2.1 MTN notes that the definition of Internet Service Providers (ISP's) is couched too widely to include "any person who provides access to the internet by any means". MTN IS able through GPRS to provide access to the Internet. MTN can therefore in terms of this Bill be defined as an ISP and could have imposed on it all the obligations imposed on ISP's.

2.2 The problem of child pornography however rests not with the fact that MTN can enable access to the internet as in doing so MTN does not in itself produce, distribute or offer child pornography. All MTN does is to enable its subscribers to access as many sites on the internet as possible and cannot thereafter control which sites the subscribers access. MTN in a nutshell does not have control or even knowledge of the content that is distributed on its network by its subscribers once they have accessed any particular site on the internet.

2.3 MTN is therefore a mere conduit or a medium that is used to access such sites. It is the people who control such content i.e. the subscribers themselves who ought to be regulated from accessing the prohibited child pornographic sites.

3.1 All ISP's are in terms of this Bill required to register with a Board and shall take all reasonable steps to prevent the use of their services for the hosting or distribution of child pornography, to take reasonable steps to prevent access to child pornography, retain evidence of people who do and furnish particulars of users who gain or attempt to gain access to an internet address which contains child pornography.

3.2 Whilst MTN understands the rationale that these provisions in the Bill are premised on there are however various practical difficulties that the Committee ought to be aware of that relate to the proposed provisions. The first of these is that MTN is a mobile operator that offers amongst other things internet access to its pre-paid customers. The historical reality of this service has been that Mobile Operators were never required to obtain details of their pre-paid customers and the consequent result is that MTN does not have any details of the millions of its pre-paid customers. The requirement therefore relating to provision of such people's details would be impossible to comply with.

3.3 Furthermore because MTN as an Operator does not have any control on the content it cannot consequently prevent access to child pornography by any person. The requirement therefore in the Bill that MTN should prevent such access and preserve evidence relating to access is also impossible to comply with.

3.4 In relation to the registration by ISP's with the Board MTN would like to draw to the Committee's attention that the ECT Act already requires the registration of ISP's. MTN would in this regard urge that a central registration base be created so as to ensure that there is uniformity in terms of registration details and database.

4.1 The Bill also makes it an offence to broadcast, export, distribute or cause to be distributed film or publication which contains child pornography. Again whilst the rationale of this provision is understood it must be borne in mind that MTN as a medium or a simple conduit for providing access, transmitting, routing or storage of data messages via an information system under its control cannot be held liable for causing to be distributed pornographic material which MTN has no control over.

4.2 This exception and exclusion is recognized in the Electronic and Transactions Act (ECT Act) which establishes limitations on liability to service providers who act merely as conduits. The provisions of the proposed Bill therefore dealing with liability arising from distribution of such materials must be aligned with the provisions of the ECT Act.

5.1 The Bill also sets out that any person who has under his control child pornographic material and who fails to take reasonable steps to prevent access to such material by persons under 18 shall be guilty of an offence. This provision must be read from the background that Mobile Operators cannot in law monitor content that they transmit over their networks. It would therefore be impossible for them to prevent access by persons under 18.

5.2 We again suggest that this provision should be aligned with the ECT Act in as far as this Act deals with hosting of data by service providers. The ECT Act provides that service providers cannot be held liable for storing data at the request of the recipient of the service when such service providers have no actual knowledge of the data concerned.

6.1 The Bill sets out that any person who intends to distribute any film shall submit for classification to the Films Board such a film. Again if not narrowed this provision can mean that MTN should know in advance which material is going to be distributed in its network and thereby seek permission for such distribution. If such approval has not been obtained MTN would be responsible for distribution in its network of publications or films which have not been approved.

6.2 Again the ECT Act must be relied on in couching this provision in such way that it does not extend liability to the service providers who have no knowledge of material distributed on their networks. These service providers should also be excluded from registration with the Films Board as this Board is intended to deal with those operators who distribute material that they have full knowledge and control of.

7.1 It is MTN's view that the provisions discussed above are couched too broadly and as a consequence will have the effect of extending liability of distribution of prohibited material to those operators who in law cannot have knowledge of the content that they distribute and cannot therefore reasonably be able to comply with the proposed provisions of the Bill.

7.3 These provisions will also have the effect of extending liability on network providers for enabling access to child pornographic sites even though network providers would have had no control on such access by its subscribers. These anomalies were recognized in the ECT Act and a chapter dealing with limitation of liability of service providers was introduced to ensure that only persons who have knowledge of content would attract liability.

7.4 We urge the Committee to take this legislation into account in re-examining the provisions discussed herein.