Judge scammed by a legal idiot and his pet pest

Written By: - Date published: 8:29 pm, December 8th, 2015 - 34 comments
Categories: blogs, internet, law - Tags: , ,

Thank the deity of your choice for that. Judge Harrison has found and courageously, in a timely manner, corrected his mistake.

courtorderdischarged

The problem for a judge being requested to give any injunctive order is that they only hear one side of the argument – that of the plaintiff. The judge only looks at the facts presented to them by the litigant and usually by way of their lawyer. Judges will use their own knowledge of the law, but this is brand new legislation that has been written in a rather convoluted and complicated fashion.

A judge looking at an application for an injunctive order relies on the obligation for ANY damages that the litigant undertakes when they seek an injunctive court order, and that their lawyer if they have one is a officer of the court and subject to some pretty severe sanctions in their professional life.

In this case it is now apparent that the facts being presented to him were completely false because Judge Harrison was led to believe by the author of the application that section 18 of Harmful Digital Communications Act 2015 was active.

I was up until 0330 last night trying to figure out what avenue there was that a district court judge could issue a interim court order against Pete George at YourNZ. There is a post now sitting on file that I stopped working on because I couldn’t figure a legal route between any application based on what has been alleged and a interim court order. I wrote this…

So in the unlikely event that Judge Harrison had made his decision under the HDCA, it is unlawful. But I doubt that he did. Unfortunately his decision gives no idea about what law he’d done it under, but it looks more likely that it was simply an interim court order based on the plaintiff saying that he was taking action under some other law. But what? I can’t see any that would fit!

I kept coming back to section 18 of the Harmful Digital Communications Act 2015. Which says :-

Interim orders

(1) A District Court may, if the court considers it is desirable to do so, grant any interim orders pending the determination of the application for orders under section 19.

(2) An interim order under this section may do anything that may be done by order under section 19 and expires when the application under that section is determined.

But that wasn’t a section that was in force, and won’t be until there is an Order in Council.

Even if it was in force, a district court judge could not use it on a proceeding brought by an individual if section 12(1) was in force:-

Threshold for proceedings

(1) An applicant referred to in section 11(1)(a), (b), or (c) may not apply for an order under section 18 or 19 in respect of a digital communication unless the Approved Agency has first received a complaint about the communication and had a reasonable opportunity to assess the complaint and decide what action (if any) to take.

Since no Approved Agency has been appointed by the Governor General, the following group of people wouldn’t be able to bring proceedings – section 11.

Who may bring proceedings

(1)Any of the following may apply to a District Court for an order under section 18 or 19:

(a)an individual (the affected individual) who alleges that he or she has suffered or will suffer harm as a result of a digital communication:

(b)a parent or guardian on behalf of the affected individual:

(c)the professional leader of a registered school or his or her delegate, if the affected individual is a student of that school and consents to the professional leader or delegate bringing the proceedings:

Press for larger version

The tags on the “press release” by Marc Spring. Note the author and the time that the PDF was made.

Quite simply Marc Spring, the plaintiff and internet pest shouldn’t have been able to apply for an interim court order. There is meant to be an agency knowledgeable in the way the internet operates1 filtering out whining nutters like Marc Spring and his advocate mate Dermot Nottingham from pestering online media without good reason.  Dermot Nottingham is well known2 as an “associate” and “advocate”  – but generally I just view him as a ignorant nutter.

I’m afraid that Judge Harrison was deliberately suckered by a application that would have been long on bullshit, very weak on legal understanding, and full of outright lying. Just like all of Dermot Nottingham’s documents presented to legal bodies that I have seen have been in the past3.

I suspect and hope that Dermot Nottingham wrote both the press release and  the application that the judge relied upon. Certainly the digital tags in the press release PDF point to him acting for or being an “associate” of Marc Spring.  And I will have fun investigating this, because the Lawyers and Conveyancers Act 2006 has some interesting things to say about people who do reserved areas of work on behalf of other people.

This gormless screwup couldn’t happen to more deserving scumbags.

I hope that Pete George seizes this opportunity to deal with them for the harm they have done to him and his reputation over recent days. Hopefully Judge Harrison will find a good use for his skills as well.

I hope that people in the legal profession have a close look at how completely destructive the HDCA is going to be. I also wrote this last night about one aspect of the decision.

Huh? I have no idea what a “full-time moderation” system is. Technically (as a programmer) they simply don’t exist. I don’t know of any organistaion exposed to the net outside of something like the NSA or DOD who are likely to have one.

Moderation systems are all human batch systems of one form or another. The ones that require the release of all comments are usually worse that ones that allow comments and then correct obnoxious behaviour. Simply swallowing offending comments without explanation doesn’t allow the culture of setting the expectations of social behaviour. In societal terms it is roughly the equivalent of bringing up children without providing any feedback about bad behaviour apart from a headman’s axe.

The social media systems that work operate exactly like a police and court system with a mixture of semi-automated and human systems. Police don’t even attempt to do full-time “moderation” of our culture – they just deal with the exceptions who operate outside the local rules. Moderation systems that are effective do exactly the same. That is why this site handles hundreds and often thousands of comments a day

Not to mention that clearing batches of 50-100 comments  at a time is a complete bore and you’d have to pay monkeys to be bothered to do it badly – which is what you see with the moderation on sites like NZ Herald. A dead and rather boring forum with no real dialogue.

To require any kind of  “full-time” moderation will require almost every social media site to shut down, especially those like facebook (no fulltime moderation), twitter (definitely no moderation), and probably all NZ blogs apart from No Right Turn (who doesn’t allow any comments). I can’t see how forcing that via the courts could be legal under the HDCA or any other act could be legal.

I see that David Farrar makes the same point.

But most of all, I hope that the judges, registrars, and their clerks take notice of why you don’t trust anything that has been near Dermot Nottingham or his associates.


  1. I expect the “Approved Agency” under the HDCA to be completely useless filled with people who neither understand that social networks that I have been using for more than three decades, nor the law that they are meant to be acting as a gatekeeper for. I also expect that it will take some time for me to convince the arrogant shithead monkeys that they employ just how profoundly ignorant they are. Just looking at the complaining fools that I have had to deal with as sysop of this site over the last 8 years makes me shudder for those people who will be expecting to deal with kids.
  2. See “The comical farce of Cameron Slater et al“.
  3. Just to give a taste have a read of this BSA judgement where Dermot Nottingham attacked Fair Go in 2004. Or this episode on Fair Go

34 comments on “Judge scammed by a legal idiot and his pet pest”

  1. mickysavage 1

    Your talents are almost wasted on programming.

  2. Ray 2

    The “Beagle Boys” strike again
    Note:One of the Nottinghams complained to the Police Authority that a policeman called them that

  3. ZTesh 3

    It’s interesting reading that kiwiblog link how disliked Cameron Slater is by both sides of the political spectrum. And some of the responses after he himself commentated were gold….

    “Dexter (473 comments) says:
    December 7th, 2015 at 11:37 pm
    “PG…most of what you have written about me isn’t true either, but you write your shit every single day.”

    Is this coming from the same man who wrote about Tania Billingsley and the Malaysian sex attacker claiming that,

    “The truth will be much closer to an existing relationship that was strained and where Muhammad Rizalman bin Ismail misunderstood his place within it.”

    So you told us it was the ‘truth’ that the victim of a sex assault was in a relationship with her attacker, which as it turns out was completely and utterly false and of course completely defamatory to her. Color me skeptical, but you don’t appear to be in a position to comment on what constitutes ‘truth’.

    But while we are at it, why didn’t you sue for defamation over claims made in Dirty Politics that you are a blogger for hire who sells his opinion to the highest bidder and that you were being paid through Katherine Rich to attack opponents of the food and beverage industry and others on your blog? Surely it wasn’t because those claims were true was it?

    “You edited and changed multiple comments but left the mad rants of Frankie alone…you encouraged her and her fixation and predatory behaviour towards me and my staff. Calling my home was the last straw.”

    So Pete crossed the line and is the villain because of a commentator on his site whose comments he didn’t edit out (ironic really given the mad and dangerous rants you leave up on your blog). Why didn’t you take the same moral high ground when another blogger attacked your wife and the woman you had an affair with, in an extremely disturbing and vitriolic fashion. P.S – Don’t click the link below unless you want to give them hits.

    http://www.donotlink.com/hkge

    [lprent: Replaced with a donotlink ]

  4. BLiP 5

    Top marks lprent for your efforts on this and, yep, good on the Judge for owning this judicial cock-up. Woe betide the likes of Marc Spring and Dermot Nottingham. Methinks this episode’s sequel will be far more appetising. Nom nom nom.

  5. Macro 6

    You have been very busy – I’m amazed!
    Even more stunned at the mentality of the perpetrators.
    You obviously will not have had time to follow up the Giltrap connection – were they aware how their system was being misused etc – that will be a even more interesting.
    Well done.

  6. Paul Campbell 7

    To be fair the judge asked for a rather more restricted form of moderation which could have been done by a filter that only put posts with the strings “Marc Spring” or “Giltrap” in them into moderation, or tossed them completely. I’ve read elsewhere that the oily one does exactly that to make sure that his flock are not exposed to ideas he doesn’t approve of.

    In general though I agree with you, it’s a slippery slope, this sort of thinking on the part of judges would likely lead to the full moderation you describe in time. We really should make people who post in blogs, rather than blog owners, responsible for their own speech. How you do this and still provide for anonymous speech is the difficult problem.

    • lprent 7.1

      I do it as well. But the words have tended to be things like “troll” “trole”, “Helengrad”, “nazi”, “hitler”, “somalia” and the like + current suppressed court cases that I happen to know about + signatures of people who are currently banned.

      Basically any word or phrase that gets over used, acts as a signature of someone trolling or astroturfing, causes us liability within the courts, or allows automatic removal of people who aren’t allowed to comment.

      But you notice how you have to include variants. For instance “Mark Spr1ng” is surprisingly easy to write

      That is the basic system for WordPress. One that Pete George knows about and has used. In fact everyone I know uses it who use WordPress.

      Clearly the court either weren’t told that or deemed it to be be not sufficient. I know that Marc Spring was aware that was in use. It appeared to me that he was one of the primary pests that it was used against.

      Pete George also post moderated in the same way we do here. He amended comments that were outside the bounds. Marc and his mate Dermot knew that – I have seen both of them have some of their aliases comments removed.

      WordPress also has a limited all comments must be approved and all comments must have first time approval. I am pretty sure that PG probably had the latter on.

      So what is left? Batch processing and release of comments isn’t fulltime (although it certainly feels like it)…..

      The closest that is around to full-time is like some of the systems that run in here to selectively keep out the pains in the workload. But they are fundamentally still manual. We moderate by hand.

      BTW: “To be fair” === “snarky” in my book.

      If the judge wanted to define what full-time moderator systems look like, then he needs to write a spec or have one written for him by someone who knows what they are talking about in running open blog or message systems. Otherwise he may as well have said “don’t allow comments”.

      • Paul Campbell 7.1.1

        Sorry, not meant to be snarky, and obviously I don’t run a blog … and I understand that moderation must be a thankless task, especially since the people you’re moderating are mostly likely people you disagree with, it would be easier to just ban them.

        The judge’s order did say “introduce a full time moderator system so that no comment is harmful to said persons is placed on your blog” – (I suspect the judge meant “moderation” rather than “moderator”), which is not the same as simply a full time moderation system. As I said above if we let things go down that slippery slope running a blog becomes an unmanageable task

        • lprent 7.1.1.1

          You have to work with the words as they apply in the judgement.

          After all, the first time you are likely to find out your re-interpretation is wrong is when you serve 30 days.

          What PG did was to put in a full-time batch moderation system. That was a interpretation of what was meant. It could have been as risky as commenter trying to tell me while acting as a moderator what I really meant was…. response is always an immediate BAN

    • Draco T Bastard 7.2

      How you do this and still provide for anonymous speech is the difficult problem.

      What makes you think that any speech on the internet is anonymous?

      I always work on the principle that everything I say on the net can be tracked and I’ve used the same handle for 15 years.

      • lprent 7.2.1

        So do I. After all it really isn’t that hard to track back most of the time. And if I can’t then I can just turn off access to things like tor or whatever.

        Since dad4justice, who I turned off all access from internet dialup modems for once, I have only had to do it to russia, ukraine and brazil and some server farms in the US. Spambots and injectorbots tend to piss me off.

      • Paul Campbell 7.2.2

        (You notice I post here under my own name, not something I do everywhere)

        Oh, I agree – I understand that TS could be supoenaed for my email address which of course points to my home mail server thru whois.

        But I think there are people who feel they can’t speak out without at least the feeling of anonymity, I wish that people could post genuinely anonymously, it’s one facet of privacy – the free use of encryption that John Key seems to be starting a campaign against (weirdly based on the use on unencrypted texts in the Paris attacks) is likely going to be part of how we do that if we can

        • lprent 7.2.2.1

          As you can see from the privacy policy we take it pretty seriously.

          You’ll notice that we don’t require a valid email and only use the email as a shared secret between the site and the commenter? People don’t have to provide any valid connection information. They don’t need logins to comment.

          Similarly the IP’s are carefully isolated from the main system and are booby trapped to discard any meaningful information. They are only meant to be used for the purposes of moderation and the identification of miscreants. Same systems for the logs.

          People can subpoena if they like. However they wind up having to pass through me as the gateway before they can get anything useful. Apart from anything else it’d be difficult to figure out how some of these parts connect and where the keys are.

          It isn’t perfect, but if someone wants something out of this system then they’d better have me onside if they want to get it or have someone very competent to figure out how it works. All I have to do is to not do anything…

          I’d prefer to cut myself away from the system, the system pass offshore and to some other sysop while we get the silly preemptive legal stuff reversed.

          The converse of that is that we also are strict on what behaviors people may do in our space. It really would not pay for anyone to do something that is in any way unlawful here. Their immediate worries wouldn’t be about external authorities.

          Of course we don’t (currently) provide any point to point connection protection. No encryption etc. That means that security organisations with sufficient access to the net can do what they need to do. But we provide considerable protection against arseholes with lawyers.

    • lprent 7.3

      We really should make people who post in blogs, rather than blog owners, responsible for their own speech. How you do this and still provide for anonymous speech is the difficult problem.

      I disagree. What needs to happen is that the owners and operators of message boards of every kind from Facebook to Twitter to blogs to Trademe need to be responsible for what is allowed on their sites. But that means that they also need to be responsible to moderating it to stay within legal bounds.

      You build a culture amongst your users about what is permissible. They will in turn convince others who write there. Free speech? You can always find another place to comment if you don’t like the local rules.

      But what they should also do is to advertise the arseholes to their network suppliers (like Giltrap in this case) and ask for them to be restrained for abusing your site if they insist on violating local moderation. You aren’t always going to get a good answer, so you go to their suppliers with the same complaint. When you are pushed with someone intransigent yo go to the police.

      This generally works in encouraging people to behave on the virtual property of others. People don’t like it? They are welcome to start their own sites and learn to love the trolls that visit them.

      The real problem the the HDCA is the safe harbour exemptions. There should be now need for them if places like facebook and twitter or even blogs were living up to their responsibilities. Since they don’t want to, they went for that ruleset instead.

      • MrMan 7.3.1

        I think you are wrong. The constant editing, censoring and banning that nervous NZ blog-hosts do is highly frustrating. It makes it very hard or impossible to follow some threads, even when they are happening – but especially older ones.
        You should be welcoming ‘safe harbour’, not looking at it as a problem.

        • lprent 7.3.1.1

          I know you are wrong. We tried it the other way back in 2007/8 – ie experimental evidence vs theory.

          If we let the comments go through without strong moderation, the average comment size dropped as soon as the idiots without anything substantive to say (ie trolls) got into the act. To less than twitter levels. Similarly the lexical complexity of the sentences dropped down to idiot level.

          You can’t have a debate at that level. What you have is a stupid pissing contest. It showed. Most of the better contributors stopped commenting, presumably because they stopped reading the comments. That was one of the main reasons that I think we had such a drop in readership after the 2008 election.

          We put exterior limits on behaviour into the site (ie moderation) early 2008 and spent several years of very hard moderation work to shift the culture of the site.

          By the end of 2010, there was a distinct change in the commenting behaviour to longer and better argued comments. It also meant that we started to get increasing numbers of women commenting and the gender and age distribution shifted from being largely late 20s to mid 30s males to having a much more even distribution. It is under represented in women. But we keep getting growth. Compared to 2012 (year after an election), this year we have increased our readership by about 50% and still seems to be growing far far faster than it did in the last term on a month on month basis. So I guess that more people like the site’s approach than you do.

          If you don’t like it, presumably because you are addicted to dick waving among your (retarded juvie) peers, then I suggest you find a fence to piss on somewhere else somewhere else. You are running out of places. Kiwiblog open forum? Trademe?, reddit? Even Whaleoil has cleaned up, and the real scum like inbred chat at LF moderate very heavily unless you agree with them.

          • MrMan 7.3.1.1.1

            “you are addicted to dick waving among your (retarded juvie) peers”

            Steady-on. Your place and all that, but ad hominems and assumptions?
            ( you’re wrong, and you seem to be taking things personally)

            I’m not talking about the cussing, I’m talking about the censoring of names and information, the replacing whole comments with [you can’t do that]. Under safe harbours this doesn’t need to happen, peoples comments become their own problem not yours, and the Grimm Brothers can’t take everyone to court. Largely, individual commentators don’t get taken to court.

            • lprent 7.3.1.1.1.1

              Running a blog you have years of dealing with the same daft, unrealistic and inane types of statements about how to run a reasonable sized blog. Invariably they amount to, this is how I’d like to run your blog if I don’t have to do the work of running it. I can’t see anything different in what you are saying.

              My general answer is at the bottom of the about. If you think something is better then get off your lazy arse and do it yourself.

              Just engage your brain for a few seconds rather than your ideology or whatever it is that makes you think that safe harbours is workable.

              As I pointed out, not moderating will make the blog comments section essentially unreadable. So we can’t stop doing that. If you had been thinking you would have picked that from my previous reply. However it seems to have somehow have escaped your attention. I guess it wasn’t was important as having a wee whine.

              Safe harbour would significantly increase our workload on top of what we have to do anyway. FFS: You are required to do everything within 96 hours. Handle the complaint within 48 hours and contact the comment author within 48 hours after that.

              Consider the very first pile of work that would be required on this site to implement safe harbours. It would require that we at least try to maintain a membership system so we could contact the author of comments complained about. Registration systems like that are expensive. The spammers and bots attack them all of the time, complete with valid throwaway email addresses. Which is why we discarded them. They accounted for about 40% of the attacks on the site before I did.

              It is implicit in the safe harbour requirements that you must have such systems before you can use safe harbour. I’d expect that there will be some court cases where people have had comments removed under the HDCA and take action against the site who removed them because the site failed to follow the process of being able to contact a comment author. Hell, I’d be happy to set up such tests purely to get that point resolved since the legislation didn’t.

              We’d still have to maintain ALL of our existing first time systems anyway to keep the site quality up because no automatic or even semi-automatic system is going to stop spammers. Nett effect. A increase in workload – no benefit apart from safe harbour.

              Consider the second thing, that someone would have to be contactable and have the time to deal with the complaint within the time frame of the act.

              But this is a fully voluntary site where pretty much all of the moderators and authors work long and hard outside of the site. It is also run on no money. Being able to ensure that such a complaint is handled would require that many people are available to cover it and are capable of handling it. Especially the piss-poor way that the Act was written. It is designed to cause work. But the safe harbour system virtually demands that you have a full-time person able to handle such a demand on demand.

              We have to within a 96 hour period be able to in the full case s24(2)
              1. receive a complaint
              2. send something to the author
              3. receive something from the author.
              4. send the response to the complainant
              5. receive something from the complainant
              6. take the comment down

              Drop out sleep time (a third) and work time (a third), then we are down to a third of 96 hours. This is the time when it has to compete with time to eat dinner, play with kids, have family time, walk the dog, as well as all of the EXISTING tasks we do on a blog. And it assumes that both the complainant and the comment author do everything right. And they virtually never do…

              Over the years, we have had complaints. Not that many, usually a few per year.

              You notice s24 of the act doesn’t say who the complaint is from. That means that the complainant is going to make it – not the approved agency. The legislation sucked on that point. They threw the entire additional workload of validating the complaint on to the site operators. They should have thrown it on the approved agency who could spend the time to make sure that the damn complainant fufilled the conditions of the act.

              You know the first problem with complainants? In my experience they can’t read, they can’t take a link, they can’t copy-n-paste, and they seem to think that they don’t have to supply a reason for something to be removed.

              Nor does the act provide a legal way for me to restrict the channel that the complainant is made. It could come through email, as a comment in the site, someone phoning me, someone getting someone else to contact me, or last of all – any form that I put up on site or each comment. So most of the time the complainant will not have provided enough information to find the site or to determine what their complaint is.

              To find a comment amongst the million plus of comments and more than 17 thousand posts, we need to be able to identify it. The ideal way is to provide a link to it. The link to EVERY comment and post is in the date. Each post has the link in your browser. About a half of the complaints that I have received in the last 8 years has managed to provide a link to the offending item. Of the ones that don’t, more than half haven’t managed to provide the handle of the comment author or text in the comment.

              75% of all complaints don’t actually state a reason, let alone a valid reason now. Most complaints (especially for lawyers) tends to be of the form that says “I find a comment about me/my client made on your site is offensive. Remove it immediately or we will sue.”. If you are lucky you will get something that says “The comment made about me/my client by [author] saying [quoted sentence] is offensive remove it immediately”.

              The curious thing is that virtually all valid complaints provide the required information but very few of the other ones did. To judge I need to know

              1. A link, or a post and date/time.
              2. The text that they disliked and/or exactly what they disliked about it and/or any legal reason.
              3. What interest the complainant has in whatever they are complaining about. If someone says that someone else was convicted of fraud, then only that someone else can really complain.

              The set in the Act is in S24(3)
              A notice of complaint must—
              (a) state the complainant’s name and a telephone number, a physical address, and an email address for the complainant; and
              (b) state the specific content, and explain why the complainant considers that the specific content—
              (i) is unlawful; or
              (ii) breaches 1 or more communication principles and has caused harm; and
              (c) sufficiently enable the specific content to be readily located; and
              (d) state whether the complainant consents to personal information that identifies the complainant being released to the author; and
              (e) contain any other information that the complainant considers relevant.

              My personal bet is that most of the complainants under the HDCA won’t even mention that they are complaining under the provisions of the HDCA and therefore what rules we are meant to be following. FFS even lawyers usually don’t bother to say what Act they think we are liable under 🙂 – for tactical reasons.

              The probability that the vast majority of the complainants will fulfil the requirements of the Act is virtually zero.

              The usual thing that I get about this point from the usual lazy thoughtless critics (like you) is to use all those volunteers. But it is a hard thing to do. we don’t have the skill sets, the time, or the required levels of coordination.

              It usually takes years before authors manage to graduate to being comfortable and skilled with moderating. They don’t really have time to learn this crap that our stupid parliamentarians want us to do for them. They are also expending what available time that they have on doing the things that the site needs now.

              Moreover to use more than one person on this requires that we coordinate our ‘spare’ time. Since we don’t do that now, it involves a whole new layer of coordination that isn’t going to happen. We cooperate to run this site, we aren’t an organisation… And we sure as hell don’t get paid to do this.

              —-

              Besides not doing safe harbour is such an easy alternative.

              As it happens right now on this site, complainants only have to satisfy a moderator or me that their complaint is justified. If it is justified then we will immediately deal with the problem and we are harsh as hell about it. If it isn’t then I laboriously explain what why we aren’t going to do anything about it.

              In an ideal world I will probably simply forward the answer I make to the complainant on ALL complaints to the “approved agency”. However s24(5) prevents me from doing that.

              So we fix the complaints that give us enough info and are legitimate. We give everyone else the flip with telling them their application failed to provide the right information or appeared to lack validity and tell them to go to the approved agency and not bug us directly again. We don’t provide our reasons.

              Then deal with the approved agency who just may be less of a pack of self-inflated nutters than the complainants.

              Since we agree with less than 5% of all of the complaints we have ever received, it just means a few times a year (after the initial nutty period is finished) I will probably have to explain my reasoning to the agency. In the period of the pent up nutters I will have to educate the agency.

              We don’t have to try to do the ridiculous pass through.

              And shortly we won’t have any information about comment authors, which makes any requests or court orders to real personal information moot. I’m going to remove all of it from the site and finish replacing everything with MD5 hashes. We can’t provide what we don’t collect.

              So what is left over is the argument about the actual comment content. So convince us that needs fixing. It seems just like what we do now without directly dealing with the complainant.

              —-

              Basically you didn’t haven’t bothered to think safe harbour through and nor did the idiots who put this act together. The MPs who voted for it have a system designed for businesses running online sites. For us it just adds work without improving the quality of the site (which requires active rather than reactive moderation) and demands we have someone full time available during work hours just in case someone makes a complaint.

              But I have to say that I really do despise unthinking fools like yourself….. Most of this is obvious.

              Safe Harbour only works if you wish to have a low quality forum. I’m sure that Cameron Slater is looking forward to it. being effectively unemployed and probably unemployable he will be able to dispense with moderation (except for that which criticises him). He will follow a minimum process to keep himself

              • MrMan

                “But I have to say that I really do despise unthinking fools like yourself….. Most of this is obvious”.

                Wow. What is obvious to you is not necessarily obvious to someone else. You’ve got more of a need to know the legislation than most people.

                Anyway, after the insults, the TL:DR is that you get hardly any complaints and you ignore most of them, and under the new law you’ll encrypt user info and tell the authorities to take a hike. Sounds like less work to me – you don’t have to moderate and censor posts to protect yourself anymore and you make your data un-sharable – (the work there may be defending a charge to set a precedent).

                • lprent

                  There is no requirement in NZ law that I know of for us to keep information to benefit others. We are not an ISP. We don’t generate revenue off anything that we do that would require us to keep records. Most sites keep that information to benefit themselves or because they don’t know how to clean it out. Since we don’t require anything from anyone else, we don’t need to retain it in a usable source form.

                  …and under the new law you’ll encrypt user info and tell the authorities to take a hike.

                  A MD5 or something like it hash isn’t even an encryption. It is a oneway and effectively not reversible. There are multiple possible outcomes if you try to reverse it. If a court wants to do a court order, we’d happily hand the hash over. But it is meaningless without knowing the source.

                  If they already know a IP or email then they can assign a probability that a hash was generated from it. But they cannot assign a certainty. Once we shift to IPV6 with its much longer addressing the the possible outcomes from a reversed hash get larger. A lack of certainty causes a whole pile of room for the someone prosecuted under it, especially when the prosecutors must show how they came to have the original source.

                  Now none of that precludes interception by the GCSB or police. But if they have that information already then there should be no need to get a court order.

                  Sounds like less work to me – you don’t have to moderate and censor posts to protect yourself anymore

                  Wrong. Reread my first comment again. We still have to do exactly the same amount of work as we do now. That is because we need to maintain the quality of our site.

                  …that you get hardly any complaints

                  Sounds like less work to me – you don’t have to moderate and censor posts to protect yourself anymore…

                  Because we moderate we hardly get any complaints. If we didn’t moderate we’d get a lot of complaints and a lot less readers.

                  Anyway, after the insults…

                  I like giving insults, especially when I explain basics. I find it deeply amusing looking at the predictable faux horror of mindless dickheads at “insults”. By providing an easily accessible excuse to avoid understanding what the other person is saying, it forces them into a non-diversionary pathway. Thereby distinguishing the sheep from the thinkers, because thinkers ignore insults and focus on the relevant content.

                  But I find that people with deeply held religious beliefs like libertarians and moonies will do seize any excuse to avoid understanding other peoples viewpoints and experiences.

                  In your case it is clear that you still haven’t read the first comment I made where I explained why we have to moderate. Your original point that we wouldn’t need to moderate if we have safe harbour is completely wrong-headed and outright stupid. We have to moderate, because to do otherwise would result in us having a shitpit of a comments section that is unreadable for anyone who didn’t have a mental age of a male juvenile who was still into the dickwaving phase. Since we really aren’t interested in the views of that rather self-adsorbed fraction of the population (including the concentration of them in the Act party), we moderate.

  7. Alan Wilkinson 8

    I agree entirely, Lynn, and came to the same conclusions myself when I looked at the Act so presumed the judge had acted under some other legislative provision.

    As for the culprits in this debacle, I certainly hope they get their just deserts. They have earned them.

    @Paul Campbell, no, the court order stated there must be a full time moderator, not an algorithm, and anything that is harmful to Spring, the Giltrap group or its associated companies must be blocked from publication. That could not be done by a simple scan for the names and even those could be tweaked to get around such a simple defence.

    • veutoviper 8.1

      <I agree entirely, Lynn, and came to the same conclusions myself when I looked at the Act so presumed the judge had acted under some other legislative provision.

      IMHO it appears that the Court (Deputy Registrar, Judge) have acted under, and applied, the standard District Court Rules in terms of procedure, including the issuing of the original interim order.

      http://www.legislation.govt.nz/regulation/public/2014/0179/latest/link.aspx?search=qs_act%40bill%40regulation%40deemedreg_District+Court+Rules_resel_25_h&p=1

      From a process perspective, the whole thing seems extremely sloppy. The original Order fails to state the legislation under which the the Order and complaint were made as required by Rules 5.14 and 5.15. It contains typos, omissions of words, misuse of commas (reminiscent of other writing samples of a certain Mr D N over the years). The filing of the complaint in Auckland instead of Dunedin appears to contravene Rule 5.1. and so on. Unfortunately the Rules also seem to contain soft remedies for such errors, eg Rules 1.8 and 1.12 and little in the way of redress for anyone disadvantaged by such errors. (Note: I see that PG on his blog questions the method of service of the original order. As discussed the other day on the original post by lprent, service by email is valid under Rule 6.1).

      These issues are minor in relation to the much bigger issues raised – eg the ordering of full on moderation (or a moderator) which are outside the provisions of the HDCA, and the stymieing of freedom of expression.

      But as a lifetime pedant, I needed to express my disgust at this sloppiness on the part of some within our justice system!

      On a brighter side, the events of the last few days seems to have come to the attention of some bright legal and other minds on Twitter such as Graeme Edgeler, Keith Ng etc, thereby sparking conversations on the overall consequences of the HDCA.

      • Tracey 8.1.1

        I suspect a law clerk in the Judge’s office just got a very very Real World lesson!

        Recently qualified lawyers (highest achieving law students who don’t chase the money at the biggest firms) choose to be Judge’s clerks.

        YIKES has been my tinking since it was stated the law was not yet in force.

        Registrar should abioslutely pick it up on receipt of docs before going to the Judge… but then the Clerk…

        • veutoviper 8.1.1.1

          LOL! Agreed, Tracey.

          I would not like to be that or those person(s). Judges do not like egg on their faces.

          Graeme Edgeler has been taking an interest and seeking the full documentation, so it is worth checking his Twitter account. A certain other Twitter account associated with the complainants is still tweeting threats etc. and apparently PG is still getting bad emails from that quarter, according to his posts etc on his blog site. So this is far from over.

          And I really thank LPrent for putting old differences aside and all his work to help unravel this mess.

          • One Anonymous Bloke 8.1.1.1.1

            I really thank LPrent for putting old differences aside and all his work to help unravel this mess.

            Plus one to that, although it can’t have been a very difficult decision to make: this is beyond odious.

  8. Ross 9

    “I hope that people in the legal profession have a close look at how completely destructive the HDCA is going to be.”

    I’m not convinced one way or another. As you say, an Approved Agency can only act after it has “received a complaint about the communication and had a reasonable opportunity to assess the complaint and decide what action (if any) to take.” I suspect many complaints will be frivolous or vexatious and therefore will be dismissed.

    Lawyer Steven Price has forcefully argued that the HDCA is needed, though he says:

    “…let’s be clear about what the Law Commission is expecting from its plan. It will not be a panacea. It will not be able to magic away most people’s digital beefs with each other. It may be stymied by digital harms originating overseas. Most of the tiffs between people (and I accept that those involved see them as mortal combat rather than tiffs) will not reach the threshold for the exercise of the tribunal’s powers. The people most likely to be disappointed by the tribunal, I expect, will be complainants. That is, most people will be disappointed that it does not stifle enough speech.” (his emphasis)

    http://www.medialawjournal.co.nz/?p=625
    http://www.medialawjournal.co.nz/?p=603
    http://www.medialawjournal.co.nz/?p=572
    http://www.medialawjournal.co.nz/?p=568

    • lprent 9.1

      The issue is going to be the quality of the people who are selected for the approved agency.

      I’m pretty sure that the MoJ is going to screw up that. They will continue to think that the bulk of the work will come from juveniles. But I suspect that will not be the case.

      Most of the complainants will be from the adult fringes or by people who think that what they think is ‘correct’ behaviour is what the law requires. Certainly EVERY instance I have seen so far of people straining at the leash for using the HDCA have been adults wanting to shut up critics of their behaviour.

      The Approved Agency requires people who know a lot about law, the infrastructure of the net, and the limits to operating forums on it. They will also have to have the respect of the operators of sites who have been operating in that space for decades.

      What we will get will be low price unskilled monkeys who are either going to be ineffective in getting changes or are just operational pests. After all they will be a lot easier to scam than the court system proved to be in this case.

      In the longer term Steven Price will be correct. But it will take a long time.

      It is going to take a lot of unpaid valuable time by the people operating in the net to batter the Approved Agency(ies) to the point that they don’t have to be led by the hand through the minefield of their own ignorance. Like all new organisations, the participants are likely to have an exalted opinion about what they can or cannot do and over/underestimate what they are permitted/required to do. The cottonwool legal protections in the Act for them are going to act as a buffer to them being able to learn in a more robust fashion.

      At present I’m uncertain of if I want to cooperate in their training, or if I just demonstrate the hard way on the limits of what they can do. However either way, I have been drafted by the state through legislation to perform it. That is quite irritating.

  9. Rich 11

    Occurs to be that Spring & co might have dodged a bullet here.

    Getting which sections of the HDCA are in force (none of them??) wrong can be reasonably argued as an honest error on their part and not actionable.

    The (alleged) fabrication of evidence would be more serious, except that because the law isn’t in force, the evidence becomes immaterial – which would mean they can’t be convicted of perjury, at least. (I think).

    • lprent 11.1

      Sections 22-25, and Part 2 are in force. So are the innocuous title, purpose etc sections (3-6?).

      However Marc Spring doesn’t have any defense for the legal faults in his application. He waived them when he presented it to the court as a plaintiffs request for an immediate injunction.

      Think about it. The court was asked to grant a court order to impose restrictions and penalties on the defendant without the check of having the defendant’s side presented at all.

  10. Jeeves 12

    ..and it seems there may be the not insignificant issue of whether the order was granted based on ( in part ) a comment posted by the applicant onto the defendants blog as some sort of Trojan My Little Pony.

    I would not want to be standing in chambers with a Judge glaring at me saying

    ” did you sell me a crock of shit last week?
    A crock of shit that is now spilling out blog-porridge all over town like the Magic Little Porridge Pot? With MY NAME ON IT????

    WELL, DID YOU?
    DID YOU?”

    I’d rather be spooning with Cameron and Simon up the hills, than be that guy.

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