INTERNET SERVICE PROVIDERS ASSOCIATION

Re: Film and Publications Amendment Bill [B61-2003]

The Internet Service Providers Association ("ISPA") is a South African Internet industry body not for gain. ISPA currently has 60 members comprised of large, medium and small Internet service and access providers in South Africa. Formed in 1996, the ISPA has historically served as an active industry body, facilitating exchange between the different independent Internet providers, the Independent Communications Authority of SA ("ICASA"), operators and other service providers in South Africa. Pursuant to the promulgation of the Electronic Communications and Transactions Act, 25 of 2002 ("ECT Act") ISPA applied to the Department of Communications for recognition as an industry body for the Internet Service supply sector. We have also published a Code of Conduct, which our members are required to sign and adhere too. ISPA is committed to excellence in service provision and assisting in the development of the Internet in South Africa.

The ISPA has been working actively with the Film and Publications Board (FPB) for many years with regard to child pornography. We also attended the National Workshop on Combating Child Pornography through effective Law Enforcement, 12 - 14 May 2000, held in Cape Town and offered our assistance to the FPB at all times with regard to the best manner of implementing laws to combat child porn.

We have also made written inputs on various aspects of the Film and Publication Amendment Act No. 34 of 1999 ("The Amendment Act") after its promulgation in April 1999. Our concerns then largely pertained to enforcing the prohibition on child pornography, and, prior to the promulgation of the ECT Act, addressed questions of liability for Internet Service Providers (ISPs), which have now largely been addressed by Chapter XI of that Act. We also raised concerns regarding a perceived the dilution of constitutional protection afforded by the principal Act, the Film and Publications Act No. 65 of 1996 ("The Act"). While discussions surrounding the 1999 amendment to the 1996 Act had been underway for some time, we were only able to make our comments to the Film and Publications Board, after the Amendment Act was published. We wish to offer our comments to the honourable members of the Portfolio Committee on this proposed amendment, regardless of a formal call for comments, which we understand may follow at a later stage. At all times, we make ourselves available to you for any questions or issues of clarification that you may have.

We would also like to request the opportunity to make oral representations on this matter before the honourable Committee.

Our comments on the current Amendment Bill [B61-2003] only as it pertains to Internet Service Providers (ISPs) and the Internet follow below:

  1. ISPA strongly supports the deletion of the word "degrade" from the current Act in agreement with the motivation offered in the attached memorandum on the objects of the Bill, i.e. that the term as it is currently used is gender-biased and fails to take into account the violation of the right to human dignity in its totality.
  2. ISPA notes the revised definition of "distribute" to include in the case of a film or publication, "the failure to take reasonable steps to prevent access thereto by such a person".

2.1. ISPA questions (i) the extent to which the Bill refers here to privately held collections on a personal computer, or is more expansive in its approach to " access" and means to include ISPs. As drafted, it is currently ambiguous. (ii) In the second instance, we wish to draw your attention to the requirements under section 71(2)(a) read with section 72 of the ECT Act, which require the industry to have and implement a code of conduct to ensure eligibility against third party liability. Section 71 of the ECT Act provides as follows:

71. (1) The Minister may, on application by an industry representative body for service providers by notice in the Gazette, recognise such body for purposes of section 72.

(2) The Minister may only recognise a representative body referred to in subsection (1) if the Minister is satisfied that -

(a) its members are subject to a code of conduct;

(b) membership is subject to adequate criteria;

(c) the code of conduct requires continued adherence to adequate standards of conduct; and

(d) the representative body is capable of monitoring and enforcing its code of 40 conduct adequately.
    1. Our code attaches for your information, setting out the procedure to be followed with regard to "notice and take down" procedure requests for ISP's where objectionable/illegal content is found.

Proposal:

On reviewing this code, we urge you to either amend the current definition of "distribute" to include in its understanding of "reasonable steps" the implementation of an industry wide code of conduct directed at taking reasonable steps to ensure that objectionable/illegal content is removed where warranted.

For example, "Distribute"... "For the purposes of this definition, reasonable steps will include the immediate removal/blocking of access to such material, or as soon as is practically possible, upon notification of such material; and the effective implementation of an industry wide code of conduct."

Alternatively, we suggest that you include this as a separate provision, drawing on section 71 and 72 of the ECT Act. Section 72 states in relevant part thus:

72. The limitations on liability established by this Chapter apply to a service provider only if-

(a) the service provider is a member of the representative body referred to in section 71; and

(b) the service provider has adopted and implemented the official code of conduct of that representative body.

2.3. We thus urge that the effective implementation of this code also covers the concept of taking reasonable steps envisaged in section 27(3) of the proposed Amendment Bill.

2.4. ISPA also urges the government departments concerned to streamline their requirements for "reasonable steps" across the growing collection of content- specific legislation, such as the ECT Act and the Film and Publications Act, as amended. We make the same suggestion with regard to the new proposed amendment in section 27A, that ISPs be required to register with the Board. (discussed further below).
  1. ISPA notes the inclusion of the definitions "Internet Address" and "Internet Service

Providers" in order to bring ISPs within the jurisdiction of the Act, in so far as child pornography is concerned.

3.1. Re: "Internet Address": The current proposal suggests that an "Internet address" means a "website, bulletin board service, and Internet chat- room or newsgroup or any other Internet or shared network protocol address". Similarly, that "ISP" means "any person who provides access to the Internet by any means".
    1. Each of these services requires differing degrees of control by an ISP. For example, an ISP has no control over the activities and discussions of users in Internet chat rooms. Recent research undertaken by ISPA relating to the Interception legislation revealed that in South Africa, very few ISPs in fact host chat rooms at all. Most chat facilities seem to be run by private companies, organisations and individuals outside of the Internet sector.
    1. To suggest that bringing ISPs within the jurisdiction of the Act will address the pressing problem of child pornography on the Internet, is somewhat of a misconception, as ISPs do not produce, distribute and offer child pornography. This occurs through the Internet at the volition of individual users. To then have such an expansive definition of an ISP is merely to complicate the problem. As it stands on the proposed definition, an ISP could be a parent who pays for an Internet subscription at home for their children; a school that provides Internet access on campus; an Internet café; or a public access terminal (PIT), which in the latter case would make the government through the Department of Communications, an ISP, for the purposes of the Act. All these "ISPs" do not sign a code of conduct and are not licensed providers in terms of the Telecommunications Act.

 

Proposal:

The current proposed amended definition of ISP includes "any person who provides access to the Internet by any means". As there is no definition of an ISP in the ECT Act, nor in the Telecommunications Act, we urge the committee to consider the definition of an ISP for the purposes of this Act as follows:

ISP - "An ISP is a duly licensed holder of a value added network (VANS) licensees, pursuant to section 40 of the Telecommunications Act, 1996, as amended".

We suggest that an alternative definition is used to describe "anyone else who provides access to the Internet by any other means".

 

  1. ISPA notes the new definition of "possession" to effectively include downloading of pornography onto computers, i.e. "keeping or storing in or on a computer or computer system or computer data storage medium and also having custody, control or supervision on behalf of another person".

    2. 4.1 We believe that there should be an exemption for users who accidentally stumble onto (child) pornography while browsing or who have unsolicited (child) pornography spam sent to their e-mail accounts. Often such material is temporarily stored, or "cached" on the hard drive with no intention by the user to have accessed it. We believe that where this is accidental/unsolicited, the low volume of images on the hard drive will prove that the user is not a habitual accessor of such material. This is especially important in the case where the Amendment Act (section 27(8)(b)) imposes a legal obligation on persons who have knowledge of the commission of an offence involving child porn, to report same. The potential for abuse in such circumstances is high, especially where workers may share computer terminals. We urge the Committee to consider such circumstances where it these laws, important as they are in their own right, can be used in an abusive manner.

  2. Regarding section 27, the offences for conduct contrary to classifications:

    3. 5.1. As with earlier amendments, no content has been given to the terms, "creates", "in any way contributes to", "imports", or "obtain or access". With technology associated with use of the Internet, any number of people can be creators, importers and obtain or access such material. One person who e-mails an image or video clip to four or five colleagues for example, could be classified as "causing to be distributed" in terms of the legislation. While we agree that no protection should be afforded to these persons, we remain concerned with the role an ISP can be held to play in providing the access to that person? Can an ISP, who gives mere access to the Internet, be considered a distributor for the purposes of this Amendment? We suggest that the words "knowingly provides access" be considered for inclusion here and that the provisions of section 73, of the ECT Act extracted for ease of reference be included in this Act:

    73. (1) A service provider is not liable for providing access to or for operating

    facilities for information systems or transmitting, 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;

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

    (d) does not modify the data contained in the transmission.

    (2) The acts of transmission, routing and of provision of access referred to in

    subsection (1) 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

    (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.

    system;

    (3) Notwithstanding this section, a competent court may order a service provider to terminate or prevent unlawful activity in terms of any other law.

  3. ISPA understands the proposed inclusion of section 27A "Registration and other obligations of Internet service providers" as an attempt to limit the liability of ISPs in circumstances where they have taken reasonable steps to prevent access to objectionable/illegal material." The section requires every ISP to register with the Board and then take all reasonable steps to prevent the use of their services for the hosting or distribution of child pornography.
    1. Our comments with respect to point (3) above refer. The current definition of ISP in the proposed amendment is too broad as to be unworkable if a requirement of registration is imposed. We again urge an amendment to this definition, to include only those ISPs licensed in terms of the Telecommunications Act, to providing Internet access and services and suggest a definition, other than that of an "ISP" to apply to the other circumstances described above where access is provided by a range of people, by any means whatsoever (e.g. library, public access terminals, etc) to apply to those circumstances.
    2. We urge the Committee to meet with the Department of Communications, and establish a central database for ISP registration, potentially managed by the Independent Communications Authority of SA (ICASA) who is the licensing entity for ISPs. Multiple requirements for registration, emanating from different legislation (e.g. ECT Act) runs the risk that lists will not be up to date and also imposes unnecessary burdens on smaller ISPs who may not have the same resources for compliance with these requirements. If one organization/government department holds a central list for registration, it is more likely to be accurate and reduce the burdens of compliance on ISPs. We envisage here that ISPs could be registered by the licensing entity, ICASA, as part of their license being granted.
    3. We urge to Committee to review the ISPA code of conduct and acknowledge the effective implementation of its procedures as part of the effort to "take all reasonable steps" as required by the proposed section 27A(1)(b).
    4. Our comments re (3)(a)-(c) above, regarding the definition of "Internet Address" refer.
    5. Our comments above regarding accidental access to /unsolicited spam carrying child pornography, refer here, and also with respect to the proposed inclusion of section 30B(1)(b) in the proposed Amendment Bill.

7. We also wish to note that the Internet, as an environment to transmit data, does not inherently condone nor intrinsically carry material of a pornographic nature, but that it - at the same time as being able to transmit questionable material - contains significant promise in the fields of education, health, activism, international communication, trade and commerce. The two cannot be separated or disassociated from each other. Any attempt to over regulate in the former, will have detrimental effects in the latter areas. Once again, we lend our support to the laudable goal of eradicating child pornography, but urge the Committee to ensure that ISPs and other access providers for the public good are realistically protected from prosecution where they have no physical or technological control over certain activities, and where they have taken steps to ensure that such activities are curtailed and eradicated.

We wish you luck in your deliberations and remain at your disposal to assist with any further technical or other aspects of this proposed Bill, and its planned implementation. If the honourable Committee will grant us an opportunity for oral representation at a later stage, we urge you to liaise with Ms. Elaine Zinn, of the ISPA Secretariat at (011) 314-7751 or [email protected]

 

 

 

Sincerely,

 

 

 

 

Greg Massel and Masedi Molosiwa

ISPA Co-Chairs

 

 

 

cc: Mr Michael Ramagoma
Advisor to the Deputy Minister
Home Affairs, Room 1428
Civitas Building
Cnr Andries and Streuben Streets
PRETORIA, 0002
Fax: 012 323-3716