DStv’s illegal streaming site blocking proposal warning

MultiChoice’s call for new legal mechanisms that would require Internet service providers (ISPs) to block illegal streaming websites without a court order could have several unintended consequences, a major industry representative has warned.

MultiChoice recently told MyBroadband it has actively advocated for legislative reforms to combat illegal streaming websites through multiple submissions to government authorities.

“These reforms would require ISPs to block domains and IP addresses identified as infringing upon the rights of content holders,” MultiChoice explained.

The company’s satellite TV and streaming service, DStv, is a major target for illegal streaming websites and IPTV services, particularly because of its extensive live sports rights.

One area where MultiChoice has made its stance on the issue clear is in its submission commenting on the Department of Communications and Digital Technologies’ Draft Whitepaper on Audio and Audio-Visual Content Services.

The company labelled the government’s proposal to impose requirements on ISPs to cooperate with intellectual property (IP) rightsholders and the government to police illegal file-sharing or streaming websites as “excellent.”

The government and DStv propose amending the Electronic Communications and Transactions Act (ECTA) to mandate that ISPs shut down or block access to websites hosting content illegally.

While MultiChoice praised the proposal, it said its effectiveness would depend on the extent of cooperation required from ISPs.

“If ISPs are merely required to supply subscriber or other technical information, then this will not be effective,” MultiChoice said.

“If, however, they are required to take positive, technical action towards actually limiting the distribution of illegal content, then that will stand a better chance of being effective.”

As it stands, MultiChoice primarily uses court orders to get ISPs to take down infringing websites. This process is expensive and time-consuming.

In its own submission on the whitepaper, the Internet Service Providers’ Association (ISPA) — which represents hundreds of ISPs — acknowledged the lack of a legal framework for blocking websites in South Africa.

The association also recognised the global trend towards providing a mechanism for site blocking could play a role in protecting intellectual property.

However, it said that this mechanism should be properly constructed and implemented, and warned of several potential harmful impacts of blocking websites:

• Breaking accessibility of the legal Internet — Site-blocking is imperfect and will lead to lawful content being blocked.
• Increasing the cost to communicate — The additional cost associated with monitoring for illegal websites and related administration will be passed on to consumers.
• Impact on local content industry — ISPA expects the vast majority of blocking requests will come from outside South Africa, with foreign parties claiming to hold the rights to local content.
• Difficult for small ISPs to comply — Site-blocking can be technically complex and requires additional human resources, which could be a tall order for smaller service providers.

ISPA also explained that site-blocking at the ISP level could be easily circumvented using a virtual private network or free recursive DNS resolver.

The association also wants a clear legal position from the government that blocking websites will not be an offence under RICA.

It said ISPs must receive the same conditional legal immunity provided under the take-down notice process when they act on lawful instructions to block websites hosting illegal content.

ISPA proposed that South Africa adopt the same model used in Australia to block offshore gambling websites.

That mechanism empowers the Australian Communications and Media Authority (ACMA)—the country’s equivalent of Icasa — to request ISPs’ help in disrupting access to illegal online content.

The mechanism includes detailed guidelines for implementation, including minimum thresholds for the sites to qualify for blocking.

These include that the website’s actions must:

• Involve serious criminal or civil offences, or threats to national security; and
• carry a maximum prison term of at least two years or a financial penalty of at least 120 Commonwealth penalty points (AU$37,560).

Australians or parties that have their websites blocked due to a request can also contact the ACMA directly through a form on its website to dispute blocks they believe were done in error.