92A Internet service provider must have policy for terminating accounts of repeat infringers (1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.
Ok. That makes sense. We have a copyright regime, which makes illegal to infringe copyright in some circumstances. Section 92A requires those who are partly complicit in breaches to honour and enforce those rules. Some might argue the Rule of Law requires the enforcement of the law. Does section 92A amount to guilt by accusation? Not really. It's not the most elegant drafting but it seems to me that the power to terminate can only properly be exercised where repeat infringement has been estalished. First, there is only the jurisdiction to terminate where copyright has been infringed unlawfully - if ISPs terminate where that is not the case, then they are exercising ultra vires this power. (And, it's likel that that relatively "hard-edged" judgement will be scrutinised carefully by any reviewing court or authority, if it got to that point.) Secondly, the section makes it clear that termination is only permissible "in appropriate circumstances". There's no flesh on that but it seems reasonable to expect that: (a) terminating where there is a genuinely disputed infringement clearly wouldn't be appropriate; (b) even if there has been repeat infringement, some compelling circumstances mean termination won't be the proper approach. (Those of us working in the state sector are used to terms like "appropriate" and "reasonable"; these terms allow for the flexible, case-by-case evaluation of circumstances, rather than the rigid application of fixed rules which often bring injustice.) And, a draft industry Code has been prepared. Amongst other things, it explicitly states that disputed breaches cannot form the basis of any of the 3 strikes (within 18 months) and you're out regime. It's legitimate, I think, to have regard to this when assessing the impact of the regime. Remember, we have regimes which are entirely self-regulatory (eg Press Council). Let's judge the regime holistically. As a drafting approach, I might have preferred that the Code be adopted in the form of binding regulations or that the Act itself provide some guiding principles about the reach and application of section 92A. But is the present law, as it is likely to be applied, a breach of people's human rights or due process rights? I'm not convinced it is. We're not dealing with the imposition of criminal sanctions. And the operation of the regime looks likely to be more circumscribed than the opponents suggest. Hence, I'm not blacked out. I reiterate my views are still in a state of genesis - and I'm open to persuasion. But from the research and thinking I'm done so far, I need some compelling arguments provided the other way. Oh. "Faux" protest? Why do I think that? It don't think this is really about the section 92A enforcement mechanism. I think the real cause for the complaint from the opponents is a fundamental atheism about copyright. They don't believe in copyright. I'm not a copyright guru. I'm happy to have the debate about whether those copyright concepts continue to be appropriate. But that's not the marquee message of this campaign. It's complaint is the about the method of enforcing those rules.