South Africa’s ISP Association declines to fight censorship law ultimatum

South Africa’s Internet Service Provider Association (ISPA) has said that ISPs must register with the Film and Publications Board (FPB) by 27 January 2023.

This comes after the FPB issued a legal notice at the end of October demanding that South African ISPs comply with amendments to the Film and Publications Act.

It gave ISP 90 days to comply.

As part of the exercise, Internet service providers must provide reports on all reasonable steps taken to prevent the use of their services for hosting and distributing prohibited material.

Prohibited material includes child pornography, propaganda for war, incitement of imminent violence, and advocating hatred based on an identifiable group characteristic that constitutes incitement to cause harm by any person.

Legal experts have raised concerns about the FPB Act amendment — which has been referred to as the “Censorship Bill” — over the vagueness of the incitement and hate speech provisions.

Another major point of concern is that the FPB has been granted dominion over an area of criminal law already covered by other legislation, including the relatively new Cybercrimes Act.

As part of its October ultimatum, the FPB has demanded that ISPs state whether they have reported the presence of prohibited content.

ISPs must also report whether they gave the particulars of the person responsible for hosting, maintaining, or distributing the prohibited content to the police.

Service providers must then say what reasonable steps they took to preserve evidence for the relevant authorities to use in investigations and prosecution.

In addition, service providers are required to report how they have:

  • Prominently displayed reasonable safety messages in a language that will be clearly understood by children, on all advertisements for a child-oriented service, as well as in the medium used to access such child-oriented service including, where appropriate, chatroom safety messages for chatrooms or similar contact services.
  • Provided a mechanism to enable children to report suspicious behaviour by any person in a chatroom to the service or access provider.

Failure to comply with this part of the notice could see ISPs face a criminal fine of up to R50,000 and imprisonment for six months.

Dominic Cull, ISPA regulatory advisor

ISPA is a non-profit and recognised Internet industry representative body with around 215 ISP members.

ISPA says it has a close working relationship with the FPB and views concerns about registering with the agency as “somewhat overblown”.

Dominic Cull, ISPA’s regulatory advisor, said ISPs have been required to register under the FPB Act since 2004.

“The extent to which this has been enforced over the years has, however, varied,” Cull stated.

“Those who fall within the definition of ISP have no choice but to comply with the registration requirement,” said Cull.

Despite ISPA’s statement that concerns about the FPB ultimatum were overblown, the industry association went on to raise serious concerns.

“This is not to say, however, that ISPA does not have serious concerns about the new powers which the FPB has and the manner in which these will be implemented,” Cull said.

“These have been directly communicated to the FPB.”

He highlighted the overlap between the Films and Publications Act and other legislation as one area of concern, such as the Cybercrimes Act and the Domestic Violence Act.

“ISPs work with SAPS and other law enforcement agencies in the investigation and prosecution of criminal conduct — including offences relating to child sexual abuse material (CSAM),” Cull said.

“This is done in accordance with applicable procedures set out in legislation such as the Criminal Procedure Act and the Cybercrimes Act.”

Cull said having duplicated reporting obligations under the FPB is problematic, particularly where personal information is required to be handed to the Board without any court authorisation.

ISPA said it appreciates the actions taken by the FPB to educate South Africans about online harms and will continue to engage “with a view towards deepening the FPB’s understanding of the Internet industry in South Africa.”

ISPA said the FPB has a prescribed form for registration that ISPs must use, which costs R678.76 as a once-off fee.

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South Africa’s ISP Association declines to fight censorship law ultimatum