Covid-19 Shines Spotlight on Website Take-Downs

16 April 2020

SA’s Internet Service Providers’ Association (ISPA) is advising members that hosting so-called ‘fake news’ websites is prohibited by Clause 11(5) of the Disaster Management Act regulations which makes it an offence to publish any statement with the intention to deceive about COVID-19, someone’s infection status or steps taken by the government to deal with COVID-19.

ISPA says the regulations specific to the ICT define deceptive statements as “fake news” and place an obligation on ECS licensees and ISPs to “remove fake news related to COVID-19 from their platforms.” Any ISPA member hosting a fake news site should act expeditiously to remove that site.

The public can navigate to https://www.real411.co.za/ for SA government-sanctioned information on how to report fake news. ISPA already has a mechanism in place to deal with, inter alia, the hosting of fake news by its members in the form of its existing Take-Down Notice procedure.

This tool provided by ISPA as a recognised Industry Representative Body in terms of the Electronic Communications & Transactions Act, 2002 (“ECT Act”) enables anyone to lodge a Take-Down Notice to request the removal of allegedly unlawful content hosted by any ISPA member. ISPA’s role in the Take-Down Notice process is purely administrative and content submitted for Take-Down must be hosted locally.

While ISPA won’t comment on any specific Take-Down Notice requests, it does publish annual statistics on www.ispa.org.za.

After years of exponential rises in Take-Down Notice requests since the process was established in 2006, last year saw the first decline in the number of requests received to under 240. Over the past five years, a substantial 95% of requests have been expeditiously processed and content removed with 24 hours. Interestingly, no requests to remove social media content were received in 2019 and ISPA is not aware of any wrongful Take-Down Notice requests.

Upon receipt of an administratively correct Take-Down Notice from a complainant, ISPA passes the notice on to the relevant ISPA member, who then makes a decision regarding the removal of the website. Members generally make this decision based on the substance of the complaint, their own terms of use for the website hosting service, and any response their client — the website owner — may provide to the Take-Down Notice.

ISPA’s role is to ensure that a member responds timeously to a Take-Down Notice, but a member is entitled to refuse a particular Take-Down Notice. If a member chooses not to remove the targeted content, ISPA does not and cannot force the removal of a website. An ISP opting not to take a particular site down loses the special limitations on liability set out in the ECT Act, for that website. As per section 77 of the ECT Act, a Take-Down Notice can be any claim of unlawful activity.

Legislation sets out the specific requirements for a take-down notification to be delivered to an ISP. This includes the provision of information identifying the content that is the subject of the complaint and the manner in which it infringes the rights of the person complaining. The complainant must also confirm that the take down request is being made in good faith.

Under section 77(2) of the Electronic Communications and Transactions Act, any person who lodges a notification of unlawful activity knowing that it misrepresents the facts, is liable for damages for wrongful take-down.

Finally, ISPA is also advising non-members who would like ISPA to assist them in handling fake news take-down notices during the current Covid-19 crisis period that they can send their company details and the name and contacts details of their take-down representative to secretariat@ispa.org.za and the ISPA team will make sure that any notices targeted at your company are correctly handled.

NOTES TO EDITORS:

Disaster Management Act regulations
http://www.gpwonline.co.za/Gazettes/Gazettes/43107_18-3_COGTA.pdf

Regulations specific to the ICT sector:
http://www.gpwonline.co.za/Gazettes/Gazettes/43164_26-3_Telecommunications.pdf