that they will be significant, particularly when it comes to the filter.”
Seymour was less optimistic.
“It’s really difficult to know what’s in the mind of the Government on this stuff,” he told Newsroom.
“My view, and that’s cynical, is that as often happens, they do the comms really well. So the Christchurch Call and meeting with Macron was really good optics from a political point of view. But then they’ve got to figure out some substance,” he said.
“The idea that you’re going to be able to filter the internet with as little restraint as this bill proposes, it’s not necessary to satisfy those conditions. So why wouldn’t they drop it? We’ll certainly be arguing they should. We’re in an era with MMP temporarily suspended and only they can really answer that.”
Tinetti said that she was open to any changes that the select committee decided would be necessary.
“I’m now listening to people that do see it as a bit controversial. That’s why I’m going into it with an open mind of what the select committee actually comes up with,” she said.
“I’m really open to this and I’m open to listening to the discussions. I really hope – and will be talking to all members around that – that they do do a lot of work and do due process and due diligence over this piece of work because I know that there’s a little bit of anxiety around this particular part and I want to see what people have to say.”