TO REGULATE OR TO OVERREGULATE? INTERNET SERVICE PROVIDER LIABILITY: THE INDUSTRY REPRESENTATIVE BODY IN TERMS OF THE ECT ACT AND REGULATIONS

Abstract

The Electronic Communications and Transactions Act 25 of 2002 provides for the limitation of liability of Internet service providers against actions based on unlawful content placed on their websites. The legislature’s approach is to emphasize self-regulation of the Internet by providing in section 72 of the Act that only those service providers which belong to an Industry Representative Body (IRB), recognized by the Minister of Communications, will qualify for the protection accorded by the ECT Act. Such an IRB must then, through its Code of Conduct, regulate service providers belonging to it. This article evaluates the prerequisite of an IRB and investigates the
guidelines for recognition of IRBs by the minister. The South African position is then compared with that in the European Union. The need for the existence of IRBs is questioned and the guidelines are criticized. It is argued that both the threshold requirements and IRB recognition requirements are unnecessary in the context of limited liability. It is submitted that these barriers to limited liability are needless and can possibly hamper the industry as a whole.