The Gauteng Gambling Board is under fire for asserting companies that aid online gambling, which was recently declared illegal, could face fines of up to R10 million.
After the High Court ruled in August that online gambling was illegal, the board issued a statement saying anyone who “facilitates the provision of online gambling”, including Internet service providers (ISPs), faces fines of up to R10 million.
However, ISPs are hitting back, arguing they cannot police the Internet without spending millions on new infrastructure, and it's not their job to monitor content in the first place. The court ruling is set to be appealed, although it is not known when the matter will be heard in Bloemfontein.
Paul Jacobson, digital media lawyer, says the biggest problem with the board's statement is the practicality of monitoring traffic, and the infrastructure that would be required to do so. The board is trying to get ISPs to do its work for it, which is “like asking Eskom to make sure only TVs that are licensed are plugged in,” Jacobson explains.
South African law protects ISPs because they are regarded as carriers and not content providers by the Electronic Communications and Transactions Act, Jacobson adds. As long as ISPs are “hands off”, they cannot be punished for the content they carry, he says.
Unconstitutional
Vox Telecom chief commercial officer Murray Steyn says asking ISPs to monitor traffic would be unconstitutional, and falls foul of the Regulation of Interception of Communications and Provision of Communication-Related Information Act.
However, should the board try and practically hold ISPs accountable, it would place a “massive burden” on service providers. “We would have to search the content of all of our customers' communications to make sure no online gambling had taken place.”
Steyn warns that the cost of adhering to the board's requirements would result in smaller ISPs folding, leading to a less competitive landscape. The cost of monitoring gambling would be prohibitive, and this additional expense would be passed onto the consumer, he adds.
Vox would fight the board should it try to impose the requirement that ISPs be held accountable for facilitating online gambling, but this would be done through the Internet Service Providers' Association (ISPA).
Opening floodgates
Henk Kleynhans, chairman of the Wireless Access Providers' Association, explains that because ISPs work like tollgates, holding ISPs accountable for what people do online would be like “having a tollgate attendant search through your car every time you drove through a tollgate”.
Kleynhans, who is also founder and CEO of Skyrove, adds that “prohibition of any kind always leads to underground, untaxed and unscrupulous operators taking over”.
The board's desires could result in a costly court battle, or ISPs will end up educating the board on “technology, human rights and history,” he adds.
Edwin Thompson, GM of technology and infrastructure at MTN Business, points out that if ISPs are expected to be held accountable for facilitating online gambling, then so should the next layer of providers, such as Telkom.
The board is “taking it too far” to hold ISPs accountable for when people use their service to gamble online, says Thompson. Should the board's position place an additional burden on ISPs, MTN Business would want to take part in the process and provide input, he comments.
Not regulators
Ant Brooks, ISPA GM, notes that it is wrong to characterise ISPs as “facilitating” access to online gambling services because ISPs provide services that allow access to the Internet, and do not regulate how people use that access.
The exception to this, says Brooks, is where child pornography or child sexual abuse images are involved, in which case ISPs act in accordance with the law.
Brooks states that ISPA's code of conduct requires members to take down locally-hosted material when there is a valid takedown notice. However, “there is no legal framework or mechanism for blocking content,” he says.
ISPA wants to engage with the Gauteng and National Gambling Boards to clarify the matter, says Brooks.
No one from the Gauteng Gambling Board was available this morning to comment, and a previous call was not returned.
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