A take-down notice is a means of removing potentially offensive content from the internet and is part of the take-down procedure. It is a time and cost efficient way of removing content but, it only applies in certain circumstances. If you meet the requirements for take-down notices, you can do the take-down procedure yourself or with legal assistance if necessary. In South Africa, the take-down notice procedure is done through the Internet Service Providers Association (ISPA).
What do you need to do for take-down notices?
Section 77 of the Electronic Communications and Transactions Act (ECT Act) deals with take-down notices and prescribes the following formalities:
- take-down notifications must be in writing, addressed to the ISP;
- it must include full name, contact details and signed by the complainant;
- identify a right that is allegedly infringed;
- identify the material or activity that is the subject of the unlawful action;
- state the remedial action that is required by the ISP e.g. removal.
- state that the complainant is acting in good faith and that information in the take-down notification is true and correct (to the best of their knowledge).
It is important to bear in mind that any person who lodges a notification which knowingly and materially misrepresents the facts is liable for damages for wrongful take-down.
What happens once ISPA receives the notification?
The first step in the take-down procedure is that once the take-down notification is received by ISPA they will pass the notice on to the Internet Service Provider (ISP) who is hosting the allegedly unlawful content. The ISP will check to see that they are actually hosting the website and then give the owner of the infringing content a ‘reasonable’ period to remove the content. General business practice is that the ‘reasonable period’ is four business days.
Depending on the agreement between the ISP and their client, if the content has not been removed after a reasonable period the ISP may remove the content itself. However, there is not a general obligation for the ISP to remove content in response to the take-down notice.
Who are ISPA?
The Internet Service Providers Association (ISPA) is an industry organisation that was formed in 1996. It represents Internet Service Providers (ISPs) that are members and has been recognised as an industry representative body in terms of chapter XI of the ECT Act. An ISP can get limited liability by joining ISPA. A complainant who wants content removed from a website can request ISPA to send a take-down notice to the ISPA member.
The relationship between ISPA and their client (the ISP) is regulated by contract. ISPA members agree to the terms of the ISPA Code of Conduct.
What should you do if you’ve received a take-down notice?
If you are an ISP and you receive a take-down notice for your client’s content then you should:
- Respond to the notice within a reasonable time.
- Inform your client of the notice.
- Take the content down with the agreement of your client
- But, if your client insists that the content remains up you can do your own investigation on the merits of the complaint.
- If, after the investigation, you decide to leave the content up then you should get the appropriate indemnity from your client.
- Or you can take down the content if you decide the take-down notice is fair but, make sure you act within the provisions of your agreement with your client at all times.
- Inform ISPA of the steps taken in response to the notice.
- Keep a record of all take-down notices received and all materials taken down for a period of three years unless possession of the material is illegal.
As part of the take-down procedure, ISPs should be aware that if they remove content from a website, it may have a severe impact on the owner’s business. The owner may suffer damages and pursue a damages claim against the ISP if the agreement with the client does not allow the removal of content on receipt of a take-down notice.
ISPs also need to be aware that both the complainant and the alleged wrongdoer may be clients of the same ISP. This is a complicated situation and ISPs should consider independent legal advice or mediation to deal with disputes of this nature.
It is sometimes difficult for ISPs to be in the position of judging the merits of the problematic content. ISPs obviously do not want to create the impression that they endorse, for example, racist, sexist or illegal content. Legally there is no general obligation on IPS to monitor client content or actively seek facts or circumstances to indicate unlawful activities. But you may not knowingly host unlawful content.
You may not knowingly host unlawful content
Requirements for an effective take-down procedure
- Comply with all the s 77 formalities.
- The ISP that is hosting the content must be a member of ISPA.
- The ISP must be in South Africa.
ISPA can only operate against member ISPs in South Africa.
Our top tips for take-down notices
- Make sure you meet all the requirements especially that the ISP involved is a member of ISPA. If they are not ISPA cannot help you and need to rely on other legal avenues.
- Your request should clearly identify the offending content. The clearer the submission the faster ISPA can handle your request.
Actions you can take
- Issue a take-down notice by having us draft one for you and follow the take-down procedure.
- Deal with a take-down notice you have received correctly by getting our advice.
- Get assistance in drafting your own take-down notice by having us review your request.
- Find out what your legal options are by having a consultation with us or having us draft an opinion for you.