Publishers’ association of south africa

Internet service provider’s limited liability for copyright infringement

Section 75 of the Electronic Communications and Transactions Act 25 of 2002 states that:

(1) A service provider that provides a service that consists of the storage of data provided by a recipient of the service, is not liable for damages arising from data stored at the request of the recipient of the service, as long as the service provider-
a. does not have actual knowledge that the data message or an activity relating to the data message is infringing the rights of a hird party; or
b. is not aware of facts or circumstances from which the infringing activity or the infringing nature of the data message is apparent;

and
c. upon receipt of a take-down notification referred to in section 77, acts expeditiously to remove or to disable access to the data.
(2) The limitations on liability established by this section do not apply to a service provider unless it has designated an agent to receive notifications of infringement and has provided through its services, including on its web sites in locations accessible to the public, the name, address, phone number and e-mail address of the agent.
(3) Notwithstanding this section, a competent court may order a service provider to terminate or prevent unlawful activity in terms of any other law.
(4) Subsection (1) does not apply when the recipient of the service is acting under the authority or the control of the service provider.
In short, the above section protects an Internet service provider (ISP) from copyright infringement claims based on content hosted on behalf of a third party.
However, the definition of an ISP is very restricted and will only include true ISPs such as M-Web, World Online and IOL. In our opinion, many other entities in South Africa host third party content available to he public – for example university research databases or content provided electronically by the CSIR. These entities should also be afforded the limited liability detailed in section 75 above, because they provided valuable content resources and cannot, like ISPs, check whether the content may infringe third party copyright. We suggest that the limited liability should be extended on the same conditions as detailed in section 75(1) above.

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