In early October some local ADSL subscribers began to receive warnings from their Internet Service Providers (ISPs) regarding illegal download activity on their accounts, and were threatened with suspension and even blacklisting.
The complaints were typically being forwarded to ADSL subscribers by upstream ISPs like Internet Solutions (IS), Axxess and Web Africa. Each of these circulated correspondence to users informing them that the continued usage of file sharing services such as BitTorrent would result in account suspension.
This prompted questions regarding the legality of monitoring Internet traffic in South Africa to which Reinhardt Buys, Senior Manager of Technology Law at Deloitte & Touche, says is illegal and invalid in SA. “In terms of the Regulation of Interception of Communications Act an Internet download may not be intercepted or monitored in this way without the prior written consent of the user,” says Buys.
“Doing so is a criminal offence. In other words, collecting this kind of evidence is a criminal offence subject to a R1-million fine. An ISP should not be using illegal, unconstitutional and invalid evidence in order to intimidate users.”
At the recent MyBroadband Conference industry players from local ISPs and from ISPA responded to this issue, essentially saying that it is not the job of ISPs to protect the business interests of music and film corporations.
“To me this is like asking the plumber to monitor what is flowing through the sewer pipes,” commented Mike Silber, a legal representative of ISPA. “Occasionally blockages have to be cleared but generally that’s not our business. Rather take it to court. Why must Internet Service Providers, as mere conduits, have to bear the brunt for a failed or failing business model?”
“There is a greater amount of piracy happening on wireless networks, so having ISPs monitor their customers isn’t really going to help,” added Ant Brooks of ISPA, “Furthermore who’s going to pay for all of this? There is an expectation that ISPs are going to cough up their own money to protect someone else’s interests and annoy their own users.”
Royden Dall of ISP Internet Solutions agreed, adding that despite previously circulated user warnings the company would rather focus on improving service levels than monitoring usage.
“If we had our way I would like to say that we would have uncapped ADSL throughout, if my local IPC could come down in the next few years we’d be in the very nice position to bring uncapped accounts to a UK level,” commented Dall. “I very much doubt we would enforce where our subscriber base goes. We’re not going to run around and stop allowing the internet to do what it does for people.”
Online piracy and ISPs – discussion