ADSL piracy legal warnings: Do you need to be worried?

Over the last few years numerous ADSL users in South Africa have received ‘network abuse’ and piracy notifications from the Internet Service Providers (ISPs), warning them that their accounts will be suspended unless they resolve the problems related to ‘copyright violation.’

Many of these copyright violation/piracy notices warn users against the use of services like BitTorrent which is used for file sharing over the Internet.

It is well known that these notices are generated internationally and then forwarded to the ISPs upstream provider (such as Internet Solutions) which simply passes it on to their reseller ISP which in turn e-mails it to the ‘offending’ subscriber.

The question remains as to whether or not these warnings should be taken seriously and if they carry any legal weight in South Africa.

Legal opinions

The late Reinhardt Buys – who was a legal expert in the Internet arena – previously said that the warnings sent out may well be invalid and even illegal in South Africa.

“These kinds of notices are 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,” said 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,” Buys concluded.

Lance Michalson, partner at Michalsons Attorneys, concurs with Buys, saying that under the Regulation of Interception of Communications and Provision of Communication-related information Act, 2002 (or RICA as it is more commonly known) the monitoring of Internet downloads can be illegal unless the user has given written consent to do so.

Michalson however pointed out that the issue is more complicated than this.

“First off, one would need to consider if, as part of the terms of service, the users have consented to having the content of their traffic monitored. In the case of Afrihost (and possibly other ISP’s) this is not the case. Since the ISP’s themselves have not monitored the content of the traffic, they have not per se acted illegally under the provisions of RICA,” said Michalson.

Michalson added that the notices raise other issues, like who is monitoring the content of the traffic to determine whether or not the content is pirated materials? Where are these monitors located, and finally where does the monitoring take place?

A further legal question is whether the location and the means of the monitoring affect complaints lodged with the ISP  – that is, if the monitor of the traffic acted illegally can the ISP’s rely on the information to suspend users for breach of their terms?

“In answer to the first question – ‘who is monitoring the traffic?’ – it will depend on who lodged the original complaint, but in all likelihood it will be a company like BayTSP. These companies are hired by copyright holders to monitor if their works are being pirated through a variety of means, most of which would be illegal under RICA,” explains Michalson.

“However RICA only applies to communications made and intercepted in South Africa, so if the firm is located outside of South Africa (which is most likely the case) and the “monitoring” occurs outside of South Africa it will be legal, as RICA will not apply.”

The important factor to consider here, said Michalson, is where the monitoring occurs. This in turn will depend on how the monitoring occurs.

“If the monitor of the firm relies on data being sent from the downloader’s computer or intranet, then it is very likely that (at least in part) some of the monitoring will have occurred in South Africa, and thus will be illegal,” said Michalson.

“If the monitor does not need data originating from South Africa, then one would have a difficult time proving that the monitoring occurred in South Africa. It is important to note that the ISPs will not have acted illegally, the ‘monitor’ will have, and so no recourse could be taken against the ISP, only the person who lodged the complaint (providing they were the one who monitored the traffic).”

This raises an even more interesting question: If the monitoring is illegal, can ISP’s rely on the information to enforce their policies?

“South Africa does not have a strict exclusionary rule for illegally obtained evidence, that is to say, just because evidence was obtained illegally, does not automatically mean it will be inadmissible in a court of law. So if one was taken to court using the ‘monitored’ traffic as evidence one could try and get it excluded on the basis that it was illegally obtained, but you would not be guaranteed to win this argument,” said Michalson.

Michalson added that ISP’s are not courts of law, and are not bound by the laws of evidence, so they are well within their rights to rely on these reports to enforce their usage policies.

The bottom line

“This brings us on quite nicely to the issue of the likely repercussions of these letters. Most copyright holders are based overseas, and it is highly unlikely from a practical perspective that they would prosecute a user for pirating if they lived outside of their jurisdiction,” said Michalson.

“The reasons are obvious: not only is it really expensive (especially if it is only for a few items), but it would be really difficult to enforce a judgement against somebody if the court cannot attach any of the offenders assets (so if a US court found you guilty and ordered you to pay a fine, there is no way for them to force you to pay the fine if you have no assets in the US and you yourself are not in the US).”

The real problem people will face, says Michalson, is that their ISP’s could cut off their internet services.

So should internet users be concerned about these letters? “The likelihood of legal actions is minimal, but there is a real risk that could have their internet services cut off,” says Michalson.

There is however nothing preventing a user from moving to a different ISP or creating a new account.

“Ultimately it is up to the user to decide how much they value their internet connection and if they are willing to risk it to pirate material,” Michalson concludes.

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