The recent debate over the take-down of local torrent and file-sharing websites Bitfarm, Ninja Central and Newshost have highlighted some serious shortcomings in the way in which complaints about online content are handled in South Africa.
In the case of Bitfarm and Newshost the Recording Industry of South Africa’s (RiSA) Anti-Piracy Unit issued take-down notices to the Internet Service Providers Association (ISPA) which in turn issued the hosting ISP, MTN Network Solutions, with an ISPA take-down notice.
Odds stacked heavily against websites
ISPs which receive take-down notices from ISPA will typically take down a website or website content without giving the matter much thought. This is partly due to poor legislation when it comes to the handling of complaints about local content on the Internet.
According to the ECT Act a service provider is not liable for wrongful take-down in response to a takedown notification. This means that the ISP and ISPA are indemnified against legal action of a wrongful take down notice.
The ECT Act further states that “any person who lodges a notification of unlawful activity with a service provider knowing that it materially misrepresents the facts is liable for damages for wrongful take-down".
“In other words, the ECT Act seems to advise that someone who has been targeted by an wrongful take-down should target the person who lodged the take-down notice, rather than the ISP or ISPA. The ECT Act specifically makes the lodger liable for damages,” said ISPA general manager Ant Brooks.
Should an ISP decide, however, not to honour a take-down notice they can be in hot water – both legally and with ISPA. It is therefore not surprising that many ISPs "take down first and ask questions later".
This system is open to wholesale abuse by any individual or company who could then submit a legally unsupported take-down notice to ISPA which, if all the basics are done correctly, will result in a take-down notice from ISPA to the ISP without any consideration of the legitimacy of the complaint.
During this whole process the website owner does not have any say and is in fact not even contacted about the potentially damaging actions which may be taken against him. The website owner is therefore not afforded any opportunity to defend his case and even notified in the case of its website being taken down.
ISPA partly to blame?
ISPA makes it clear that it should only be seen as an agent or "neutral messenger" in the case of take-down notices and it doesn’t make any calls on the legitimacy of the allegations.
ISPA also says that it does not force its members to take down content upon receipt of a take-down notice. “We only require that they respond to the notice,” said Brooks.
Reinhardt Buys, a legal expert in media, IP and Internet law, however argues that the current ISPA take down procedure is unconstitutional and that a website owner must be afforded the opportunity to challenge the allegations in a take-down notice.
In a legal document Buys says that he hopes that "ISPA appreciates the significance of their unlawful actions and the unacceptable precedent they have set in dealing with RiSA’s [take down] notices."
While the legality of ISPA’s take-down procedure is debatable, the current ISPA take-down notice template does seem to favour the take-down of websites rather than the objective, legal consideration of the complaint. (ISPA take down example here)
In its take-down notice to ISPs, ISPA opens with: “ISPA recently received the attached take-down request, targeted at your organisation. Acting as your appointed agent, we have reviewed the complaint and in our opinion it is a valid complaint which meets all of the legal requirements of the Electronic Communications and Transactions (ECT) Act.”
While this only means that the take-down notice is administratively sound, it may sound to an uninformed ISP that the complaint itself is valid. It is not clear why ISPA does not simply state that the take-down notice contained all the relevant information and make it clear that the validity and legality of the allegations are not verified and requires investigation from the ISPs side.
The ISPA template continues “The limitations on liability of service providers for content granted by Chapter XI of the ECT Act require that you remove or disable access to the data concerned upon receipt of a take-down notification.” This may again sound like the ISP is required to take down a website when this notification is received which is not accurate.
According to ISPA, “ISPs are only required to suspend or terminate content if that content "has been determined to be illegal". This is not, however, clearly communicated in the ISPA take-down notice.
“If you wish to refuse this take-down request, please respond to this message with an indication that you do not intend to remove the content, and provide a reason for this decision. Note that failing to remove the content in question will negate the limitation on liability granted by the ECT Act and may make you liable for that content.” Again it sounds as if the decision to not remove content is discouraged through the use of the term "refuse this take down request".
Questions are also raised as to why ISPA requires reasons to be supplied when the decision is made not to remove content while no reasons are required when content is removed. This further encourages an ISP to rather remove content in the event of a take-down notice, even only to avoid the additional work accompanying a decision not to remove content.
It is also not clear why ISPA does not encourage the ISP to contact the website owner to discuss the matter before removing their content. Removing content, or indeed a full website, can be very ¬damaging to an online business and engaging with the website owner should be seen as an important facet to any such process.
Buys is not particularly accommodating when it comes to ISPA’s handling of take-down requests, saying that ISPA has abandoned the importance of freedom of speech. This is something which ISPA strongly denies.
ISPA has said that it welcomed input from website owners and the public and that they could improve its template notices to present a more balanced view of the ISP’s options.
It seems that for now the law and the ISPA take-down procedure make it easy for an individual or company to abuse the system and facilitate the take-down of a website without any valid legal objection to the website’s content.
The current process may indeed infringe on a website owner’s constitutional rights, but to remedy the situation will involve amending the current ECT Act which may prove to be a very cumbersome and expensive task.