Liza Essers of the Goodman Gallery and Jackson Mthembu brief the press about the agreement reached between them.
Under a decade-old law, President Jacob Zuma can make online images of The Spear go away with a simple request – at least on South African websites. But preventing South Africans from seeing such images is a different matter.
In theory, it would take a simple statement from Zuma saying his rights to either dignity, privacy or both had been infringed and that, acting in good faith, he wants the photographs of The Spear to be removed from a specific website. This, with his signature and phone number, would be enough to make the painting disappear, at least temporarily, from any website hosted in South Africa.
It is not yet known if the president will use that option, though. “We were focusing on City Press and Goodman Gallery up to this stage,” says ANC spokesperson Keith Khoza. “As to whether there will be another approach [regarding other websites], that we don’t know yet.”
Under the Electronic Communications and Transactions Act of 2002, internet service providers (ISPs) have some protection from unlawful content posted by their customers. But they are obliged to act on a notice of “unlawful activity” without judging its merits. The failure to do so carries liability, but acting on a complaint that turns out to have no basis carries none.
Lawyers who specialise in online law say the system has never experienced a true test, but there is little reason to believe that service providers would risk refusing such a notice, especially one that came from the president and on such a highly charged issue.
Caving
“If they told us to take it down, what do you think we’ll do?” a legal representative for a major service provider said. “We may be accused of caving [in] and our customers may be angry at us, but we won’t have a lot of choice in the matter.”
The Act, promulgated at a time when there is great concern about the impact of online pornography on internet users, is intended for copyright holders to protect music or movies from illegal copying. What it cannot do is reach websites hosted beyond South African jurisdiction.
Preventing anyone in South Africa from seeing The Spear, or accessing child pornography, would require a different approach – the kind of filtering proposed by the advocacy group Justice Alliance of South Africa in 2010. Service providers, the group said, had to be responsible for preventing the transmission of pornography through the real-time inspection of video clips sent from cellphone to cellphone, if necessary. The proposal was never adopted.
The Act also established a cyber inspectorate, a unit that has derisively been called the porn police. If they obtain a warrant, inspectors have the same powers of search and seizure as the police and can force anyone involved in the operation of a computer to help in searching it for unlawful content. Although they can also assist the police in investigations, the law makes it clear that their primary duty is to monitor and inspect websites and report “unlawful activity”.
But, despite Parliament signing the provision 10 years ago, no cyber inspectors have been appointed. However, if The Spear remains online, it could change.
“We’ve been watching the issue quite closely,” said Dominic Cull, a lawyer with Ellipsis Regulatory Solutions and an adviser to the ISP Association. “This could be the assassination of the Archduke Ferdinand, which triggers real attempts to regulate content on the internet.”