Cell C (Pty) Ltd ("Cell C") hereby wishes to thank the Portfolio Committee on Home Affairs for the opportunity to make this written submission in response to the proposed Films and Publications Amendment Bill B 61-2003.

Cell C has limited this submission to its key initial concerns. Cell C will not be making an oral submission on 18 November 'US, but hereby confirms that it will be attending the public hearing and looks forward to participating in the remainder of the process.

Cell C would, first of all, like to express its support to the Department of Home Affairs in its quest to address through the proposed Bill, the pernicious and destructive problem posed by Internet child pornography. Cell C is, however, concerned that ~e proposed amendments will have an unintended consequence in that it will impose strict liability on all telecommunication service providers and, as a consequence, undermine the very provision of telecommunications services, in particular the ability of providers of such services to address service innovation and expansion.

Cell C's specific Concerns, at this stage, relate to:

• The definition of "distribute" which includes the failure to take reasonable steps to prevent access by a person under the age of 18 years;

• The definition of "Internet service provider" which is broad enough to include any telecommunication service provider;
• The possibility that the requirements imposed by this Bill may conflict with the Regulation of Interception of Communications and Provision of Communication related Information Act, 70 of 2002; and

• The onerous obligations placed on Internet Service Providers in terms of section 27A.

Most telecommunication services can be used to access the Internet even though the provider of such telecommunication service does not provide an Internet service. The telecommunication service provider will not be privy to the content being conveyed in this manner and will be in breach of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 70 of 2002, should it monitor such conveyance. A telecommunication service provider that acts as such a mere conduit often, however, also caches or temporarily stores data as an inherent part of providing an efficient telecommunication service.

The current Bill will require each and every telecommunication service provider to register with the Board as an Internet service provider and to take all reasonable steps to prevent its services to be used for the distribution of child pornography. The telecommunication service provider will furthermore be held liable for being in possession of such prohibited material i.e. child pornography, should it deploy cache or temporary storage devices as part of the telecommunication service.

Parliament was faced with a similar predicament during the drafting of the Electronic Communications and Transactions Act, 25 of 2002 ("the ECT Act"). In terms of the ECT Act, a telecommunication service provider will not be liable for providing access to or for operating facilities for information systems or transmitting1 routing or storage of data messages via an information system under its control, as long as the service provider-

(a) Does not initiate the transmission

(b) Does not select the addressee;

(a) Performs the functions in an automatic, technical manner without selection of the data; and

(d) Does not modify the data contained in the transmission

Furthermore that acts of transmission, routing and of provision of access referred to above, include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place-

(a) For the sole purpose of carrying out the transmission in the information system;

(b) In a manner that makes it ordinarily inaccessible to anyone other than anticipated recipients; and

(c) For a period no longer than is reasonably necessary for the transmission.

Similar provisions with regards to caching and hosting can be found in sections 74 and 75 of the ECT Act.

Cell C believes that a similar mechanism can be employed in the Films and Publications Amendment Bill. This will ensure that the objective of the Bill is met without the unintended consequences highlighted above.

Cell C trusts that it will be afforded a further opportunity to make more detailed comments in the future and it looks forwards to participating in the continued debate.

Yours sincerely