What is a takedown notice?
A takedown notice is a procedure set out in section 77 of the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”) that provides for a process to request that unlawful content on a website be removed from the internet. A takedown notice is initiated by the person alleging that the content is unlawful as a result of the content being their information which they have not consented to displaying on the website or where the content infringes your copyright. Often, the offending content is a photograph or personal information, such as credit card or banking details.
What is ISPA (The Internet Service Providers’ Association)?
ISPA was established in 2002 in terms of chapter 11 of the Electronic Communications and Transactions Act 20 of 2002 (“ECTA”) and is as a result classified as an Industry Recognised Body (“IRB”). ISPA only has jurisdiction over its members and membership is voluntary. Members of ISPA are those entities that operate as Internet Service Providers (“ISP”) in South Africa and joined ISPA.
The function of ISPA with regard to takedown notices is of an intermediary nature, as ISPA merely checks that applications are complete, that the ISP is a member and that the remedy requested is feasible. If the application complies, ISPA forwards it on to the applicable ISP who responds either by removing the content or by refusing the request. Most correspondence occurs between the ISP and ISPA, however, the ISP may contact the complainant directly as well.
What ISPA considers
The first thing ISPA looks at is whether the ISP is registered as a member of ISPA. If the ISP is not, then ISPA will not be able to assist with the takedown application. ISPA also does not assess the validity of the allegation in the takedown notice, i.e., ISPA will not consider the legality or lawfulness of the allegation.
Is ISPA effective in South Africa?
ISPA does seem to be effective in South Africa. Its website contains statistics, dating back to 2006, showing, amongst others, the number of takedown requests lodged, the outcomes of such requests and the reasons for rejected requests. For more information in this regard, please see the website. In cases where the content on the website is obviously unlawful or problematic the website or content is usually removed immediately.
However, ISPs are not required to comply with takedown notices. If they refuse, they may run the risk of incurring liability in terms of the common law, but this may be a low risk. In circumstances where the ISP wants the content to stay up, the ISP must indemnify ISPA against any and all liability that may arise from the content.
How to request a takedown notice
Requests must be made to ISPA in writing and include the following information:
- Your information: name, address, contact number and email;
- The service provider against who you are making the complaint;
- A clear identification of the unlawful or problematic content, including the URL and an optional screenshot of the content;
- A description of the right that you think has been infringed;
- The remedy that you seek;
- This remedy should be reasonable and should not request the entire website to be taken down
- A statement that the content of your complaint is true and correct to your knowledge and that you are acting in good faith; and
- Your signature.