Content Liability and Censorship

Content Liability and Censorship

A review of the South African situationWilliam Stucke

AfPIF-6

August 24-28, 2015 AfPIF 2015, MAPUTO - MOZAMBIQUE 1

#include std-disclaimer

AfPIF 2015, MAPUTO - MOZAMBIQUE 2

Electronic Communications & Transactions Act

• ECT Act, #25 of 2002• Chapter III: Facilitating Electronic Transactions

• Was crucial in that it gave legal recognition to data messages• Chapter VII: Consumer protection

• Provided a legal basis to outlaw spam• Chapter VIII: Protection of Personal Information• Chapter X: Domain Name Authority and Administration

• Caused huge controversy• This was eventually resolved with the establishment of the zaDNA • Which largely adopted the principles previously reached by NameSpace

August 24-28, 2015


Electronic Communications & Transactions Act 2• Chapter XI: Limitation of Liability of Service Providers

• Gave “mere conduit” limitation of liability to ISPs, provided: -• Member of an Industry Representative Body, which enforces:• Code of Conduct• Notice & Take Down Procedure – no liability• ISPA recognized as an IRB by Gen. (Rtd) Siphiwe Nyanda in May 2009

• “General Surprise”August 24-28, 2015


ISPA take-down stats 2014

August 24-28, 2015


ISPA take-down stats 2014

August 24-28, 2015


Electronic Communications & Transactions Act 3• Other chapters tended to be ignored in the controversy of Chapter X

• IV: E-Government Services• V: Cryptography Providers• VI: Authentication Service providers• IX: Protection of Critical Databases• XII: Cyber Inspectors• XIII: Cyber Crime

• Most of these chapters remain only partly or even un-implemented, 13 years later

August 24-28, 2015


Other relevant legislation• Film & Publications Act, #65 of 1996

• Classifies films, games & publications• Amended in 1999, 2004, 2009, 2014• ISPs must register with the FPB, renew annually

• Independent Communications Authority of South Africa Act, #13 of 2000• Regulation of Interception and Provision of Interception Related Information Act,

“RICA”, #70 of 2002• Defines a “service provider” as anyone who provides Internet Access to anyone else• Required ISPs to spend millions installing interception equipment• All service providers must “RICA” their customers• There are additional requirements for service provided using SIMs• Means that 100,000 supermarket cashiers have access to your personal identification data –

wonderful opportunities for identity theft

• Electronic Communications Act, #36 of 2005August 24-28, 2015


Draft Online Regulation Policy• Draft Online Regulation Policy – March 2015

• Attracted widespread criticism for over-wide ambit• Usual excuse: “in order to protect children from being exposed to disturbing and

harmful media content in all platforms (physical and online)”

• No outcomes of hearings, criticisms or submissions have been published• Lack of public consultation• Badly written

• Unconstitutional, unlawful and unimplementable• Intentional conflation of pornography and CSAM• McDonald’s is an ISP but Vodacom isn’t

August 24-28, 2015


Film & Publications Amendment Bill, 2015

• Film & Publications Amendment Bill, 2015, approved by Cabinet – August 2015

• Not yet published• Not yet reached Parliamentary Portfolio Committee on Communications

August 24-28, 2015


FPB Amendment proposals• Obligations on ISPs to filter content• “Online distributor” must register and pay an annual fee• “Online distributor” may self-classify, but must pay a “per-title” fee• Must display the FPB Logo and classification “prominently”

• Applies to anyone who provides content accessible in South Africa. E.g.• New York Times?• BBC?, YouTube?, etc.?

August 24-28, 2015


We should be proactive…• Accept that there will be some form of online content

control imposed in South Africa (and that it will be badly done)

• Recognise that all who participate in and rely on online content have a shared responsibility

• Self-regulatory and co-regulatory models• Develop and push educational campaigns at parents,

teachers and children• Importance of Internet intermediary neutralityAugust 24-28, 2015

AfPIF 2015, MAPUTO - MOZAMBIQUE 12August 24-28, 2015


Thank you

[email protected]

August 24-28, 2015