The story of the fight between Martin Hatchuel, who hosts thistourismweek.co.za, Chris von Ulmenstein, a guesthouse owner who commented on one of his posts, and Hetzner, his ISP, is quite entertaining in its own right. Without intending any puns, a lot of dirt got thrown around, in full public view.
Von Ulmenstein wrote a rather nasty comment about the Sant'e Hotel. In response, several other readers pointed to customer reviews and sites such as whale-cottage.com and dirtywhale.com to suggest that she, the proprietor of the Whale Cottage Portfolio, might not be the most credible critic. Among them is at least one allegation - accusing Von Ulmenstein of credit card fraud - that would clearly constitute defamation if it is false.
In response, she followed the Internet Service Providers Association (ISPA) guide for requesting a take-down, and Hatchuel's ISP, Hetzner, promptly acted upon the complaint. It soon reinstated the site with an apology for not having followed the correct procedure, but now wants an indemnity against third-party action from Hatchuel, on pain of taking it down again if he doesn't sign it.
Hatchuel initially refused. When asked why, he told me that he can't understand how he can indemnify his ISP against claims by the aggrieved party, and fears signing away his rights. He added, however, that he is willing to take responsibility for the dispute if that will let Hetzner off the hook in terms of the law. Although he is unhappy with how Hetzner handled the incident and is moving his Web site to another hosting company, he agrees that the ISP shouldn't be in Van Ulmenstein's firing line.
The incident got even nastier when Carl Momberg of capeinfo.com jumped into the fray. Von Ulmenstein responded to him, which prompted another take-down notice, this time against Von Ulmenstein's blog, also hosted by Hetzner. What goes around, comes around, clearly.
Entertaining though this soap opera is, the problem here isn't the enmity between these individuals, or which of them is right. The problem, as usual, lies with the law.
The Electronic Communications and Transactions Act of 2002, in chapter XI, section 77, prescribes a take-down procedure that is badly broken. It implies liability for ISPs that refuse to respond to a take-down notice, and indemnifies them from wrongful take-down in response to a notification they believe to be made in good faith.
The question is why are ISPs involved in the process in the first place?
Ivo Vegter, ITWeb contributor
What do you think a lawyer would say? "Here's a take-down notice. And here's my professional opinion: refuse it at your peril."
The ISPA procedure, which is to receive notices, verify that they are procedurally correct, and pass them on to member ISPs for a decision, was established in the hope that voluntary industry compliance with the law would pre-empt more costly and complex regulation by a government bureaucracy.
The question is why are ISPs involved in the process in the first place?
Hatchuel is himself a journalist, and opposes censorship on his Web site in all cases except hate speech, child pornography or spam. He says: "I've always taken the stand that if you have a problem with something someone says, take it up with them, not with the newspaper in which they said it."
Yet, if you do wish to challenge a newspaper instead of suing the offending party for defamation, you are required to go to court, and show a magistrate good cause why they should prevent publication or order a retraction.
Why does this not hold for a Web site? Surely it is simple enough to petition a magistrate to order a Web site owner to remove offending content or shut the site down if the substance of the complaint has merit?
In this case, no actual defamation was shown, and the circumstantial evidence suggests that Hatchuel is right in allowing the comments to stand until Von Ulmenstein makes and wins a defamation case against the offending commenter. The dispute between his readers has nothing to do with him, and even less to do with his ISP.
A source close to the process, who doesn't wish to be named lest his opinion be interpreted as the official view of ISPA, says the clause was meant to be used for objectionable content such as hate speech or child pornography. Thing is, he says, "we never get anything like that". Of the 160 or so take-down notices received in the last five years, "most are frivolous in some way or another, in my opinion".
The take-down procedure established by the ECT Act unjustly involves ISPs into what should be simple disputes between clients. This leaves Web site owners defenceless against frivolous or vindictive complaints. In terms of judicial principles, it removes the burden of proof from the plaintiff, and makes the respondent guilty until proven innocent.
It may very well be that Von Ulmenstein was defamed by a commenter on Hatchuel's site. If so, she should have the courage of her convictions, ask a magistrate to order Hatchuel to remove the offending comment, and pursue legal action against the person who defamed her.
There are perfectly good legal means available in law to deal with offending content on Web sites. The blunt instrument of take-down notices is wide open to abuse. Section 77 of the ECT Act is broken. It needs to be repealed.
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