Take-down Notice Workshop

Take-down notice process in a nutshell The take-down notice process is a mechanism

for members of the public to notify an ISP about alleged unlawful content on their network.

If the service provider acts expeditiously to remove or disable access to that content, then the service provider has limited liability for that content.

History of the TDN process (1/3)

Set out in Chapter XI of the Electronic Communications and Transactions Act (ECTA)

ECTA deals primarily with making electronic communications functionally equivalent to written communications. Chapter XI is tacked on, almost as an afterthought – none of the 18 objects of the Act related to this chapter.

Unlike similar legislation in other countries, ECTA limits the protections provided to members of an Industry Representative Body recognized by the Minister.

History of the TDN process (2/3)

Section 71 says that an IRB may only be recognized if:

1. Members are subject to a code of conduct2. Membership is subject to adequate criteria3. The IRB has a code of conduct of adequate standards4. The IRB is capable of monitoring and enforcing its code.

ECTA was assented to on 31 July 2002 ISPA applied for recognition later that year.

History of the TDN process (3/3)

There was then a 4½ year wait, until on 14 December 2006, Guidelines for Recognition of Industry Representative Bodies of Information System Service Providers was published.

These guidelines represented significant scope creep. However, most of the problem requirements were

“preferred” and not “mandatory”. ISPA amended its Code four times in 2007 and 2008. Finally, on 20 May 2009, ISPA was officially

recognized as an IRB by the Minister.

ISPA's role (1/2)

ISPA's Code requires that: Members have an internal TDN process Members respond expeditiously to TDNs (Members appoint ISPA as their TDN agent)

What does the ISPA Secretariat team do? 1. Check if the target is an ISPA member 2. Check that all the required information for a

TDN has been provided.

ISPA's role (2/2)

What does the ISPA Secretariat team do? 3. Sanity checks:

Is the content hosted on the target ISP's network? Is the content still there? Is the requested remedial action technically feasible?

4. Send the TDN to the ISPA member 5. Monitor the response and provide feedback to

the complainant. What does ISPA not do?

1. Assess the validity of the complainant's allegations of unlawful activity.

What does the target ISP do? (1/2)

Upon receipt of a TDN from ISPA, confirm receipt (hopefully).

If the target of the TDN is another ISPA member, a redirect of the TDN can be requested.

Make contact with their client (the TDN target) giving them some options, which are usually:

1. Remove the targeted content. 2. Indemnify the ISP against liability

An ISP will sometimes remove the content themselves, usually if their client fails to respond to their communications.

What does the target ISP do? (2/2)

An ISP will sometimes also reject a TDN without consulting their client (e.g. a take-down against a bank's web site).

Whatever the ISP decides to do, they must notify ISPA. Important tips for ISPs:

Make sure your terms and conditions give you the right to deal adequately with a TDN.

Be aware that you do not have to accept a TDN, you are entitled to reject the request.

If in doubt, ask ISPA for help.

The target's point of view

ISPA does not have any direct contact with the target of a TDN and only communicates with the relevant ISPA member.

Each ISP chooses exactly how to deal with their clients.

ECTA does not give the target any opportunity to respond to the TDN. Yes, this is a problem!

This is at odds with international practice. It is a problem with ECTA, not ISPA!

Three tips for lodging a successful TDN

Make sure the content is hosted on a network belonging to an ISPA member.

Make sure that you identify the content as accurately as possible – give the specific page or link to each copyright image, not the whole web site.

Make sure that you are requesting sensible remedial action.

Good: Disable access to the offending web page. Bad: Order the ISP to transfer the web site's

domain to me.

Irritating take-down notices

Anything quoting the DMCA Take-downs targeted at ISPA itself Take-downs which conflate ISPA's code with

the take-down notice process Take-downs which make veiled threats that

failing to do exactly what is requested means that ISPA (or the ISP) will magically become liable for all kinds of damages.

Some specific types of TDN

Copyright content (most common) Copyright images or text taken from other web

sites without permission Web site designers who haven't been paid

Use of a trademark without permission Libelous comments or hate speech

Message boards, forum comments, blog posts Sometimes devolve into tit-for-tat battles

Domain name disputes (not the right process)

Some statistics from 2013 (1/2)

Total TDNs lodged with ISPA: 133 Rejected: 64 (48%)

8: target not an ISPA member 17: content did not exist/was already removed 39: invalid notice, ECTA requirements not met

Accepted: 69 (52%) 54: content was removed or blocked (78%) 13: rejected by the ISP 2: withdrawn by the complainant

Some statistics from 2013 (2/2)

Types of TDNs 65% copyright or trademark infringement

12% defamation, harassment, libel, hate speech, or privacy

17% fraud, malware, phishing sites 6% other (false advertising, incorrect

information)

Some statistics from 2013 (2/2)

Types of TDNs 65% copyright or trademark infringement

17% fraud, malware, phishing sites 12% defamation, harassment, libel, hate

speech, or privacy 6% other (false advertising, incorrect

information)

The future?

ECT Amendment Bill

Published for comment on 26 October 2012 Seems to have stalled since then.

Key proposed changes:

IRB deemed to be recognized one year after application if the Minister fails to respond

Provides for a right to reply to a take-down, but erroneously gives this right to the target ISP instead of the “owner” of the content.

Requires that the complainant give “due consideration” to the response and may then issue a “final” take-down notice.

The end

Thanks! Questions?