Guidance for online content hosts retaining illegal content for evidential purposes
The regulatory role of the Digital Safety Group
November 2024
Background
The Films, Videos, and Publications Classification Act 1993 (FVPC Act) governs how objectionable content is to be dealt with in New Zealand. When an online content host becomes aware of objectionable content being stored on its platform by users, for example through a take-down notice, the online content host must remove, or prevent access by the public to, all copies of the online publication that is the subject of the notice to or over which it has access or control as soon as is reasonably practicable after receipt of the notice but no later than the end of the period specified in the notice. An online content host may also retain those files for evidential purposes in criminal investigations and/or prosecutions.
Provided that they are no longer accessible by the public, the Department of Internal Affairs (DIA) supports the retention by online content hosts of files relating to objectionable content for the purpose of supporting/assisting the investigation and prosecution of criminal conduct as long as the relevant provisions of the FVPCA, including any take-down notices, are complied with.
This guidance explains DIA’s approach to the legal framework for online content hosts retaining copies of files relating to objectionable content for evidential purposes and disclosing such files to the relevant authorities in criminal investigations and/or prosecutions.
Summary
If an online content host receives a take-down notice or otherwise becomes aware that a user has uploaded objectionable content onto its platform, it must as soon as reasonably possible:
a) remove the objectionable content or prevent access by the public to the objectionable content by disabling any public link or public display to ensure the objectionable content is no longer publicly available;
b) delete the relevant files from the user account, or otherwise block the user’s access to those files;
c) preserve the files relating to the objectionable content securely so no one else can access the objectionable content; and
d) report the content and make it available to DIA’s Digital Safety Group and/or the New Zealand Police (unless it was DIA or the New Zealand Police who initially reported the objectionable content) and/or any relevant international authorities, as applicable.aZ
Provided that an online content host takes the above steps, DIA will consider that the online content host has a lawful authority or excuse for possessing the objectionable content, for the purposes of section 131 of the FVPC Act.
What legislation applies to providers of online hosting services preserving objectionable content in New Zealand for evidential purposes in criminal investigations and/or prosecutions?
In accordance with the FVPC Act, an online content host, in relation to an online publication, refers to the person who or that has control over the part of the electronic retrieval system, such as an Internet site or an online application or similar, on which the publication is accessible
Anyone that has control over the part of an electronic retrieval system on which files can be stored from New Zealand or from which files can be accessed from New Zealand must comply with the FVPC Act.
What is considered objectionable under the Films, Videos, and Publications Classification Act 1993?
The meaning of ‘objectionable’ is set out in paragraph 1 of section 3 of the FVPC Act: online content is objectionable if it describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty, or violence in such a manner that the availability of the publication is likely to be injurious to the public good.
Under section 3 of the FVPC Act, online content is deemed to be objectionable if it promotes or supports, or tends to promote or support:
- the exploitation of children, or young persons, or both, for sexual purposes; or
- the use of violence or coercion to compel any person to participate in, or submit to, sexual conduct; or
- sexual conduct with or upon the body of a dead person; or
- the use of urine or excrement in association with degrading or dehumanising conduct or sexual conduct; or
- bestiality; or
- violence, cruelty, and crime in a way that could be harmful; or
- acts of torture, crime, or the infliction of extreme violence or extreme cruelty; or
- Targets a specific group.
The Office of Film and Literature Classification, or the Film and Video Labelling Body can provide more specific information about what the law considers to be objectionable content, if required.
What steps must online content hosts take when preserving objectionable content in New Zealand for investigative or evidential purposes in criminal investigations and/or prosecutions?
Upon receiving a take-down notice or otherwise become aware that a user has uploaded objectionable content onto your platform, an online content host must as soon as reasonably possible:
a) disable any public link or public display to ensure the objectionable content is no longer publicly available;
b) delete the relevant files from the user account or block the user’s access to those files;
c) preserve the objectionable content securely so no one else can access it; and
d) report it and make it available to DIA’s Digital Safety Group and/or the New Zealand Police (unless it was DIA or the New Zealand Police who initially reported the objectionable content) and/or any relevant international authorities, as applicable.
DIA’s approach to compliant online content hosts
Possessing, publishing or distributing objectionable content is an offence punishable under the FVPC Act by imprisonment for up to ten years, and fines of up to $200,000. DIA administers the FVPC and is one of the prosecuting agencies under the Act (including NZ Customs Service and NZ Police) and may prosecute persons in breach of the relevant provisions.
However, provided an online content host takes the steps set out above, the FVPCA provides for some protection for online content hosts where the relevant requirements have been met:
e) under sections 123(1)(e) and 124 of the FVPC Act, the online content host does not have the objectionable material in its ‘possession for the purposes of supply or distribution to another person’ (i.e. disclosing the objectionable content to law enforcement authorities does not fall within the scope of sections 123(1)(e) and 124 of the FVPC Act); and
f) under section 131(1) of the FVPC Act, when the online content host retains copies of files relating to objectionable content for investigative or evidential purposes in criminal investigations and/or prosecutions (whether on its own initiative or at the request of law enforcement authorities), it has that objectionable content in its possession with a lawful excuse.
Further information and contacts
Department of Internal Affairs – Digital Child Exploitation Team, Digital Safety Group
Disclaimer
This information provides only guidance. The Department of Internal Affairs cannot give a legal opinion or any kind of formal approval or statement defining what is, or is not, acceptable in respect of online content hosts dealings with objectionable content. The Department is the regulator and will examine online content hosts’ activities as they arise, to see if they breach the FVPC Act. If you need further advice or clarification, you should seek independent legal advice.
