WILMAP: South Africa


LEGISLATION

Guidelines No. 29474/2006, December 14, 2006, Guidelines for the Recognition of Industry Representative Bodies of Information System Service Providers
 
[Setting forth some general principles (section 2), minimum requirements (section 5) and some preferred requirements (section 6) for the codes of conducts to be adopted by industry representative bodies].
 
Act N. 25/2002, July 31, 2002, Electronic Communications and Transactions Act
 
[(1) Introducing liability limitations for mere conduit (section 73), caching (section 74), hosting (section 75) and information location tools (section 76).
 
(2) The conditions to fall under these categories differ from the corresponding provisions in Europe since they require complainants to use a specific procedure of notice and takedown (described in section 77), but at the same time differ from the provisions in the United States as they require such specific procedure to be followed only in case of hosting and caching, and not for information location tools.
 
(3) Furthermore, the limitations are partial as they do not extend to injunctions - and in the case of hosts and information location providers to criminal liability as well - and do not affect obligations of service providers founded on an agreement, a licensing or regulatory scheme or any other obligation imposed to remove, block or deny access to any data message (section 79).
 
(4) But the most distinctive feature of this regime is the conditioning of any liability limitation to the membership of an industry representative body recognized by the Minister of Communications (section 72), provided that membership is subject to adequate criteria, that its members are subject to a code of conduct, that such code requires continued adherence to adequate standards of conduct and that the representative body is capable of monitoring and enforcing compliance adequately (section 71)].
 
Act No. 4 /2000, February 9, 2000, Promotion of Equality and Prevention of Unfair & Discrimination Act
 
[Establishing civil liability for any person found to disseminate, broadcast, publish or display any content that could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate against any person (section 12); and civil as well as potentially criminal liability (upon discretion of the Director of Public Prosecution) for any person who is found to “publish, propagate, advocate or communicate words based on one or more of the prohibited grounds (i.e., race, gender, disability), against any person, that could reasonably be construed to demonstrate a clear intention to (a) be hurtful; (b) be harmful or to incite harm; or (c) promote or propagate hatred (section 10)].
 
Act No. 65/1996, November 8, 1996, Film and Publications Act
 
[Establishing the obligation of IAPs, subject to criminal sanctions (section 27 (A) (4)), to: (a) register with the Board in the manner prescribed by regulations made under this Act; (b) take all reasonable steps to prevent the use of their services for the hosting or distribution of child pornography (section 27 (A) (1)); (c) upon discovery of the use of their services to host or distribute child pornographic material, report to the police 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; and (c1) take all reasonable steps to preserve such evidence for purposes of investigation and prosecution by the relevant authorities (section 27 (A) (2)].
 
Act No. 98/1978, June 20, 1978, Copyright Act 
 
[Subjecting to liability for damages, interdict, delivery of infringing copies (section 24)… “any person who…does or causes any other person to do … any act which the owner has the exclusive rights to do or to authorize” (section 23) to criminal liability “any person who … without the authority of the owner of the copyright: … distributes … to such an extent that the owner of the copyright is prejudicially affected, articles which he knows to be infringing copies of the work (section 27)].
 

SELF-REGULATION

 
[Establishing wide-ranging obligations in terms of freedom of expression (section A), privacy and confidentiality (section B), consumer protection (section C), standard terms and conditions (section D), spam (section E), cybercrime (section F), protection of minors (section G) and removal of content (section I) In addition, the Code provides that members must “conduct themselves lawfully at all times and …co-operate with law enforcement authorities where there is a legal obligation to do so”, …”respect intellectual property rights and not willingly infringe such rights”…as well as “uphold and abide by this Code of Conduct and adhere to the associated complaints and disciplinary procedures”(section H). In this respect, the Code proscribes that ISPA members must receive and investigate complaints (provided that they are not frivolous, unreasonable, vexatious or in bad faith) and make all reasonable efforts to resolve them in accordance with the complaints procedure, and empowers ISPA to initiate investigations and institute disciplinary proceedings on its own initiative (section K)]. 
 
 
[Detailing a specific timeline and procedure for members to respond to notices submitted in accordance with section 77 of the Electronic Communications and Transactions Act]. 

BILLS AND LEGISLATIVE PROPOSALS

Draft bill [not yet introduced into Parliament], August 26, 2013, Draft Policy Framework on Combating Hate Crimes, Hate Speech and Unfair Discrimination
 
[(1) establishing the concept of hate crime in South African criminal law; (2) making other forms of unfair discrimination a crime; and (3) developing measures to combat hate crime, hate speech and unfair discrimination].
 
Bill No. 35821/2012, October 26, 2012, amending the Electronic Communications and Transactions Act
 
[(1) introducing into the notice and takedown procedure identified in section 77 the opportunity for the ISP (and not the alleged infringer) to respond in writing to a first take-down notice within 10 business days (but the period may be reduced in cases of urgency), and the obligation for the complainant to give due consideration to such response; 
 
(2) empowering the complainant to issue a so called “final takedown notice”, if the complaint has not been resolved to his satisfaction or if no response is received in the above mentioned time period; 
 
(3) establishing  potential liability “for a related offence” (sic!) when a service provider does not comply with a final takedown notice within 10 business days].

DECISIONS

Superior Courts

Supreme Court, Sankie Mthembi-Mahanyele v Mail & Guardian Limited, 2004 (6). SA 329 (SCA), August 2, 2004
[defamation; liability; defense, reasonableness]
 
[Clarifying that whether the publication of a potentially defamatory comment is “fair” or “reasonable” depends on the relevant circumstances, such as the interest of the public in being informed; the manner of publication; the tone of the material published; the extent of public concern in the information; the reliability of the source; the steps taken to verify the truth of the information; and whether the person defamed has been given the opportunity to comment on the statement before publication].
 
Constitutional Court, Khumalo and Others v Holomisa , [2002] ZACC 12; 2002 (5) SA 401; 2002 (8) BCLR 771, June 14, 2002
[defamation; liability; media; negligence-based]
 
[Recognizing that the mass media have a particular role in the protection of freedom of expression — to ensure that individual citizens are able to receive and impart information and ideas — and are thus bearers of both constitutional rights and obligations. Differentiating for this reason media defendant from ordinary members of the public, which can rely on the absence of animus injuriandi as a defense, and concluding that liability of media for defamation should not be limited to proven falsehood, but should rather be based on negligence]. 
 
Supreme Court, National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA), September 29, 1998
[defamation; liability; excusable error; negligence
 
[Identifying two defences from liability for defamation: (1) that defamatory comments were true and of public interest contents of a defamatory statement were true and their publication to the benefit of the public; and (2) where it can be proved that, although the statement was not true, publication was nevertheless reasonable].
 

High Courts

South Gauteng High Court, Ketler Investments CC t/a Ketler Presentations v Internet Service Providers Association, (2012/1249) [2013] ZAGPJHC 232 , September 19, 2013
[defamation, liability, spam, code of conduct, truth defense
 
[Finding that publication of the name of the applicant in the “Hall of Shame” list of spammers by the Internet Service Providers Association (ISPA) was justified by its true character and by the public interest served by the publication. This decision by ISPA was based on the definition of spam contained in its code of conduct, which supplements the generic notion of spam identified by section 45 of the Electronic Communication and Transactions Act and does not afford non-members an opportunity to be heard before being included in such list].
 
South Gauteng High Court, H v W, (12/10142) [2013 ZAGP JHC 1; 2013 (2) SA 530 (GSJ) 2013 (5) BCLR 554 (GSJ); [2013] 2 All SA 218 (GSJ), January 30, 2013
[defamation; injunctive relief; no injunction against ISP]
 
[Ordering a user to remove defamatory content, but declining to enjoin the respondent from posting any information pertaining to the applicant on Facebook or any other social media, and declining to order Facebook to remove specific material from a user’s webpage (but raising the question of whether the police would have the competence to do so upon failure to act by the user)].
 
South Gauteng High Court, Tschilas and Another v Touch Line media (Pty) LTD,  2004 (2) SA 112 (W), June 26, 2003 
[defamation; safe harbor; information service provider]
 
[Rejecting the safe harbor defense of section 75 of the Electronic Communications because respondent does not fall within the definition of “service provider”, as it is instead the means to obtain access to an information service provider].
 

Lower Courts

Cape Provincial Division, Arthur E Abrahams & Gross v Cohen and others, 1991 (2) SA 301 (C) 
[copyright; indirect liability; requisite foreseeability]
 
[Ruling that indirect liability arises when a copyright owner suffers an economic loss that was foreseeable by a defendant who was under a legal duty to prevent it].
 
Transvaal Provincial Division, Paramount Pictures Corporation v Video Parktown North (Pty) Ltd, 1986 (2) SA 623 (T)
[copyright; requisite knowledge; reasonableness]
 
[Finding sufficient to trigger liability the notice of facts that would suggest to a reasonable person that a copyright infringement was being committed].

OTHER RESOURCES