New Zealand proposes "guilty until proven innocent" copyright law to punish accused infringers

New Zealand's three-strikes Internet law is back. Under this proposed copyright law, people who are accused without proof of multiple copyright infringements can eventually face disconnection from the Internet, along with their families. A substantively similar law was passed and then rescinded in 2009, after enormous public outcry. The parliamentary committee responsible for the legislation describes it as being based on the presumption of guilt (not innocence, as is customary in democratic societies).
Such fines would be levied by a Copyright Tribunal after a particular account holder racked up several notices, and these notices would adopt a "guilty until proven innocent" approach. As the committee report puts it, "an infringement notice establishes a presumption that infringement has occurred, but this would be open to rebuttal where an account holder had valid reasons, in which case a rights holder would have to satisfy the tribunal that the presumption was correct. We consider that such a change would fulfill more effectively the aim of having an efficient 'fast-track' system for copyright owners to obtain remedies for infringements."

It's hard to argue with the logic of speed here; creating a presumption of liability certainly will "fast-track" the process, though concerns about accuracy remain. As a New Zealand legal blogger noted this week, almost one-third of all New Zealand copyright litigation fails because rightsholders can't actually show they own the copyright and that the copyright is governed by New Zealand law. And Google has previously indicated that large percentages of the infringement claims it routinely receives are defective in some way.

InternetNZ, which runs the top-level .nz Internet domain, said in a statement that the new presumption of liability "reverses the burden of proof in the regime by saying that rights owners' notices will be considered conclusive evidence of infringement, with alleged infringers having to prove they have not done so. This reversal of proof is not a welcome development, and our initial view is that it should not be passed by Parliament."

New Zealand P2P proposal: guilty until proven innocent

(Image: Blackout, a Creative Commons Attribution (2.0) image from leighblackall's photostream)


  1. For clarity: the law as recommended won’t allow disconnection but does allow the Minister to introduce a disconnection penalty if someone convinces them the rest of the regime is not sufficient. And experience suggests this is likely to happen.

    There would be a manifest injustice consideration to this which might cover people like libraries, but they were specifically denied an actual exemption.

    The generally tech-savvy opposition maintains this was the best they could do.

    I encourage people to read the links in that article for more.

    My impression is things are still better than they were looking at the time of the blackout protest and the prospect of disconnection is quite a bit further down a fairer process. But still some glaring problems.

  2. How annoying is it that activists have to sustain a hobby of fighting this stuff, while the other side is prepared to keep throwing money at it till it eventually dies?

    The whole arts world here at the moment is srsly wonky and desperate.

  3. Looks like Warner Bros. had more than one law changed in the deal to keep The Hobbit in New Zealand. I don’t think the timing is a coincidence.

  4. Whooo i am so happy this is going through in new Zealand :)

    And i want three strikes based on accusations started up all over the world.

    Why? its simple heh money.

    You see this law lets copy right holders make accusations against you without proof. Now if if you yourself can prove that the accusations are false OR they can not show any substantial evidence then heh you can sue them for libel.

    Nothing in this law states that you can not sue for libel if the accusations are false. Sure you have to do it though an outside case away from this tribunal and no judge has the right or authority to stop you from suing someone on grounds of libel.

    And i bet there are plenty of solicitors who will go pro bono suing these copyright holders for you, if enough people get falsely accused or even accused but with no evidence then that solicitor will have a large case load to play with. Win with one easy cash the rest will get through as well.

    Heh now if the law gets changed again to make it impossible to sue someone who makes a copyright accusation though this tribunal then great that means political death for what every politician suggests changing the law to give copyright holders mainly companies immunity to the law and the same to the government who passes it.(Immunity for companies from the law is more impressive and enraging than the three strikes law in the eyes of the people)

    And if that immunity is granted Whooo everyone and i mean everyone make accusations against copyright holders. Bog down the system with false and even some genuine accusations your immune from been sued now heh

    Let the good times roll

    Step 1: Get accused of copyright infringement.
    Step 2: With no proof or no evidence counter sue for libel
    Step 3: Profit
    Step 4: Goto 1

  5. Prediction: Laws like this will, at some point in the future in some countries, be used selectively against certain groups of people. (Minorities, political activists, troublesome journalists, etc.)

  6. Why can’t we extend this obviously sensible law to other areas? After all, surely the onus should be on car owners to prove that they weren’t speeding or illegally parked (possession of a motor vehicle should be taken as prima facie evidence that they had the means and possibly the motive to commit the crime).

    Similarly, employees should be prepared to offer “valid reasons” to support their claim that they were paid by their employer for performing the activity described in their contract rather than, say, extortion or selling drugs. At tax time, everyone should be able to prove conclusively that they had declared all their income: an inability to demonstrate this to the satisfaction of the tax authorities would be taken as evidence of guilt.

    To prevent possible abuses, presumption of guilt would not be automatic, but would only be made following a complaint from a recognized and impartial authority. For instance, speeding fines for presumed infractions would not be issued unless a police department had first declared that they had grounds to believe that such an infraction had occurred. The department would not, however, be required to reveal their grounds for this belief, as knowledge of police procedure might assist criminals in breaking the law. Counter-assertions to the effect that, for example, the department was facing a budget shortfall and therefore had a material interest in levying bogus fines, will not be considered ‘valid reasons’.

  7. Glad to see that New Zealand is dumping that pesky tradition of English Law that has sustained us for centuries. I look forward to them getting rid of those antislavery laws too, they are anti-business you know.

  8. Weren’t there some legal scholars in the US who tried to make the case that doing this kind of thing essentially allows the companies to use the courts to enforce what is essentially a criminal law sanction, but without the protections offered by criminal proceedings? Did that go anywhere? I realize that the NZ system is different, but I am curious.

  9. Yeah, let’s throw the most important legal (and for that matter logical and scientific) maxim, namely

    “Ei incumbit probatio qui dicit, non qui negat.” Who claims is responsible for proving, not the one denying. The burden of proof is on the claimant. Extraordinary claims require…

    Just to make life easier for a certain party.

    Anon #9 had the right answer:

    “Let the good times roll

    Step 1: Get accused of copyright infringement.
    Step 2: With no proof or no evidence counter sue for libel
    Step 3: Profit
    Step 4: Goto 1″

    Sink these racketeers under litigation and damage money, I say! As soon as they make their first move, sink them. Nobody will miss them.

    Then,how to go after lawmakers who disregard basic rights, nay basic maxims of law? How to make sure they never get another elected office?

  10. Let me get this straight…

    If a case is marginal, it is thrown out or settled before going to court. Of the cases that are solid enough to be taken to court, one-third of them are not guilty.

    And they want to presume guilt anyways, against all modern concepts of justice?

    It’s like telling the police that if they see two criminals together they should shoot the nearest bystander on the odds that they may be a co-conspirator. Well, sorry about that, crime victim, but that’s what you get for hanging around criminals.

    The problem with anon #9 is that I would expect a law this evil to include a “you-can’t-sue-no-matter-what” provision.

    Corporate “rule” is so not straight as to closely resemble a fastener for wood in the shape of a conical helix

  11. I have actually written to the minister to protest this law, the response received stated that ‘innocent until proven guilty’ (as written in the NZ bill of Rights) only applies to criminal actions.

    The stated opinion by the minister was that the bill of rights and therefore innocent until proven guilty does not apply as this is a civil matter not a criminal one.

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