Codes of Practice: No Requirements to enforce them

Opinion - For Immediate Release

Codes of Practice - No Requirements to enforce them???

The ISP Spam Code of Practice is insufficient in its present form and is cosmetic only. There will be no visible improvement of services and ISPs will be allowed to ignore the problems as they will not be required to do anything material.

This is a travesty and should be corrected immediately.

Codes of Practice, or guidelines, are normally tailor-made to deal with the common problems of a particular trade. The disadvantage is that there are no direct methods of enforcement. Most clauses within any Code of Practice are open to interpretation, and provide no real guidance or direction in what to do in certain circumstances.

Taking either a ‘no action’ stance or even an ‘inappropriate action’ stance in any particular situation is not a breach of the code, as there is no requirement for the trade to do so.

This lack of Code of Practice enforcement has been highlighted by the situation with State Owned Enterprise (SOE) Mercury Energy and the tragic death of Folole Muliaga. In this case Mercury Energy’s contractor cut off the electricity to the home of Mrs Muliaga in response to an unpaid bill allegedly knowing full well that she could only breathe with an oxygen machine and would die if the power was turned off.

Prime Minister Helen Clark has publicly said that when SOE Minister Trevor Mallard asked Mercury Energy why it did not follow its Code of Practice for this situation, the response was that there was ‘No Requirement’ to do so.

This is unacceptable.

There are many unanswered questions regarding this case that are not relevant in this article, but the main question to keep in mind is ‘who is accountable’?

The ISP Spam Code of Practice is supposed to complement the Government’s new Unsolicited Electronic Messages Act in that it outlines the responsibilities of ISPs under a self-regulatory model. Both the Act and the Code of Practice are due to go live on September 5th 2007. The Code of Practice is now at the final public consultation stage and can be viewed on the InternetNZ website. Public comment is only available on this until 9am June 18th 2007.

This current draft is so poorly worded that it will have little, if any, impact on any Internet Service Provider within New Zealand's jurisdiction. It is nothing but cosmetic gesture that favours the interests of the ISPs. Under this Code of Practice the current influx of spam and other internet nasties will not change as it is not worded strongly enough to force ISPs to take responsibility and become accountable to their business and consumer customers.

After all, why should they? There is no requirement for them to comply, so why should they increase their compliance costs if there is no requirement for them to comply in the first place?

As it stands, the Code of Practice recommends that ISPs make spam filters available, but the industry is well aware that spam filters will never be 100% effective, are costly to maintain, and are always at best one step behind the activities of spammers in the first place.

Where is the inclusion or mention of other independent electronic messaging systems where there is no spam?

Where is the requirement that ISPs should openly demonstrate their compliance with the code?

So how long will it be before the usage of email dies? The answer is - probably not too long. As long as ISPs continue to perpetuate the global pandemic of spam and internet nasties, the day will come when the dangers of using email will force everyone to simply stop using it.

We currently have the perfect opportunity to get this issue right for NZ service providers. I strongly recommend the overall tone of the Code become less 'cosmetic' than it currently is and introduce a positive and practical enforcement of service providers to become more proactive and accountable.

If the Code goes live in its current format, nothing will change. Service providers will simply ignore the Code at a time when they need to be made more accountable because there is no requirement for them to do so.

ENDS

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