How South Africa Handles Notice and Takedown

The Digital Millennium Copyright Act (DMCA) is easily the best-known law when it comes to notice and takedown. 

Passed into law in 1998, the DMCA is the law that creates the notice-and-takedown regime used in the United States and creates both the requirements for a DMCA notice and the notice/counternotice process we are most familiar with.

However, the law only directly applies to the United States. Though its requirements have become something of a de facto standard internationally, it only fully applies to companies and sites hosted within the U.S.

That said, other nations and other blocs do have similar regimes. The European Union, for example, has a notice-and-takedown system as part of its Electronic Commerce Directive, which was adopted in 2000. India has their own process, implemented through the Information Technology Act of 2000.

But while these laws are similar in intent, they are often different in the details of how they work. This can lead to challenges for creators when they seek removal of content hosted outside the United States.

One nation that doesn’t get a great deal of attention in this space is South Africa. They too have a notice and takedown regime, part of their Electronic Communications and Transactions Act of 2002 (PDF), but the implementation of it is very different from that of the United States or the European Union.

It’s different enough that, even if you’re comfortable filing takedowns in the US and EU, you may find it confusing to work with a South African host. Fortunately, the differences are easy to break down and simple to work through. 

How South Africa is Different

In most nations, to file a takedown request, you have to complete five different steps:

  1. Determine Who the Host Is: This is done a myriad of different ways depending on the situation. 
  2. Find the Host’s Designated Agent: Hosts designate an agent to receive copyright notices on their behalf. This person can usually be found on the host’s website and/or in a central repository.
  3. Complete a Takedown Notice: Fill out a takedown notice with all the required information.
  4. Submit the Notice: Submit the notice to the agent.
  5. Check for Compliance: Follow up as needed and check for compliance. 

In most cases, steps one and two are both the most difficult and the most important. Finding who the host is and identifying the correct person is crucial. Otherwise, the notice is likely to be ignored or rejected.

With that in mind, South Africa’s approach changes one simple, but crucial, thing: All hosts have the same designated agent.

Web hosts in South African use the same organization, the Internet Service Providers’ Association (ISPA) as their designated agent. Once you discover who the service provider is that hosts the content, you don’t file the takedown notice directly with the host, instead, you file it with the ISPA.

This is because, in 2009, the ISPA was recognized by the Minister of Communications as an Industry Representative Body, which gives their members “special recognition and limited liability for Internet content.”

To that end, the ISPA does take emailed notices, but strongly encourages users to file through their form. This form, however, is not just for copyright issues and is also used to file notices related to fraud, malware, defamation, hate speech and privacy issues. In short, it’s a singular place to report unlawful internet content hosted in South Africa.

To that end, this is something that may be tempting to a lot of frustrated DMCA filers in the United States. Finding out who the host and their agent can be frustrating can be frustrating, and working with dozens or hundreds of agents is both confusing and time-consuming.

However, the system has more than its share of drawbacks too, and it’s worth understanding why this system may not be right for other nations.

The Benefits and Drawbacks of South Africa’s Approach

To be clear, with this system, it is still up to the filer to figure out who the host is. The ISPA form requires designating who the host is from the organization’s 212 members, so they can direct the complaint. But, even with that limitation, there is still a great deal to like about this approach.

  1. Greater Transparency: With one organization receiving all the takedown notices, transparency is much greater. ISPA produces charts about the number of takedowns processed and the outcomes of them. 
  2. Easier Filing: Since all notices are filed the same way, filers only have one process to learn. Even in the United States, there are a myriad of differing requirements among hosts, including different forms, requirements on the notices themselves and so forth. This eliminates those inconsistencies.
  3. Easier for Hosts: Since hosts only receive notices from one source in one format, it’s easier for them to parse and act on. The ISPA also can act as a buffer between filer and host, filtering out obviously inaccurate or inappropriate claims. This is shown by the fact that over half of the claims received by the ISPA are rejected by the organization. 

However, it’s not all better. Though the system streamlines efforts by both filer and host, having a middle person between the two also creates some issues, most notably inefficiencies.

  1. Significantly Slower: In a recent case I filed with the ISPA, the notice was filed on August 5 and the content was not confirmed removed until August 15. This means the notice took 10 days to complete. A DMCA notice direct to a host usually resolves an issue in less than 48 hours, often within 24.
  2. Confusing: Since the ISPA uses a singular form for all types of notices, it’s not a perfect fit for any single issue. For example, one must fill out an explanation of the “problem activity” on the form and specify what “remedial action” the filer seeks. These types of questions aren’t necessary on a form for just reporting copyright infringement.
  3. Personal Information Shared: While transparency is great, takedown notices often have personal information including street addresses, phone numbers and more. This system means that the information is shared with at least one additional entity, likely against the will of the filer.

When it’s all said and done, the tradeoffs don’t seem to offset each other for me. Though it may be possible to streamline and reduce some of these drawbacks, in particular the delay, most would gladly deal with the headache of multiple agents in exchange for faster resolutions.

Bottom Line

In the end, this issue is fairly moot. South African hosts, it seems, don’t receive a large number of takedown requests per year. 

According to the ISPA’s own stats, they received approximately 750 notices in 2021, of which 300 were acted upon. Google, by contrast, handles millions of DMCA takedowns every day, making them any orders of magnitude bigger in terms of number of takedown requests.

Still, it’s interesting to look at a very different notice and takedown system and examine both the benefits and drawbacks of it. To that end, South Africa has a very interesting approach, but it’s also one that won’t likely scale very well and is already slower than alternatives.

No matter how one feels about the more common systems, there’s always something to be learned by looking at how others approach the same problem.