There needs to be a balance between combatting the growing number of online threats in South Africa and maintaining the essential neutrality of Internet service providers (ISPs). This is according to South Africa’s Internet Service Provider Association (ISPA).
Government’s proposed Cybercrimes and Related Matters Bill and the Film & Publications Board’s draft online content regulation strategy are two examples of documents under discussion that have the potential to significantly impair ISP neutrality.
ISPA represents the interests of its over 175 members which comprise small, medium and large ISPs, as well as related organisations such as academic institutions which enjoy affiliate membership. When it comes to these interests, ISPs – in order to continue operating as viable commercial entities – need to protect both freedom of expression and the right to users’ privacy. Both rights are, of course, enshrined in our Constitution.
“Regarding an ISP as controlling the content flowing over its network or making ISPs jointly liable with customers for unlawful acts is based on a fundamental misunderstanding of what an ISP is and sets the sector down a problematic path,” explains Dominic Cull, ISPA regulatory advisor.
“An ISP is no more responsible for content on its network than the Post Office is responsible for the content of letters circulating through the postal system,” says Cull. “No one expects that the Post Office should be fined for an inflammatory letter sent by one user of the postal system to another,” he adds.
This is recognised in Chapter 11 of the Electronic Communications and Transactions Act of 2002, which describes ISPs as “mere conduits” for the information their networks carry and explicitly states that they are not obliged to monitor the content flowing over their networks.
When it comes to the restriction of content on the Internet, ISPA believes that the principles set out in the recent Manila Intermediary Liability Principles must be observed:
“Intermediaries should be shielded by law from liability for third-party content, Content must not be required to be restricted without an order by a judicial authority Requests for restrictions of content must be clear, be unambiguous, and follow due process, Laws and content restriction orders and practices must comply with the tests of necessity and proportionality, Laws and content restriction policies and practices must respect due process, and Transparency and accountability must be built into laws and content restriction policies.”
“Increasingly members of the public and organisations are exercising our fundamental rights to freedom of speech and privacy within the online environment. It is vital for South Africans to appreciate that their ISPs should be allowed to maintain their neutrality if their Constitutional rights are to be protected,” concludes Cull.