The 'protection of the Act' means indemnity from liability.
'We live in a phantom democracy."
When I first heard these words, uttered by writer-critic-iconoclast Ashraf Jamal at a Stellenbosch University research seminar a few weeks ago, I regarded them as yet more unnecessary Safropessimism, despite my own misgivings about our democracy.
Then something happened that made me revise my opinion. Jamal is on the money, at least in one respect: digital freedom of expression in South Africa today is a phantom.
You do not like the Daily Maverick's review of your new novel? Unhappy about abrasive comments on BooksLive by an uppity member of the public about your collected essays, or on Slipnet about your recent live-poetry performance?
Well, unlike novelist Alice Hoffman, who called reviewer Roberta Silman a "moron" on Twitter after Silman published a stinging review of her novel in the Boston Globe, in South Africa you do not have to resort to social networking to take someone down.
You can have any comment you personally deem unfavourable "taken down" through what the Electronic Communications and Transactions Act of 2002 calls "take-down notifications". More to the point, you can do this in bad faith, because the Act enables the enforcement of "take-down notices" regardless of the merits of a case.
The Act notes that "wrongful" take-downs, based on a material "misrepresenting of the facts", render a complainant liable for damages.
Take-downs
This means, however, that a form of censorship against websites is enabled and then the censored website must fight the matter out in court after being "taken down".
I know all this because two take-downs happened to slipnet.co.za, the literary website I founded at Stellenbosch University as part of the Stellenbosch literary project.
I felt compelled, because principles of academic freedom and free speech were at stake, to do some urgent research into this unimaginable legislative enabling of censorship in the digital sphere. Here is how it works.
The Act indemnifies internet service providers who are members of the Internet Service Providers' Association from damages for libel, provided they take down the contested (or detested) website content after a "take-down notification" has been set in motion in the correct manner with the association.
This process rarely includes any adjudication or arbitration. The association's regulatory adviser, Dominic Cull, confirmed it in an interview this week.
Such a conduit for what is in effect the enabling of "private" censorship is – according to several information communication technology experts I spoke to this week – the unintended effect of a poorly drafted piece of legislation.
Sanity check
All a complainant has to do, as per section 77 of the Act, is to lodge the take-down notice with the association correctly and then the association, after doing a "sanity check", passes on the notice to its affiliate website service provider. It, in turn, passes on the take-down notice to the website concerned in a letter that, in our case, included the following sentence: "We are required to inform you of the take-down notice and request that you comply timeously, within four business days …"
If seeking legal opinion takes more than four days, the next email contains a blunter statement: "If you choose not to remove the content, [the internet service provider] would be obliged to take down your website to remain under the protection of the Act."
The "protection of the Act" means indemnity from liability. The take-down procedure, mechanically applied, has a chilling effect on guarantees of free speech.
The "sanity checks" (the association's term), which constitute the only act of discretionary assessment actually performed following the lodging of a notice, are merely routine checks – namely whether the material in question has already been taken down and the "technical" feasibility of taking content down.
A senior executive at Hetzner, Slipnet's internet service provider, told me that legal experts in the electronic communications and transactions sector had been lobbying the government for years to have the Act changed. Dario Milo, a legal expert in the information communication technology field, said South Africa "should consider United States-type immunity for internet intermediaries".
Cull said: "The association's take-down notice procedure is dictated by the provisions of the Act – non-compliance with these provisions raises substantial liability risks for internet service providers in terms of the content which they carry or host.
"The association has lobbied for and supports a more nuanced approach to take-down, which better balances the rights of the parties involved by allowing for a 'put-back' mechanism. It is, however, up to each member to decide on the level of risk they wish to take on in dealing with take-down notices."
Leon de Kock is professor of English at Stellenbosch University and the author of several books, including Bad Sex (Umuzi)