Navigating the South African Website Takedown Process: My Experience with ISP xneelo and ISPA

14 Sep Navigating the South African Website Takedown Process: My Experience with ISP xneelo and ISPA

Introduction:

Website takedowns, more commonly referred to as DMCA requests, are an international practice. The aim of these requests is to have content removed that violates someone’s rights, such as their ownership rights to specific content. Here’s how it works: the person making the complaint submits a request to the ISPA to have content removed from their hosting servers. In this blog post, I will share my personal experience with a takedown request submitted for this website by Mr. Christian Ericssen. I will explain how takedown requests work, how to respond to these requests, and what the possible outcomes are.

Section 1: Understanding the DMCA and South African Regulations

• The DMCA (Digital Millennium Copyright Act) and its international relevance.
• How South African copyright laws align with international standards.
• The importance of following copyright regulations online.

The DMCA (Digital Millennium Copyright Act) is like the copyright rulebook for the digital age, but it’s not just for the U.S. It’s a big deal globally because it sets the stage for how copyright works on the internet. Even here in South Africa, where we have our own copyright laws, the DMCA’s ideas have left their mark. It’s kind of like the blueprint for how countries handle digital copyright, making sure artists and creators get their fair share while still letting us enjoy and share content online.

South African copyright laws are on par with standards worldwide. Most laws ensure consistent copyright protection worldwide. In the US, the blanket legal concept is called fair use. However, South Africa also has unique legal concepts, such as fair dealing, which allows creators limited use of copyrighted content without permission from the owners, provided it’s used for education, research, or news reporting. This approach balances creators’ rights with public access to knowledge and culture, similar to international standards’ objectives.

It is very important to follow the correct copyright regulations online. Violating someone else’s copyright can lead to legal troubles and harm the livelihood of content creators, leading to a loss of innovation and creativity.

Section 2: The Complaint from Mr. Christian Ericssen

• What led to the complaint from Mr. Christian Ericssen.
• Details about the content or issues raised in the complaint.
• Communication between myself, Mr. Ericssen, and your hosting provider (xneelo).

This site hosts educational content relating to bitcoin and other cryptocurrencies. The aim of the website is to inform consumers about the dangers inherent in this brave new world. As such, there is also information about people operating in the cryptocurrency market. One such profile relates to Tony de Gouveia. The information presented is already in the public domain and was shared on social media and other public forums.

On August 21, 2023, at 13:02, I received an email from xneelo (previously Hetzner), our hosting provider with the following:

Subject: Ticket ID: 2130209: Action Required: ISPA Take-Down received against — crypto.org.za

Hello,

We have received the attached takedown notice from the Internet Service Provider’s Association (ISPA) for your website: URL ‘crypto.org.za’. Xneelo does not adjudicate whether the content is offensive or not. Our role, as a hosting provider, is to enforce the takedown request as per the Electronic Communications and Transactions Act 25 of 2002 (the ECT Act).

The complaint has been reviewed and meets all of the procedural requirements set out in Section 77 of the ECT Act. You can see full details of the notification on the link below: [Insert link to ISPA guidelines]

This specific notice refers to the content located at [Insert URL]. Our records indicate that this URL is under your ownership. We request that you please pay particular attention to the sections entitled ‘Problem Activity’ and ‘Remedial Action’ in the attached notice.

You have two business days to remove the content. We will liaise with ISPA on your behalf, updating them on the steps taken. Please comply timeously and inform us once the content has been removed.

We understand that removing this content could have an impact on your website, or that in some cases, it may not be possible. In such cases, you will need to supply xneelo with a court order, which will ensure we do not suspend your website.

Please familiarize yourself with our Terms of Service (Specific Terms & Conditions; Clause 3.5 & 3.6) regarding xneelo’s right to suspend or terminate websites: [Insert link to terms]

We kindly request that you respond to this request by 13:00 on Wednesday, 23 August 2023, to avoid the suspension of your website.

If you require any further information or assistance, you are more than welcome to contact me.

Since their notice pointed out Section 77 of the Electronic Communications and Transactions Act (ECT Act), I responded with the following arguments:

Identification of the Complainant:

The ECT Act stipulates that the person laying the claim must include their full names and address. Unfortunately, the notice from Mr. Christian Ericssen did not include this crucial information

Identification of the Alleged Infringement:

The ECT Act requires the clear identification of the right that has been violated. This entails specifying the nature of the right (e.g., copyright) and the relevant legal basis for the claim. The notice provided by Mr. Ericssen does not offer this level of specificity.

Statement of Good Faith and Accuracy:

The ECT Act mandates the inclusion of a statement by the complainant that they are acting in good faith and that the information in the takedown notification is accurate and true to their knowledge. These statements, which are notably absent from Mr. Ericssen’s notice, affirm the integrity and credibility of the claim.

I also committed to working with the ISP to resolve the issues at hand by following the correct procedures.

Section 3: ISP xneelo’s Role in the Process

• Describe your experience with xneelo’s response to the complaint.
• Discuss any actions taken by xneelo in response to the complaint.
• Highlight the importance of having a reliable hosting provider in these situations.

Xneelo’s next response came on the same day at 19:56. This is the gist of their response:

Xneelo, as a web hosting company, abides by the Electronic Communications and Transactions Act 25 of 2002 (the ECT Act) when handling takedown requests.

They emphasize that anyone can submit such requests.

If you disagree with a takedown notice, Xneelo advises providing them with relevant evidence to support your case.

They’ll then forward this information to the ISPA (Internet Service Providers’ Association) for review. ISPA will assess the situation and inform the complainant about the potential consequences of an unjustified takedown.

If necessary, you have the option to obtain a court order to keep your content hosted. Without a court order, Xneelo is obligated to comply with takedown requests, which may involve transferring the domain away from their network.

It’s a clear and structured approach to handling such situations. So far, the only limitation I could see was that the burden is on the website owner to prove that they haven’t violated anyone’s rights. I needed some time to stew on this and come up with a strategic response to avoid the content being taken down.

Section 4: Involvement of the ISPA (Internet Service Providers’ Association)

• The role of the ISPA in regulating ISPs in South Africa.
• How the ISPA handled the complaint and any communication you had with them.
• The significance of industry self-regulation in maintaining internet standards.

ISPA regulates all ISPs in South Africa. They address DMCA (Digital Millennium Copyright Act) takedown requests by acting as an intermediary. When a takedown request is received, ISPA reviews the situation, assesses any objections or evidence provided, and informs the complainant of potential consequences for wrongful takedowns. ISPA’s role is to ensure fair and just handling of takedown requests within the ISP industry in South Africa.

I only corresponded with the ISP (xneelo) and had no direct contact with the ISPA. They relayed all information to them on my behalf when they were satisfied with the response.

Industry self-regulation is crucial in South Africa for maintaining internet standards. This approach promotes responsible behavior, fair competition, and adherence to legal and regulatory frameworks within the industry. By self-regulating, ISPs can address issues like copyright violations, security breaches, and consumer protection more efficiently. It also fosters trust among stakeholders, including users, content providers, and authorities, leading to a more stable and secure internet environment. Ultimately, industry self-regulation helps uphold South Africa’s internet standards, ensuring a safe, reliable, and compliant online ecosystem.

Section 5: The Resolution Process

• The steps taken to resolve the complaint.
• Negotiations, actions, or changes made to your website content.
• The overall outcome and whether it aligned with copyright regulations.

In an effort to resolve the complaint, I wrote a very long response to xneelo detailing the following on August 22, 2023:

• I reiterated the legal deficiencies in the takedown notice.
• There are doubts about Christian Ericssen’s authority, as he may not represent defunct companies mentioned in the article.
• The content is publicly accessible, raising fair use questions.
• I suspect the takedown might have fraudulent intent.
• I asked xneelo to review the notice for compliance, offered evidence, and seek a fair and transparent process while being ready to seek legal advice to protect my rights.

By now, this negotiation has taken a lot of time and energy. I wasn’t willing to just remove the content and be censored if I weren’t in the wrong. I was sure that xneelo would see the light of day and see this as a malicious attempt to remove content and an abuse of the takedown process. Unfortunately, I was wrong.

The response from xneelo came back the next day:

Xneelo appreciates my feedback and seeks to assist responsibly. They actually provide the complainant details: Christian Ericssen’s name, email, and phone numbers. They emphasize that Xneelo’s role, as a hosting provider, aligns with ISPA guidelines and the ECT Act, focusing on procedural aspects, not validity. They verify flagged content, inform customers, and allow for court orders to challenge takedowns. If I contest, I can provide evidence for ISPA’s consideration. Xneelo aims to clarify their process and support lawful actions while awaiting your response.

Great! They are just following the procedures. No real insight into actually reading or understanding whether someone might try and fleece all of us.

I decide it’s best if I take it up with Mr. Ericssen himself. This is where things started getting really interesting.

I try to phone Mr. Ericssen. The cellphone number just rings and goes to voicemail. The other phone number is bogus. I decide to email him asking to clarify the takedown request and how we could possibly resolve this issue.

Mr. Ericssen responds via email in a very bizarre, almost computer-generated response – there is no copyright infringement. Sorry. I have several other email exchanges with him which turn out quite comical.

I go back to the ISP with this information on the same day:

“In his communication, Mr. Ericssen clarified that there was a misunderstanding in his initial report. He acknowledged that his concern was not related to copyright infringement, but rather about incorrect information present on the website. He pointed out specific inaccuracies within the page [https://crypto.org.za/crypto-profile-tony-de-gouveia/], including misleading facts, erroneous figures, or outdated content.”

I attach the email correspondence. We also find Mr. Ericssen’s Gmail profile picture on a Russian website and attach that as evidence that this whole thing is just an attack by a fictitious person.

They take 2 days to consider my evidence and then reply on August 25 to say that they tell the ISPA that I object to the takedown and that the ISPA will warn Mr. Ericssen of the consequences if he files a wrongful takedown request.

Finally, 3 days ago, on September 11, xneelo replies to say that the ISPA has replied to say that Mr. Ericssen is aware of the consequences of a fraudulent takedown and would still like to proceed.

“Please remove the offending content by the end of business tomorrow, failure to do so will result in the suspension of the domain.”

I move the website content to a different hosting provider that is not affiliated with the ISPA and inform them that the content is no longer their problem.

They seem satisfied with this and close their file on the whole debacle.

Section 6: Lessons Learned and Best Practices

• Insights gained from my experience.
• Advice to readers on how to handle takedown requests and complaints.
• The importance of understanding and respecting copyright laws.

Through this experience, I’ve gained some valuable insights. I’d like to offer this advice on how to handle takedown requests and complaints:

Understand the Legal Framework: Familiarize yourself with your country’s laws regarding online content takedowns, such as Section 77 of the ECT Act in South Africa and the fair use (dealings) principle.

Verification is Key: Ensure that any takedown request you receive complies with legal requirements. Check for completeness and accuracy of the information provided.

Seek Legal Counsel: If you have doubts about the validity of a takedown request, consult with legal experts who specialize in internet law. They can guide you on how to respond effectively.

Open Communication: Maintain open lines of communication with the complainant. Sometimes, misunderstandings can be resolved through discussion before legal action is necessary.

Know Your Rights: Understand your rights as a content creator or website owner. You may have legal defenses, like fair use, that protect your content.

Document Everything: Keep records of all correspondence related to takedown requests. This documentation can be invaluable in case of legal disputes.

Consider Public Interest: If your content serves the public interest, consider highlighting this aspect. Public interest can be a powerful argument against takedowns.

Act Promptly: If you believe a takedown request is unjustified, take prompt action. Some legal frameworks require timely responses to protect your rights.

Legal Action: If necessary, seek legal remedies to challenge takedowns. This may involve obtaining a court order or engaging in arbitration.

Stay Informed: Laws and regulations regarding online content can change. Stay informed about updates and adapt your practices accordingly.

Remember, handling takedown requests requires a balance between protecting your rights and complying with legal obligations. Consulting legal professionals is often a wise step in complex cases.

Conclusion:

This experience was quite an eye-opener. The South African takedown process is open to abuse by people with malicious intent. The ISP and their regulator do not care whether the request is correct. All they want is an outcome that is in their best interest, i.e. to avoid a lawsuit from the person lodging the takedown and to get the content off their network as quickly as possible. I’m sure it’s also an administrative burden that ties up their resources. In the US, the customer and the ISP resolve it directly, and the regulator does not get involved in the process. By the time the ISP informed me of the final deadline, it would have been impossible to get a court order to stop the process on short notice. The only option left was to move the content away to another host. If the complainant claims that the content is defamatory, the burden of proof is on them. The person logging the complaint has a much longer legal recourse. They have to lodge a civil case against the person who wrote the article, and this may take months, if not years, to resolve, especially in South Africa. It seems that crying wolf to the ISP and ISPA seems like a surefire way to get a reaction.