No South African has to tolerate hate. This basic tenet of civilised society is applicable now more than ever as the country explores ways to battle racism, xenophobia and other forms of hate speech.
In the online environment, there is a useful tool in the takedown procedure of South Africa’s Internet Service Providers’ Association (Ispa).
It is pertinent to remind South Africans of this valuable tool as government prepares to introduce hate crimes legislation in parliament, which will include a specific focus on hate speech.
Hate speech is usually defined as speech that offends, threatens, or insults groups, based on their race, colour, religion, national origin, sexual orientation, or disability.
Should a member of the public discover online content believed to be unlawful, a request to remove, or take down, the material can be submitted to Ispa as long as the content is hosted locally by an Ispa member, of which there are about 180 Internet service providers.
Legislation sets out the specific requirements for a takedown notification to be delivered to an ISP. This includes the provision of information identifying the content that is the subject of the complaint and the manner in which it infringes the rights of the person complaining. The complainant must also confirm that the takedown request is being made in good faith.
Under section 77(2) of the Electronic Communications and Transactions Act, any person who lodges a notification of unlawful activity knowing that it misrepresents the facts, is liable for damages for wrongful takedown.
Upon receipt of a takedown request, Ispa will confirm that all of the required information is included, that the content referred to is hosted on an Ispa member’s network and that the remedial action requested is feasible. If the request passes these tests, it will be forwarded to the relevant ISP, which must then make a decision on whether to comply with the request, usually in consultation with its affected customer.
During 2015, 236 takedown notifications were lodged with Ispa. Half of these could not be accepted for various reasons which included that the content had already been removed, the request was defective or the target ISP was not an Ispa member. Of the remaining 118 notifications, 111 resulted in content being removed while seven were refused.
Interestingly, the majority of the valid notifications related to copyright or trademark infringement (73), while 28 involved alleged fraud, malware or phishing. Seventeen notifications alleged content which was defamatory or constituted harassment or hate speech or which amounted to an unlawful invasion of privacy.
Ispa has spent the better part of two decades refining the takedown procedure so that is now more efficient and effective than ever. While this process is not the whole answer to hate speech online, it can be very useful in removing offending content quickly and without the need to incur overwhelming legal expenses.
However, it is important to realise that this remedy is limited to locally hosted content and that it therefore cannot be applied to social media sites such as Facebook and Twitter.
More information on the take-down procedure is available here.
- Graham Beneke is chairman of the Internet Service Providers’ Association