Consumers, internet and courts in clash

OPINION: The seven deadly sins have provided a pretty useful guide to making money from the internet. Envy has been a big driver to most of the big car websites, while wrath is a key component to much of the blogosphere.

Meanwhile, lust saw pornography take an early lead in operating profitable online businesses. More recently greed spurred the rise of online gambling websites, with poker being the firm favourite of the addicted. Clearly not everyone is happy with the cardinal vices being so explicitly targeted, particularly not in a country which has legislated against certain things being advertised including offshore gambling.

As a result, the Department of Internal Affairs unleashed its legal hounds when TV3 and C4 ran advertisements for an overseas poker website. The judgment Judge Harvey delivered two weeks ago was interesting not just for its findings, but for the delivery. It proved Marshall McCluhan right, the medium is the message.

Because the advertisements were for a play site, rather than a pay site, Harvey found they were not promoting gambling. Equally notable was that he delivered his findings via a variety of digital media including hyperlinks, embedded video, YouTube, CD and text. Certainly it was a salient reminder that the printed word and law do not (and have not) enjoyed a necessary relationship.

In the past five years New Zealand has moved a long way in digital jurisdiction. Back in 2003, Section 249 of the Crimes Act - accessing a computer for a dishonest purpose causing loss - came into effect. This significant law increased available sentencing to five to seven years (up from the two years that comes with fraud).

Meanwhile, a grass roots internet blackout protest among the local digerati stopped a "guilt by association" clause within section 92A of the Copyright Amendment Bill. A much more reasonable bill appears in front of Parliament's commerce select committee this week.

Around the time of the blackout campaign, Judge Harvey got the attention of lawyers and media companies by creating an internet-only name suppression for two people being tried for murder. While he knew such a move would be overturned, he was successful in getting people to think about how many of our values derive from technological assumptions.

Simply put, Google's ability to kill practical obscurity with searchability, indexation, preservation and retrieval fundamentally changes the game.

Much of New Zealand's internet law is consumer-based, and is first developed in our humblest court, the Disputes Tribunal. Here the honouring of online contracts and the balancing of privacy with pragmatism is presided over on a weekly basis. The good news for punters is that the tribunal has an online database of decisions, meaning you can easily search decisions similar to your particular situation on www.justice.govt.nz. Nice.

Against this landscape of solid progress, there remain occasional pockets of old school. It wasn't that long ago another judge described e-commerce as "a mixture of Alice in Wonderland and the Wild West". For those New Zealanders participating in the $3 billion of annual online commerce, these were not soothing words.

However, the biggest inconsistency in the current environment is the ongoing attempt to perpetuate name suppression of accused parties in the courts. This behaviour has its roots in a print-based world, where the trip from today's newspapers to tomorrow's fish and chip wrappers, and then to landfill is very short indeed.

Broadcast media challenged this, but it was a flaccid challenge and one limited to those few who could afford to run a TV or radio network. But this challenge was paltry compared with the net which has virtually zero real cost, and terrifying distribution ability. Here comment is no longer informed, republication is uncontrolled and there are no use- by dates. New Zealand courts are currently caught in the hyperspace between applying the value assumptions around print technology, while working in a new technology world. As a result, they seek to control the essentially uncontrollable and at first blush seem out of whack with Section 14 of the NZ Bill of Rights.

In the United States the First Amendment ensures that no law or agency will seek to prohibit freedom of speech. This means they avoid wasting time and money pursuing fruitless attempts to constrain things that cannot be constrained. Even if the local courts were successful in stifling all of the 10,000 odd blogs and message boards on domestic sites, they have zero chance of silencing the millions of offshore sites.

The original and most serious of the seven deadly sins is pride. And as we all know: Pride comes before a fall.

Mike "MOD" O'Donnell is an online exponent, professional director and failed motorcycle racer.

- © Fairfax NZ News