Internet Service Providers (ISP’s) are crucial to the operation and development of the Internet. However, through the performance of their basic functions, they faced the great risk of civil and criminal liability for unlawful content posted by third parties. As this risk threatened the potential of the Internet, various jurisdictions opted to promulgate legislation that granted ISP’s safe harbours from liability. The South African (RSA) response is Chapter XI of the Electronic Communications and Transactions Act (ECTA). The protection it provides is however not absolute. It is limited to ISP’s that are members of an Industry Representative Body (IRB) and those ISP’s must perform particular functions in relation to third party content in a certain manner to obtain limited liability. Due to the ECTA’s limited application and a lack of authority, the question is raised as to what is the liability of ISP’s for unlawful content posted by third parties? This dissertation pays particular attention to ISP liability for third party defamatory statements, hate speech, and obscene and indecent material. The role and characteristics of ISP’s in the functioning of the Internet is described. It is determined that a wide legal definition would be required to encompass the many roles they perform. The definition provided by the ECTA is wide and many different types of ISP can fall underneath it. This may have unintended consequences as entities may receive protection that the legislature did not intend. The appropriate laws in the United States of America (USA) and the United Kingdom are surveyed and suggestions as to the extent of ISP liability in circumstances where the ECTA does not apply are made. It is established that their position is uncertain due to difficulties in applying the law to the Internet. This could result in the law being applied incorrectly and ISP’s erroneously found liable. The ECTA’s threshold requirements limit the availability of the safe harbor provisions to ISP’s that are members of a recognised IRB. The IRB must comply with an extensive set of requirements to obtain recognition. The purpose of these requirements is to ensure that only responsible ISP’s obtain the protection provided by the act. After an examination of these requirements, their necessity is questioned as their purpose appears to be contrary to the logic of the safe harbours provided by the ECTA. The safe harbours are analysed and comparisons made to similar legislation that exists in the USA and the European Union (EU). It was established that the ECTA is a hybrid of the USA and EU legislation, and to a certain extent improves on them. It was suggested that the extent of ISP liability in relation to certain unlawful content is clearer under the ECTA. However, exceptions may exist in relation to hate speech and obscene and indecent content as a result of legislation that does not properly take the technology of the Internet into account. It was recommended that certain action be taken to correct this position to prevent any negative effects on the Internet industry and conflict with the objectives of the ECTA. The provision of limited liability contained in the ECTA is balanced with a notice and takedown procedure, which provides relief to victims of unlawful content. This procedure is analysed and it appears to be effective in providing relief. However, through an examination of concerns raised in relation to this type of procedure as it exists in the USA and the EU, it is suggested that certain flaws exist. The take-down procedure negatively effects the freedom of expression and the third party’s rights to due process. Further, the threshold requirements result in not all the users of the Internet being provided with the same remedies. It is recommended that certain action be taken to correct these flaws. The solution provided by the ECTA should be favoured over the uncertainty that existed before it promulgation. It may be necessary to correct particular flaws that exist. Certain recommendations are suggested in this regard and the concluding chapter.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nmmu/vital:10264 |
| Date | January 2010 |
| Creators | O'Brien, N D |
| Publisher | Nelson Mandela Metropolitan University, Faculty of Law |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis, Masters, LLM |
| Format | xvii, 169 leaves, pdf |
| Rights | Nelson Mandela Metropolitan University |
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