Notice and Take Down or Notice and Notice and Take Down?

Written by Andrew Rens on November 30th, 2012

South Africa currently has a notice and take down regime for online content. Service providers which cache content are able to avoid liability if they comply with the provisions of the 2002 Electronic Communications and Transactions Act, specifically section 77 which required them to take down content on receipt of a take down notice that had specific information.

Obviously that provision was unconstitutional since it enabled private person to effectively remove speech that he did not agree with from public view. The South African Department of Communications has proposed am mending the provision by including a new provision, section 77A to the proposed Electronic Communications and Transactions Act Bill.

The proposed set up is that a complainant would send a notice to a service provider which would be obliged to reply to at least the grounds of the complaint. The complainant would then decide if he was satisfied and if not send a final notice of take down whereupon the service provider would have to take the content down or lose its protection from liability.

The rationale for the proposed amendment is set out in the Explanatory Memorandum (available at MyBroadband but not on the DoC site)

” 12.5 After further consideration, the Minister considers that any notice or take-down procedure should allow for the right of reply in accordance with the principle of administrative justice and the audi alteram partem rule. Changes have been proposed in this regard to section 77 and a new section 77A is proposed.”

Of course a provision that requires an ISP to answer to a complainant but does not give notice or an opportunity to respond to the content provider does not comply with the audi alteram partem (hear the other side) rule at all. The proposal is as unconstitutional as the current section. A notice and notice provision such as that about to be adopted by Canada seems as if it would be a better fit for South Africa.

Submissions to the Department of Communications on the Bill can be made by 7 December 2012. They can be addressed to: palesa@doc.gov.za

 

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