Legal View

Content disputes settled amicably

Read time 2min 30sec

The number of take-down notices (TDNs), whereby affected people or companies ask Internet service providers (ISPs) to remove offending material from Web sites, rose by a marginal two cases, to 46, in 2009, compared to the year before.

According to the Electronic Communication and Transactions (ECT) Act, TDNs are a notification of unlawful activity that must be in writing, and must be addressed by the complainant to the service provider or its designated agent.

In terms of an understanding between the Internet Service Providers' Association of SA (ISPA) and the Ministry of Communications, the association acts as the agent on behalf of its 160 members.

ISPA GM Ant Brooks says TDNs have been recognised by various South African organisations and, especially, legal firms as a cost-effective and reasonable manner to get offending content removed from locally-hosted sites.

“I am actually amazed by how many of the issues are resolved amicably. It seems that South Africans are not as litigious as some other countries. Also, there is not much in the way of hate speech hosted on local sites,” he notes.

Brooks says most of the TDNs issued concern the unlawful use of a company's trademark and content of news stories. A small number have anything to do with hate speech.

Reasons for rejection

ISPA submits an annual report to the Ministry of Communications, providing the total number of TDNs issued and breaks the number down into action taken and the results. This helps the ministry to monitor the effectiveness of the ECT Act in dealing with infringements of the lawful use of Internet content in this country.

According to the ISPA breakdown in 2009, 16 out of the 46 TDNs were rejected by it, because nine of the targets of such notices were not association members. Four were rejected because the content the complainant referred to did not exist. Two were rejected because the content was not sufficiently identified to permit a resolution, and one complaint was rejected because no target ISP was identified by the complainant.

ISPA accepted 30 take-down notices and passed these on to the relevant members. These notices were resolved as follows: in 26 of the cases the content was removed or blocked either by the ISP's client, or by the ISP itself; and four take-down requests were refused by the target ISPs.

Compared to 2008, a greater proportion of notices received in 2009 (71% and 87% respectively) were resolved by the blocking or removal of content.

“In most of these cases, the company or person who had put up the offending content excused themselves by saying things like: 'My Web designer copied this from somewhere or someone else put this on our site without my knowledge',” Brooks says.

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