Censorship conspiracy over South Africa’s land expropriation bill

Dear South Africa, a website which aims to make it easier for South Africans to participate in government public consultations on policy and legislation, was issued a take-down notice last week.

The notice was issued to Dear South Africa’s hosting provider, Xneelo, by the Internet Service Providers’ Association (ISPA).

Following the take-down notice, the Dear South Africa website went offline for a few hours. It is currently displaying a notice which says that the site is being migrated.

Rob Hutchinson, the MD and a director of Dear South Africa, took to Twitter and suggested that the take-down notice on the platform was as a result of the organisation’s participation in the land expropriation bill debate.

“Hmm. Dear South Africa participation platform forcibly taken down just as the comment period on land expropriation is coming to an end (10 Feb),” Hutchinson said.

The official Twitter account of Dear South Africa posted a similar message, along with instructions on how people could submit their comments on the bill directly.

The deadline for comments on the land expropriation bill has since been extended to 28 February 2021.

Allegations of censorship

Two days prior to the take-down notice being issued, Hutchinson posted that the same person who filed the takedown request with ISPA had issued an instruction to freeze Dear South Africa’s bank accounts.

“On 28 October they issued instruction to freeze the [Dear South Africa] bank account, effectively crippling the court case. Yesterday the same ‘they’ issued instruction to take down the website and participation platform, effectively crippling the entire operation. Watch this space,” stated Hutchinson.

The court case Hutchinson referred to is a potential Constitutional Court challenge to the expropriation bill. There was a fundraiser on the Dear South Africa website for the court case, which contained the organisation’s banking details.

As a result of the take-down of the Dear South Africa website and Hutchinson’s past comments on Twitter, several of the organisation’s supporters drew the conclusion that ISPA’s take-down process was being abused to censor the platform.

However, the truth of the matter appears to be more complex and involves a dispute among the organisers of Dear South Africa.

Hutchinson did not respond to MyBroadband’s request for comment by the time of publication.

Website owner took down Dear South Africa – Xneelo

MyBroadband contacted Xneelo for comment, and the company explained that it did not forcibly take down the Dear South Africa website.

“The website owner took it down themselves to comply with the take-down notice,” Xneelo told MyBroadband.

Xneelo said that it now appears as though Dear South Africa is hosting its site outside South Africa.

Ted Blom – Dear South Africa director

MyBroadband also contacted Ted Blom for comment.

Blom is listed as one of three directors of the DearSA non-profit company, though he is best known as a mining and energy expert who provides commentary and analysis on Eskom for the South African media.

When asked about the take-down notice, Blom said that there are issues around the website.

“The board meeting to discuss this has been adjourned from [Friday] to Monday afternoon to give the parties time to instruct their representatives and revert,” he said.

Blom stated that they will issue a press statement after the board meeting scheduled to be held on 8 February 2021.

Update: The board of Dear South Africa has announced the removal of Rob Hutchinson as a director of the non-profit company. The full statement is included at the end of the article.

Dispute inside Dear South Africa – ISPA

ISPA, in its response to MyBroadband’s request for comment, stated that the person who lodged the take-down request against Dear South Africa made specific allegations of unlawful activity relating to the operation of the website.

The person provided information to support their claims, along with the other information required by section 77 of the Electronic Communications and Transactions Act, ISPA said.

“The take-down notice received by ISPA did not relate in any way to the public participation petitions hosted on the site,” it said.

According to ISPA, the intention of the take-down does not appear to be to silence the members of the public who have participated on the site.

“Based on the information available to ISPA, the take-down notice appears to be the result of a dispute between the people involved in the organisation operating the website.”

ISPA explained that, given the nature of the website and the allegations made, Xneelo requested that ISPA confirm with the person who lodged the take-down notice that they were aware that the ECT Act makes them liable for a wrongful take-down notice, and that they wished to continue with the take-down process.

“ISPA did this, and received confirmation that the take-down lodger wished to proceed, as well as additional information motivating the take-down and supporting the claims of unlawful activity.”

MyBroadband has requested the information that was supplied to ISPA to support the take-down request. ISPA has confirmed that it received our Promotion of Access to Information Act request and said that it will respond in due course.

ISPA’s full statement to MyBroadband is reproduced below:

We wish to emphasise that ISPA is not a regulator. We do not regulate Internet content in any way. We act only as the agent for the administration of take-down notices, for the members of ISPA who have duly appointed us as such. ISPA itself does not remove any websites nor make decisions in this regard. Our role is to administer the process according to applicable law and pass on valid take-down notices to our members. Each hosting service provider must then make their own decision as to whether to remove a targeted site.

As a general rule, ISPA does not comment on specific take-down notices. These frequently involve unlawful content or activities, and it is always prudent to refrain from commenting on matters that may be subject to ongoing or future legal processes. We assure you that this position is not because ISPA does not wish to be transparent about the role it plays in administering the take-down notice process.

Since the target of this take-down notice has chosen to make public some of the correspondence with the ISPA member involved, we believe it is appropriate for us to confirm the following:

  • The take-down notice received by ISPA did not relate in any way to the public participation petitions hosted on the site. It was not an effort to censor any of the content on the site. Based on the information available to ISPA, the take-down notice appears to be the result of a dispute between the people involved in the organisation operating the website. The intention of the take-down does not appear to be to silence the members of the public who have participated on the site.
  • The person lodging the take-down notice provided specific allegations of unlawful activity relating to the operation of the website as well as the other information required by section 77 of the Electronic Communications and Transactions Act.
  • Given the nature of the website and the allegations made, the website host (Xneelo) specifically requested that the ISPA confirm with the person who lodged the take-down notice that they were aware that the ECT Act makes them liable for a wrongful take-down notice, and that they wished to continue with the take-down process. ISPA did this, and received confirmation that the take-down lodger wished to proceed, as well as additional information motivating the take-down and supporting the claims of unlawful activity.

ISPA has, for the duration of its existence, lobbied strongly for the rights of Internet users to freedom of speech and freedom of expression. We do acknowledge that as a result of someone exercising the provisions of the ECTA to lodge a take-down notice, a site of value to the public has been removed from the Internet, but we are confident that we have followed legislated processes in administering this take-down notice.

Hutchinson removed as director over financial irregularities

The Dear South Africa board — Sandra Dickson, Ted Blom and Mike Heyns, have announced that Rob Hutchinson has been removed as a director of the non-profit.

“This is a direct result of issues around the management of the NPC’s finances, bank account and financial irregularities,” the said in a statement to MyBroadband.

“The bank account was frozen until such time the matter is resolved. The Bank offered a solution, but to date this solution could not be implemented due to obstructive behaviour of one of the DEARSA NPC directors. A High Court case (Case Number 44598/2020) on the matter was heard on 5 January and dismissed on the matter of urgency.”

According to the board, after freezing the bank account, Hutchinson replaced the banking details on the website with a bank account number that does not belong to Dear South Africa.

When Hutchinson refused to remove the new banking details from the site, the board approached ISPA with a take-down request.

The website has since been moved to a host outside ISPA’s jurisdiction.

“Due to the above, [Dear South Africa] suspends all open campaigns. [Dear South Africa] dissociates itself from any further fundraising efforts on the dearsouthafrica.co.za website until further notice. The DEARSA Board strongly rejects the current dearsoutharfica.co.za website being run on a non-ISPA affiliated host without board approval,” the board stated.

“Legal action to recoup misappropriated funds & expenses will follow once a forensic review is completed. All debit orders in favour of DearSA NPC are currently held in a suspense account and are secure.”

The full statement from Dear South Africa is reproduced below:

The DEARSA NPC Board resolved today to remove RN Hutchinson as a Director of DEARSA NPC. With immediate effect the Board of DEARSA NPC dissociates itself from any activity by ex-Director RN Hutchinson on behalf of this non-profit company.

The DEARSA NPC Board also dissociates themselves from the current contents of the dearsouthafrica.co.za website.

This is a direct result of issues around the management of the NPC’s finances, bank account and financial irregularities. The bank account was frozen until such time the matter is resolved. The Bank offered a solution, but to date this solution could not be implemented due to obstructive behaviour of one of the DEARSA NPC directors. A High Court case (Case Number 44598/2020) on the matter was heard on 5 January and dismissed on the matter of urgency.

Subsequently the dearsouthafrica.co.za website was negatively affected when the DEARSA NPC’s bank account number was removed and replaced with an alternate Bank account number that does not belong to DEARSA NPC. After RN Hutchinson refused to remove it, the matter was reported to ISPA. The complaint was accepted and a “take-down” notice was issued by ISPA to Xneelo, the host company of the website. Since the “take down” notice, the website was moved to another host that is not affiliated to ISPA thus circumventing ISPA’s jurisdiction. The moving of the website was done without DEARSA Board approval and the site is thus still up and running with the same non-approved content. This behaviour cannot be condoned by the DEARSA NPC Board.

The DEARSA NPC Board was unable to resolve the issue around the bank account and the content of the dearsouthafrica.co.za website with RN Hutchinson.

Due to the above, DEARSA NPC suspends all open campaigns. DEARSA NPC dissociates itself from any further fundraising efforts on the dearsouthafrica.co.za website until further notice. The DEARSA Board strongly rejects the current dearsoutharfica.co.za website being run on a non-ISPA affiliated host without board approval.

Legal action to recoup misappropriated funds & expenses will follow once a forensic review is completed. All debit orders in favour of DearSA NPC are currently held in a suspense account and are secure.

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Censorship conspiracy over South Africa’s land expropriation bill