Legislation of the Internet in SA is under review and local Internet service providers (ISPs) are concerned that the new legislation will prejudice them.
Speaking at the Internet Service Providers Association (ISPA) in Epsom Downs yesterday, Myron Zlotnick, executive head of regulatory affairs at M-Web, said the wording of new legislation may place the onus of responsibility on service providers in matters of child pornography, hate speech and copyright infringements.
"The philosophy of the Internet has always been governed by the right to freedom of speech and access to information. This has been weighted against laws for the protection of minority groups like women and children, as well as reputation, privacy and commercial interests," noted Zlotnick.
At the moment, the Internet is governed by many content laws but is still mostly governed by the Films and Publications act of 1996. Common law also has bearing, especially the defamation and invasion of privacy precedents.
In 1999, the Films and Publications act was amended to include the Internet. Even at this stage the wording of the law was not precise, as the law precluded damaging material being "distributed over a network including, but not confined to, the Internet".
Zlotnick said one of the main problems legislators face is the difficulty of understanding and defining what an ISP is, what it delivers and what it is responsible for.
He added that the chain of liability from author, editor, publisher, owner, distributor and end-user is at best ill-defined.
According to Section 27 of the Films and Publications act, any person who knowingly produces, imports or is in possession of a publication or film that contains a visual presentation of child pornography shall be guilty of an offence.
Zlotnick said this act can make an ISP an easy target, as it may have unwittingly distributed e-mail or hosted a site that contains illegal material.
The proposed revision of Section 27 is just as unclear, as the revision describes an ISP as "any person who provides access to the Internet".
The revision says that if an ISP becomes aware of services being used to host or distribute child pornography, it will have to take "reasonable steps" to prevent access, report particulars of the host and maintainer of the site and furnish particulars of users who gained access to the site to the police.
Zlotnick said the revision not only requires ISPs to go to huge expense to monitor access, but that this may be impossible given the rapid technology changes in encryption.
He is adamant that ISP players should not allow government to make them easy targets for liability and prosecution.
"In my view, these [amendments] must be resisted in the strongest possible terms. We need further debate within the ISPA, and should consider engaging the lawmakers in an attempt to educate them on the nature of an ISP`s business."
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