Regulation on Content distribution By William Stucke (ISOC-GP) AfPIF 2015, 27 Aug 2015

1. Content Liability and
Censorship
A review of the South African situation
William Stucke
AfPIF-6
August 24-28, 2015 AfPIF 2015, MAPUTO - MOZAMBIQUE 1
#include std-disclaimer

2. Electronic Communications & Transactions Act
• ECT Act, #25 of 2002
• Chapter III: Facilitating Electronic Transactions
• Was crucial in that it gave legal recognition to data messages
• Chapter VII: Consumer protection
• Provided a legal basis to outlaw spam
• Chapter VIII: Protection of Personal Information
• Chapter X: Domain Name Authority and Administration
• Caused huge controversy
• This was eventually resolved with the establishment of the zaDNA
• Which largely adopted the principles previously reached by NameSpace
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3. Electronic Communications & Transactions Act 2
• Chapter XI: Limitation of Liability of Service Providers
• Gave “mere conduit” limitation of liability to ISPs, provided: -
• Member of an Industry Representative Body, which enforces:
• Code of Conduct
• Notice & Take Down Procedure – no liability
• ISPA recognized as an IRB by Gen. (Rtd) Siphiwe Nyanda in May 2009
• “General Surprise”
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4. ISPA take-down stats 2014
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5. ISPA take-down stats 2014
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6. Electronic Communications & Transactions Act 3
• Other chapters tended to be ignored in the controversy of Chapter X
• IV: E-Government Services
• V: Cryptography Providers
• VI: Authentication Service providers
• IX: Protection of Critical Databases
• XII: Cyber Inspectors
• XIII: Cyber Crime
• Most of these chapters remain only partly or even un-implemented,
13 years later
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7. Other relevant legislation
• Film & Publications Act, #65 of 1996
• Classifies films, games & publications
• Amended in 1999, 2004, 2009, 2014
• ISPs must register with the FPB, renew annually
• Independent Communications Authority of South Africa Act, #13 of 2000
• Regulation of Interception and Provision of Interception Related
Information Act, “RICA”, #70 of 2002
• Defines a “service provider” as anyone who provides Internet Access to anyone else
• Required ISPs to spend millions installing interception equipment
• All service providers must “RICA” their customers
• There are additional requirements for service provided using SIMs
• Means that 100,000 supermarket cashiers have access to your personal identification
data – wonderful opportunities for identity theft
• Electronic Communications Act, #36 of 2005
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8. Draft Online Regulation Policy
• Draft Online Regulation Policy – March 2015
• Attracted widespread criticism for over-wide ambit
• Usual excuse: “in order to protect children from being exposed to disturbing and
harmful media content in all platforms (physical and online)”
• No outcomes of hearings, criticisms or submissions have been published
• Lack of public consultation
• Badly written
• Unconstitutional, unlawful and unimplementable
• Intentional conflation of pornography and CSAM
• McDonald’s is an ISP but Vodacom isn’t
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9. Film & Publications Amendment Bill, 2015
• Film & Publications Amendment Bill, 2015, approved by Cabinet –
August 2015
• Not yet published
• Not yet reached Parliamentary Portfolio Committee on Communications
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10. FPB Amendment proposals
• Obligations on ISPs to filter content
• “Online distributor” must register and pay an annual fee
• “Online distributor” may self-classify, but must pay a “per-title” fee
• Must display the FPB Logo and classification “prominently”
• Applies to anyone who provides content accessible in South Africa. E.g.
• New York Times?
• BBC?, YouTube?, etc.?
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11. We should be proactive…
• Accept that there will be some form of online content
control imposed in South Africa (and that it will be badly
done)
• Recognise that all who participate in and rely on online
content have a shared responsibility
• Self-regulatory and co-regulatory models
• Develop and push educational campaigns at parents,
teachers and children
• Importance of Internet intermediary neutrality
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12. August 24-28, 2015 AfPIF 2015, MAPUTO - MOZAMBIQUE 12

13. Thank you
William@stucke.co.za
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