Proposal for DStv’s plan to block illegal streaming sites in South Africa – MyBroadband

The Internet Service Providers’ Association of South Africa (ISPA) has recommended considering Australia’s model for blocking access to illegal online services.

However, it warned that any implementation of such a system should be considered against its myriad legal, regulatory, and implementation pitfalls.

This was in response to MyBroadband’s questions about MultiChoice’s recent call for new legal mechanisms to compel Internet service providers (ISPs) to block illegal streaming websites without a court order.

The DStv operator’s content is a major target for illegal streaming websites and IPTV services, particularly because of its extensive live sports rights.

As a result, MultiChoice has advocated for legislative and regulatory reforms to combat illegal streaming websites.

This includes making supporting submissions to the Draft Whitepaper on Audio and Audiovisual Content Services published by the Department of Communications and Digital Technologies (DCDT) in 2020.

Among other things, it proposed amending the Electronic Communications and Transactions Act to mandate that ISPs shut down or block access to websites hosting content illegally.

While MultiChoice praised the proposal, it said its effectiveness would depend on the extent of cooperation required from ISPs.

“If ISPs are merely required to supply subscriber or other technical information, then this will not be effective,” MultiChoice said.

“If, however, they are required to take positive, technical action towards actually limiting the distribution of illegal content, then that will stand a better chance of being effective.”

As it stands, MultiChoice uses court orders to get ISPs to take down infringing websites, which it says is an expensive and time-consuming process.

ISPA has acknowledged that South Africa lacks a legal framework for blocking websites.

It also recognised the global trend towards providing a mechanism for site blocking that could play a role in protecting intellectual property.

However, it warned that implementing such a system is a fraught exercise that must be handled with considerable care.

“MultiChoice is echoing proposals set out in the last draft of the policy, published in July 2023, which are in its own interest,” the industry body said.

“ISPA has also made submissions on the relevant provisions of the draft policy and will continue to oppose any extra-judicial process for site-blocking.”

The example ISPA pointed to in Australia allows its industry regulator, the Australian Communications and Media Authority (ACMA), to request ISPs’ help in disrupting access to illegal online content, such as offshore gambling websites.

Its mechanism includes detailed guidelines for implementation, including minimum thresholds for the sites to qualify for blocking.

These include that the website’s actions must:

• Involve serious criminal or civil offences or threats to national security
• Carry a maximum prison term of at least two years or a financial penalty of at least 120 Commonwealth penalty points (AU$37,560, or R445,930)

A blocking application must also be considered against factors “to determine whether the disruption request is appropriate when balanced against Australia’s commitment to promoting an open, free and secure internet”.

Australians or parties whose websites have been blocked due to a disruption request can also contact ACMA through a form on its website to dispute blocks they believe were done in error.

Although ISPA used this as an example of a well-conceived system, it said that any proposal to place obligations on ISPs to protect third-party intellectual property rights must be subject to a regulatory impact assessment.

This includes the risk of the proposed system to:

• Break accessibility of the legal Internet — Site-blocking is imperfect and will lead to lawful content being blocked.
• Increase the cost to communicate — The additional cost associated with monitoring for illegal websites and related administration will be passed on to consumers.
• Impact the local content industry — ISPA expects the vast majority of blocking requests will come from outside South Africa, with foreign parties claiming to hold the rights to local content.
• Prejudice small ISPs — Site-blocking can be technically complex and requires additional human resources, which could be a tall order for smaller service providers.
• Violate the Constitution — ISPA said site-blocking mechanisms must be properly grounded in the Constitution as it is a limitation on the rights to freedom of expression and access to information.
• Conflict with other legislation — ISPA said it would require a clear legal position that site blocking will not constitute an offence under RICA. ISPs must receive conditional legal immunity when acting on lawful instructions to block a site.

ISPA said these potential pitfalls should be further weighed against the ease with which users can circumvent a block.

“Blocking at ISP level can be easily circumvented using a virtual private network or free recursive DNS resolver such as Quad9,” it explained.

Regarding the status of the whitepaper, ISPA said the DCDT said in Parliament on 10 September 2024 that it had been delayed by recent industry developments and other factors.

“It is not clear when it will be finalised, but the DCDT is likely to be targeting the end of March 2025,” it said.