Following legal threats from the Recording Industry of South Africa (RiSA), last week we reported that the country’s biggest torrent site, BitFarm, and its sister site NewsHost (which deals with UseNet NZBs), were both closed. In many similar cases around the world, the threats would’ve been enough to permanently close the sites, but fortunately lawyer Reinhardt Buys, an expert in IP law, noticed their predicament and stepped up to represent them for free.
In order to get the sites closed, RiSA sent copyright complaint letters to ISPA (the South African ISP association) demanding that BitFarm and Newshost should “be taken down with all access to the domain name blocked”, claiming the sites breach Section 27 (1) (b) of the Copyright Act 98/1978. However, according to the site’s lawyer there are several problems, not least that the sites do not host any infringing content.
In fresh correspondence with ISPA, Reinhardt Buys refutes the allegations made against BitFarm and NewsHost. He states that not only did RiSA fail to comply with the Electronic Communications and Transaction Act 25 of 2002 due to the manner in which it presented the takedown requests, but ISPA acted unconstitutionally in dealing with the takedown requests from RiSA. The relevant section from the South African Constitution is highlighted below:
Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.
According to the correspondence, Buys states that it is uncertain if ISPA even considers the legality of takedown requests before initiating the disconnection of a site, and notes that their current takedown procedures seem to be “directed only at the protection of ISPs from possible liability for third party content, regardless of the evident harm done to online free expression, fairness and equality”.
Interestingly, Buys points to a 2004 submission by ISPA itself, on the ‘Proposed Guidelines for Recognition of Industry Representative Bodies’.
ISPA believe that is it critically important for freedom of speech that a service provider be given an option to take stance on content that is of unclear legal status. Clearly, a service provider should not host content that a court of law or some other authority has ruled to be illegal. But in a case where the legal status of content is unclear (perhaps, for example, if an unproven accusation of hate speech had been made against a particular web page), an ISP should not automatically be required to remove the content. Such a requirement would have a chilling effect on free speech.
However, all of this might be considered moot, since it appears that the complainant, RiSA, had no locus standi or ‘legal standing’ to request the takedown of the sites:
In terms of section 24 of the Copyright Act 98 of 1978, only the copyright owner may institute proceedings related to copyright infringement. The Complainant is not a copyright owner and merely a unit within an organisation that claims to represent the South African recording industry
To this end, Buys has advised the administrator of BitFarm and NewsHost to re-enable both sites and to re-engage in their previous activities, while considering claiming for losses, damages and legal costs from both ISPA and RiSA via civil litigation. In the face of further harassment or intimidation from RiSA, the sites may seek a protective interdict from the courts. Buys has also called on ISPA to implement takedown procedures “which are free of constitutional concerns”.
The full legal response can be found here (pdf).
