TELKOM'S SUBMISSIONS

ON THE FILMS AND PUBLICATIONS AMENDMENT BILL, [B61] 2003

INTRODUCTION

1.1 Telkom welcomes the opportunity to comment on the Films and Publications Amendment Bill, 2003 of which an explanatory summary was published in Government Gazette 25421 (Government Notice 1256 of 1 September 2003).

1.3 Telkom supports the intention of the Films and Publications Act and the Amendment Bill, which is to prohibit child pornography so as to create a safe society in which our children can thrive and contribute positively to the growth of our Nation.

1.4 It is however felt that the Bill has certain unintended consequences for telecommunications service providers, which we would like to address. For that reason Telkom would like to present it's concerns on the Bill before the portfolio committee on 18 November 2003

 

LEGISLATIVE CONTEXT AND THE BILL'S RELEVANCE TO TELECOMMUNICATIONS SERVICE PROVIDERS

2.1 The Films and Publications Act 34 of 1999 defines a "film" as including 'any sequence of visual images' and 'any picture intended for exhibition through the medium of any mechanical, electronic or other device.'

2.2 Similarly, in terms of the Act a "publication" includes 'any writing or typescript which has in any manner been duplicated' and 'any message or communication, including a visual presentation, placed on any distributed network including, but not confined to, the Internet.'

2.3 Due to the rather expanded definitions of the terms "film" and "publication", the Act, as well as the amendments contemplated applies to telecommunications operators and value added telecommunications service providers as much as it has implications for publishers and broadcasters r; especially in so far as it relates to temporary storage and cashing.

2.4 Indeed, what telecommunications service providers ordinarily do, includes the conveyance of sequences of visual images, or in fact for that matter pictures intended for exhibition through the electronic cum telecommunications medium. They also place messages or communications on distributed networks, and in the case of value added service providers the conveyance and reticulation process of text would typically involve the duplication of writing or typescripts.

2.5 Telecommunications service providers can therefore be be party both to the possession and distribution of films and publications.

 

THE DEFINITION OF 'DISTRIBUTE'

    1. The proposed section 1(c) defines 'distribute' as follows:
    2. "in relation to a film or a publication, without derogating from the ordinary meaning of that word, includes to sell, hire out or offer or keep for sale or hire and, for purposes of sections 25(a), (b) and (c), 26(1)(a) and (b) and 28(1) and (2), includes to hand or exhibit a film or a publication to a person under the age of 18 years, and also the failure to take reasonable steps to prevent access thereto by such a person;''

    3. The fact that the term "distribute" could also mean 'the failure to take reasonable steps to prevent access' to restricted material in terms of the Act to persons under the age of 18.
    4. 3.2 This is particularly problematic for telecommunications service providers who are unable to determine the age of persons at telecommunications termination points. Legislation such as the privacy clause of the Constitution and the Regulation of Interception Act also effectively prohibits surveillance of content by service providers. The service providers would therefore often never know whether or not content conveyed or stored is of a restricted or prohibited nature.

    5. Hence, Telkom proposes the insertion of the following qualifier to the definition of "distribute" in the Bill; which would prevent a contravention of existing legislation and avoid the impossibility of performance:

"all persons or entities licensed to provide telecommunications services in terms of the Telecommunications Act, are expressly excluded from the obligations imposed in terms of the definition".

 

THE DEFINITION OF 'POSSESSION'

    1. The proposed section 1(e) defines "possession" as:

'in relation to a film or publication, without derogating from its ordinary meaning, includes 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;'

4.2 Telkom is concerned with the fact that, inasmuch as service providers may act as mere conduit or host, it often cashes or stores data temporarily on computer systems or computer data storage mediums, and could consequently be liable in law for being in possession of restricted or prohibited material.

4.3 From the nature of the business of telecommunications licensees, the consequences that could conceivably attach to being in possession of child pornography would create unreasonable and unintended liability for telecommunications service providers. In that sense it also conflicts with the Electronic Communications Act, which seeks to exclude liability for service providers acting as mere conduit or host.

    1. Telkom suggests the inclusion of the following qualification to the definition of "possession" in the Bill:

"persons licensed to provide telecommunications services in terms of the Telecommunications Act shall be deemed not to be in possession of prohibited material in so far as such possession is solely for the rendition of telecommunication services in terms of the Act"

 

THE OFFENCE OF BEING 'IN POSSESSION'

5.1 In terms of section 27(1)(a):

"Any person shall be guilty of an offence if he or she-

(i) is in possession of a film or publication which contains child pornography or which advocates, advertises or promotes child pornography or the sexual exploitation of children."

5.2 As indicated earlier in the submission, the liability consequences provided for in the Bill would be unintended and inequitable for telecommunications service providers that are merely responsible for conveyance of communications or for hosting, be it in the form of data, film or publication.

5.3 Telkom's proposed rendition of being in "possession" would have the effect of exonerating telecommunications service providers from statutory liability resulting from being in possession of child pornography. That is provided that no fault or prior knowledge can be attributed to the service provider concerned.

 

THE OFFENSE OF A FAILURE TO REPORT

    1. In terms of section 27(2)(a):

"A person shall be guilty of an offence if he or she, having knowledge of the commission of an offence under subsection (1) or having reason to suspect that such an offence has been or is being committed-

(i) fails to report such knowledge or suspicion as soon as possible to a police official of the South African Police Service; or

(ii) fails to furnish, at the request of an official of the South African Police Service, all particulars of such knowledge or suspicion."

6.2 Although the rational for the obligation is appreciated, the fact that a mere suspicion must be reported and that an ordinary police officer could make impositions on service providers could be operationally disruptive.

6.3 It is suggested that any suspicion should be reasonable, and that any request made in terms of this section must be furnished only by an official above a certain prescribed rank

6.4 Moreover, the legislator should consider whether it actually seeks to attribute a policing or surveillance function to telecommunications service providers.

 

THE OBLIGATION TO TAKE REASONABLE STEPS TO PREVENT ACCESS

    1. In terms of the proposed section 27(3):

''Any person who has under her or his control any material referred to in Schedule 1, 2, 6 or 7 and who fails to take all reasonable steps to prevent access to such materials by a person under the age of 18 years shall be guilty of an offence.''

7.2 It is arguable whether or not telecommunications service providers could be in control of prohibited or restricted content. It is however conceivable for a service provider to be in possession or control of such material and yet to be unaware of it.

7.3 Service providers are prohibited under law from surveying or peering into content. It would therefore be highly unreasonable to hold unsuspecting service providers liable in terms of this section, by means of a provision tantamount to that of creating strict liability.

    1. In the circumstances it is suggested that the following provision be included as a sub-paragraph to section 27 of the Bill:

"all persons licensed to provide telecommunications services in terms of the Telecommunications Act, are exonerated from liability that may result from being in control of prohibited or restricted material in terms of the Act in the course and scope of rendering licensed telecommunications services."

 

REGISTRATION AND OTHER OBLIGATIONS OF INTERNET SERVICE PROVIDERS

8.1 The proposed section 27A provides that:

'' Registration and other obligations of Internet service providers

(1) Every Internet service provider shall-

(a) register with the Board in the manner prescribed by regulations made under this Act; and

(b) take all reasonable steps to prevent the use of their services for the hosting or distribution of child pornography.

(2) If an Internet service provider has knowledge that its services are being used for the hosting or distribution of child pornography, such Internet service provider shall-

(a) take all reasonable steps to prevent access to the child pornography by any person;"

(b) report the presence thereof, as well as the particulars of the person maintaining or hosting or distributing or in any manner contributing to such Internet address, to a police official of the South African Police Service; and

(c) take all reasonable steps to preserve such evidence for purposes of investigation and prosecution by the relevant authorities.

(3) An Internet service provider shall, upon request by the South African Police Service, furnish the particulars of users who gained or attempted to gain access to an Internet address that contains child pornography.

(4) Any person who fails to comply with the provisions of this section shall be guilty of an offence.''

8.2 Telkom is unable to see how the obligation for Internet Service Providers to register with the Films and Publications Board would serve any useful purpose to limit or restrict access to offensive material.

8.3 In so far as taking reasonable steps to prevent the use of their services for the hosting or distribution of child pornography, the installation of filtering and the imposition of contractual and statutory obligations on content providers seem to be the only measures service providers can effectively rely on in this respect.

8.4 Finally, it is self evident that if any obligation to prohibit or restrict access or to exercise care were to be created; be it in the form of filtering or otherwise, it would raise questions of degree and will of necessity have to be much more closely defined for operators to make any sense of it. In that sense, the level or degree of filtration if any must be prescribed and cannot reasonably be left to the discretion of the respective service providers.

 

 

 

 

 

 

 

 

 

 

CONCLUSION

9.1 Firstly, it is submitted that the real matter in issue, is one of content rather than that of the conveying or hosting content.

9.2 Secondly, because no licensed telecommunications service provider is permitted to create content by virtue of its license, it is proposed that no strict liability should arise for any such service provider in the course of its rendering telecommunications services under and by virtue of the Telecommunications Act, and

9.3 Thirdly, it is suggested that because of inherent complexities and the sheer volume of telecommunications traffic on networks, it would be both impractical and unreasonable to impose any obligation on service providers to survey or police content.