A website sells pirated software (for example). It is an unlawful activity and people may want to put a stop to it. Another example is a case in New Zealand where, after a fight, a son tried to sell sexy photos of his mom on an auction site. People also often complain about bloggers making false or defamatory statements about them online – and then request the hosting service provider to take down that content.
Depending on whose side you’re on, you (the mother or defamed party) may wish to send a take-down notice or you (the service provider) may have received a take-down notice.
Section 77 of the Electronic Communications and Transactions Act (ECT Act) deals with take-down notices and prescribes the required formalities for a take-down notice. It is important to remember that there is no general obligation on an ISP to take-down content in reaction to a take down notice received.
There is no general obligation on an ISP to take-down content
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 recently been recognised as an industry representative body as contemplated in 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. ISPA processes take down requests in terms of their take down procedure and will inform their client (the member ISP) that a take-down notice has been received if the complaint meets all the requirements of the take down request. The relationship between ISPA and their client – the member service provider – is regulated by contract: ISPA members agree to the terms of the ISPA Code of Conduct.
Received a take-down notice?
So, now you have received a take down notice from ISPA. Do you remove the content? When?
If an ISP removes content from a website, it may have a severe impact on the owner’s business. The owner may indeed suffer damages as a result of the content being taken down. This may in turn result in a damages claim against you as service provider if your agreement with your client does not allow you to take down content on receipt of a take-down notice.
Another scenario may occur: both the complainant and the alleged wrongdoer may be clients of the same ISP. Should you get involved in the dispute between your clients and make your own judgment call?
ISPs should be cautious to get involved in client disputes and to judge the merits of complaints – especially if they have not considered all the necessary and relevant information. On the other hand, ISPs obviously do not want to create the impression that they endorse for example, racist, sexist or violent content. In terms of the law, there is no general obligation on you to monitor your clients or actively seek facts or circumstances to indicate unlawful activities. But you may not knowingly host unlawful content.
So what do you do? Once a take-down notice has been received, 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 or if your client insists that the content remain up, do your own investigation on the merits of the complaint and either:
- leave the content up – in this case get an appropriate indemnity from your client. Of course this will not necessarily be without risk, but you will have to assess risk on a case by case basis, or
- take the content down if you find the take-down request to be fair – be sure to 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).
Some of these steps are required by the ISPA Code of Conduct.
What is required to send a take-down notice?
You need to read section 77 carefully and ensure that you comply with the formalities and requirements.
ISPA has made the requirements quite clear on their website and have enabled a quick and easy procedure for people to send take down notices. When you send the complaint ISPA will make sure that it complies with the formalities of s77 (which can take up to three days). If the take-down notice complies with the formalities of s77 they will then pass the notice onto the Internet Service Provider who is hosting the unlawful content. The Internet Service Provider will then do their own checks (to make sure that they are actually hosting the website etc) and give the owner of the infringing content a “reasonable” period to remove the content. While no fixed time is given most ISP’s in the industry allow for four business days. If the content has not been removed by the time the “reasonable” period has expired the ISP will then remove the content itself.
All in all the entire take-down procedure will normally take about a week to resolve.