Court Upholds ISPA in Hall of Shame Defamation Case

11 November 2013

Judge provides reasons for ruling against Ketler.

The campaign by the Internet Service Providers’ Association (ISPA) to name and shame spammers received a boost recently when the South Gauteng High Court upheld the organisation’s right to list Ketler Investments (trading as Ketler Presentations) on its Hall of Shame. The Hall of Shame lists those organisations involved in sending spam, and those involved in selling Internet addresses.

Ketler brought an action against ISPA for its listing on the Hall of Shame on the basis that it was defamatory. ISPA argued that the listing was not defamatory but that, if it were, it was justified.
In an important and detailed judgement, Mr Justice Spilg accepted that Ketler’s listing on the Hall of Shame was likely to affect its business reputation negatively.

However, the learned judge went on to argue that as a self-regulating representative body within the framework of the Electronic Communications and Transactions Act (ECTA), and with extended obligations under the Consumer Protection Act, ISPA acted legally because it was able to demonstrate that “the defamatory matter was true and that its publication was in the public interest”.

The judge rejected Ketler’s argument that its listing on the Hall of Shame infringed its constitutional right to freedom of expression because it had failed to demonstrate how ISPA’s actions had affected its right to advertise. Nor had it provided evidence to demonstrate that following ISPA guidelines would have led it to incur additional costs or caused its advertising to be less effective. The judge also dismissed certain alleged procedural irregularities related to Ketler’s consent and right to be heard.

“The judgment is a vindication of ISPA’s approach from a legal point of view, but it also shows that this approach is proving effective,” says Graham Beneke, chair of ISPA’s anti-spam working group. “ISPA remains committed to helping ensure that the industry adheres to the highest professional standards. Consumers need to be protected from unscrupulous marketers, but we also firmly believe that adhering to our guidelines makes excellent business sense. Today’s consumers are empowered and increasingly discerning: flooding them with spam will not make them into customers—rather the reverse.”

ISPA defines all unsolicited bulk e-mail as spam unless there is already a prior relationship between the parties and the subject matter of the e-mail concerns that relationship, or unless the receiving party has explicitly consented to receive the communication.