section 77: service provider liability and take down ... · (audi alteram partem) and the...

Section 77: Service Provider Liability and Take Down ProceduresRepresentation on Amendment by Andrew Rens

Section 77 of the Electronic Communications and Transactions Act and the proposed

amendment and addition to Section 77 both provide a 'notice and take down' regime

for South African Internet Service Providers. A notice and notice regime is more

appropriate for South Africa. Section 77 as currently formulated and the proposed

amendment to Section 77 proposed by in the Proposed Electronic Communications

and Transactions Amendment Bill 2012Amendment Bill (26 October 2012) both

infringe freedom of expression and the right of access to court. The changes proposed

amendments intended to comply with the natural law requirement of audi alteram

partem fails the natural law requirement that no-one may be judge in his own cause.

The draft amendment also place an undue burden on service providers, creates an

untenable legal situation for service providers and is contrary to global best practice.

Section 77: Service Provider Liability and Take Down Procedures; Representation on Amendment by Andrew Rens 1

Table of Contents: Representation on Section 77: Service Provider Liability and Take Down Procedures

1. Discussion of the current Section 77 and draft amendment...............32. Constitutional Requirements..............................................................53. Alternatives to Notice and Take Provisions.......................................84. Constitutional Assessment of Current and Proposed Provisions.......95 Impact on Service Providers.............................................................126 Recommendation..............................................................................13About the Author..................................................................................18Annex A: Current wording of Section 77 of the Electronic Communications and Transactions Act 2002..................................................................19Annex B: Proposed Amendment of Section 77 of and Insertion of Section 77A in the Electronic Communications and Transactions Amendment Draft Bill 2012...............................................................................................20Annex C: Canadian Notice Provisions.................................................22Annex D: Chilean Notice Provisions (English Translation)..................26


1. Discussion of the current Section 77 and draft amendment

How both the current and proposed sections enable censorship of speech is best illustrated

by way of an example. If a union official writes a comment on a website about the conducts

of an employer during the strike and the comment includes a parody of the name or slogan of

the employer, the employer could believe that the wordplay is damaging to its reputation. If

the employer is unhappy with the communication by the union official and gives notice to the

service provider alleging that its rights are infringed the service provider would under the

current system simply remove the information from its system in order to avoid liability. It is

easy to see how this can be abused. Any person can effectively engage in censorship of

another person's expression. This is obviously unsatisfactory and presumably the motivation

for the amendment of the section.

The proposed amendment (26 October proposal) is no better. The employer in the example

would issue a first take down notice alleging misuse of the trademark and the service provider

would respond presumably pointing out the importance of freedom of expression. The

complainant would persist and issue a final notice of take down and the service provider

would have to comply.

Both the current and proposed provisions violate the legal principle: nemo iudex in sua causa

(no one may be judge in his own case). The complainant might even have a good faith belief

in the validity of his complaint just as South African Breweries persisted in its claim that T

shirts distributed by Laugh It Off were tarnishing their trademark. The Constitutional Court

ruled otherwise. Most South Africans do not have the means to approach the Constitutional

Court to vindicate their right to freedom of expression unlike Laugh It Off. The proposed


provisions do not require that the union official be given notice nor an opportunity to make

representations before her right to freedom of expression is stifled. The proposed provisions

do not require that the union members to whom the union official is communicating be given a

chance to make representations before their right to receive information is stifled.

Point 12.5 of the Explanatory Memorandum that accompanies the Draft Amendment Bill

states: “After further consideration, the Minister considers that any notice or take-down

procedure should allow for the right of reply in accordance with the principle of administrative

justice and the audi alteram partem rule. Changes have been proposed in this regard to

section 77 and a new section 77A is proposed.” However the proposed changes do not

comply with the concerns expressed by the Minister that the section should include a right of

reply because it grants only the service provider a right of reply instead of granting a right of

reply to the information provider whose rights are affected. But even if the information

provider were given notice and an opportunity to respond the requirement of natural justice

would not be met because the audi alteram partem rule is closely related to the nemo iudex in

sua causa rule. “The core requirements of natural justice are the need to hear both sides

(audi alteram partem) and the impartiality of the decision maker (nemo iudex in sua causa)”1.

The proposal to make the complainant the judge in his own case precludes an impartial

hearing of the other side and therefore means that the audi alteram rule is not upheld.

The proposed section 77A requirement that the “complainant shall give due consideration to

the response” before deciding whether to issue a final notice is insufficient because even if a

complainant were able to make an objective decision others affected by the decision would

1 County Fair Foods (Pty) Ltd v Theron NO & others (2000) 21 ILJ 2649 (LC) at 2652-3 quoted with approval by Raswiswi v Commission for Conciliation Mediation and Arbitration and Others (JR 3121/09) [2011] ZALCJHB 20; [2011] 9 BLLR 911 (LC); (2011) 32 ILJ 2186 (LC) (22 March 2011) and see Lawrence Baxter, Administrative Law at 536


regard the complainant as biased by her own interests, and there would thus be perception of

injustice contrary to the principle that justice must not only be done but be seen to be done.2

2. Constitutional Requirements

Any law passed in South Africa must accord with the Bill of Rights, if it does not then it will be

invalid and likely will be declared invalid by a court at some point. It is therefore important to

consider the constitutional requirements that affect the imposition of requirements on service

providers. Two important rights that must be taken into account are the rights of freedom of

expression and access to court. The right to freedom of expression is set out in Section 16 of

the Bill of Rights in the Constitution.

“16. Freedom of expression(1) Everyone has the right to freedom of expression,which includes-(a) freedom of the press and other media;(b) freedom to receive or impart information or ideas;(e) freedom of artistic creativity; and(f) academic freedom and freedom of scientific research.(2) The right in subsection (1) does not extend to-(a) propaganda for war;(b) incitement of imminent violence; or(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

The Constitution requires that laws such as the Electronic Communications and Transactions

Act must restrict the right to freedom of expression as little as possible. Service providers are

2 A principle pronounced in R v Sussex Justices, ex parte McCarthy, [1924] 1 KB 256, [1923] All ER 233 and accepted by South African courts.


obliged to uphold the rights to freedom of expression of those persons whose information they

host, an obligation that precedences and overrides any statutory obligation. Section 8 of the

Bill of Rights provides:

“8. Application(l) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.(2) A provision of the Bill of Rights binds a natural or a juristic person if, and to theextent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.”

The only practical way for many South Africans to exercise their freedom of expression

beyond their immediate environments is to to disseminate their views and access knowledge

by means of the the Internet. Internet access is therefore a freedom of expression issue.

Therefore any procedure established by the Electronic Communication and Transactions Act

for take down of content must take into account the obligation placed on service providers to

respect the freedom of expression of others. The right of access to court must also be taken

into account. Section 34 of the Bill of Rights in the Constitution sets out the right of access to

court.

34. Access to courts.-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

The consequence of section 34 is that any procedure to address disputes in the Electronic

Communication and Transactions Act must enable a court or other impartial body to make a

decision that affects the rights of any person. This is especially important when a dispute may

affect the rights in the Bill of Rights such as the right to freedom of expression. Section 77: Service Provider Liability and Take Down Procedures; Representation on Amendment by Andrew Rens 6

In Lesapo v North West Agricultural Bank and Another the Constitutional Court held that:

“section 34 and the access to courts it guarantees for the adjudication of disputes are a manifestation of a deeper principle; one that underlies our democratic order. The effect of this underlying principle on the provisions of section 34 is that any constraint upon a person or property shall be exercised by another only after recourse to a court recognised in terms of the law of the land...In a modern constitutional state like ours, there is no room for legislation which, as in this case, is inimical to a fundamental principle such as that against self help. This is particularly so when the tendency for aggrieved persons to take the law into their own hands is a constant threat.

This rule against self-help is necessary for the protection of the individual against arbitrary and subjective decisions and conduct of an adversary. It is a guarantee against partiality and the consequent injustice that may arise. ”3

A complainant therefore cannot be allowed to decide on the exercise of rights of freedom of

expression by other persons. A service provider is also not appropriately equipped to decide

disputes about freedom of expression, and itself has interests in any dispute, not least of

which are reducing costs of disputes.

It is possible to limit the rights in the Bill of rights but any law which does so must comply with

section 36 of the Bill of Rights.

“36. Limitation of rights.(1) The rights in the Bill of Rights may be limited only interms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-(a) the nature of the right;(b) the importance of the purpose of the limitation;(c) the nature and extent of the limitation;(d) the relation between the limitation and its purpose; and

3 (CCT23/99) [1999] ZACC 16; 2000 (1) SA 409; 1999 (12) BCLR 1420 (16 November 1999) at §16 et seq Section 77: Service Provider Liability and Take Down Procedures; Representation on Amendment by Andrew Rens 7

(e) less restrictive means to achieve the purpose.(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.”

One consequence of section 36 for the issue of service provider liability is that if there are

processes that achieve the purpose of section 77 but which are less restrictive than either

section 77 or the proposed changes then those less restrictive means must be adopted.

There are less restrictive means of achieving the purpose. Those less restrictive means

include notice and notice provisions, and similar provisions in use in other countries such as.

Canada and Chile.

3. Alternatives to Notice and Take Provisions

Chile has provisions in terms of which a person complaining of alleged copyright violation can

approach a court on an urgent basis, if sufficiently urgently without the service provider being

heard and obtain an order to information be rendered unavailable. A service provider or

information provider can challenge the order in court. The approach in Chile is informed by

the operation of human rights provisions which, as in South Africa, render private actors such

as service providers, liable for infringement of basic human rights such as the right to freedom

of expression. The provisions of the Chilean law in a translation into English are set out in

Annex D.

Canada has recently passed a bill the deals with service provider liability for copyright

infringement. Canadian law is of particular importance because the South African Bill of

Rights is modeled on and in many aspects resembles the Canadian Charter of Rights and

Freedoms. The Canadian Bill encodes long standing practice in Canada. A service provider


which receives a notice from a complainant must give notice to an alleged copyright infringer,

and keeps certain records in respect of the infringement for a set period to facilitate litigation.

The complainant must pay a fee to the service provider. A court may give an order to a

service provider to remove information however in doing so it must take into account a

number of factors including the aggregate effect of the injunction and any injunctions from

other proceedings, technical feasibility of implementing the order, the burden on the service

provider and the availability of less burdensome and comparably effective means of

preventing or restraining the infringement. The provisions of the Canadian law are set out in

Annex C.

4. Constitutional Assessment of Current and Proposed Provisions

Both section 77 as it currently stands and the proposed changes to section 77 and proposed

section 77A limit freedom of expression by authorizing anyone to issue take down notices to

service providers that prevent expression by information providers and prevent receipt by

those who want to receive information and ideas from those information providers.

In addition both section 77 as it stands as well as proposed changes to section 77 and

proposed section 77A infringe the right of access to court. The complainant is able to require

the service provider to remove data without a court order. It is important to be clear about

which dispute is prevented from being heard by a court. The dispute that the court is

precluded from hearing is not a dispute between the complainant and the information provider

about whether or not the information infringes a right of the complainant but instead the

dispute about whether or not the service provider should remove the information.


The provisions do not in themselves prevent an information provider from approaching a court

to order that the service provider should replace the information that it has taken down. An

information provider could theoretically approach a court because his rights have been

infringed. However since the provisions do not require that the service provider give the

information provider any notice of the take down how would the information provider know

why the information has been removed? But even if an information provider were able to find

out that the removal was the at the behest of the complainant and somehow persuaded a

court to order a service provider to host information the court order would be rendered

ineffective because the complainant could once again issue take down notices and once

again the service provider would be required to comply.

The proposed wording only permits damages in the event that the complainant intentionally

misleads the service provider in the first notice: Section 77A “Any person who lodges a

[notification of unlawful activity] first take-down notice with a service provider knowing that it

materially misrepresents the facts is liable for damages for wrongful take-down.” Based on

this wording if a complainant did not know that it had materially misrepresented the facts at

the time it sent the first notice but subsequently discovered that it had done so and sent the

final notice of take down it would not be liable for damages even though it had knowingly and

materially misrepresented to the service provider. The proposed wording permits damages

only in the event that the complainant materially misrepresented facts however the complaint

must necessarily consist not only facts but of conclusions of law. So in the example already

discussed earlier if the employer objects to the use of its trademarked slogan by the union it

might report that the union is reproducing a copy of its trademark. That would be a correct fact

however the conclusion that the trade union may not do so is a conclusion of trademark law. If

the employer were wrong on its conclusion of law the union official would not be able to claim

damages according to the provisions. Section 77: Service Provider Liability and Take Down Procedures; Representation on Amendment by Andrew Rens 10

Reducing the right of the information provider to approach a court for damages only for

knowing misrepresentation eliminates the right of the information provider to sue for

negligence which is the prevailing common law standard. It also removes the right to sue for

negligent or even knowing misrepresentations of law.

Most fatally for the provision in proposed 77A is that it purports to eliminate the right of the

information provider to have a court decide whether the information should be removed or not

infringes the right of access to court.

The proposed changes to section 77 and proposed section 77A fail to distinguish between

criminal offenses and civil claims. South African law treats criminal offenses and civil

complaints differently, requiring different standards of proof. Both the current and proposed

amendments to section 77 state that a person who lodges a notification of unlawful activity

with a service provider knowing that it materially misrepresents the facts is liable for damages

for wrongful take-down, however the proposed section 77A would add a provision that a

service provider who does not comply with a final take-down notice within a ten business days

of receipt may be liable for a related offense. The consequences are disproportionate, a

fraudulent complainant is liable only for civil damages while a service provider which is merely

provides a mechanism for storage of data is held to be criminally liable.

The proposed section 77A would insert a provision that the time periods set out in the section

may be reduced in cases of urgency where irreparable or substantial harm is anticipated if the

complaint is not resolved within a shorter time period than that proposed by the section. The

subsection does not make clear who will decide whether irreparable harm is anticipated. If it is


the complainant then there is no reason why every complainant should not decided in its own

favour that every matter is urgent and demand immediate take down.

Since both the current and proposed provisions limit the rights of expression and access to

courts the question is whether the limitation can be justified. There is a less restrictive means

of achieving the same objective, a notice and notice provision. As a result the current

provisions of section 77 and the proposed changes to section 77 and proposed section 77A

infringe the rights of freedom of expression and access to court and are accordingly

unconstitutional.

5 Impact on Service Providers

Service providers are common carriers, just like telecommunications providers, railways and

the like. South African law has never imposed liability on common carriers unless the

corporation was actually party to a civil wrong or criminal offense. Both section 77 and the

proposed amendment depart from this general principle. The significance of section 77 for

service providers is in its relationship to section 75 of the Electronic Communications and

Transactions Act.

“75. Hosting(1) A service provider that provides a service that consists of the storage of data provided by a recipient of the service, is not liable for damages arising from data stored at the request of the recipient of the service, as long as the service provider-a. does not have actual knowledge that the data message or an activity relating to the data message is infringing the rights of a third party; orb. is not aware of facts or circumstances from which the infringing activity or the infringing nature of the data message is apparent; andc. upon receipt of a take-down notification referred to in section 77, acts expeditiously


to remove or to disable access to the data.(2) The limitations on liability established by this section do not apply to a service provider unless it has designated an agent to receive notifications of infringement and has provided through its services, including on its web sites in locations accessible to the public, the name, address, phone number and e-mail address of the agent.(3) Notwithstanding this section, a competent court may order a service provider to terminate or prevent unlawful activity in terms of any other law.(4) Subsection (1) does not apply when the recipient of the service is acting under the authority or the control of the service provider.”

The purpose of sections 75 through to section 77 are to limit liability for service providers such

as service providers because they provide a service that enables people to communicate with

each other which results in a wider range of social benefits and economic sufficiencies. As a

consequence there are good policy reasons to limit service provider liability. The limitation of

ISP liability is often accompanied by placing some requirements on service providers. The

more onerous the requirements placed on service providers the greater the costs for ISPs

and those costs then form part of the cost of using the Internet for the customers of ISPs.

Imposing onerous obligations on service providers therefore raises the cost of using the

Internet for ordinary South Africans, make it harder for South Africans to get access to and to

use the Internet to run businesses, access information, use government e-services and

communicate with each other.

6 Recommendation

The Electronic Communications and Transactions Act should be amended to create a notice

and notice provision. The provision should limit liability for service providers which comply

with it. The provision should permit a complainant to send a notice to a service provider. The

service provider should in turn notify the person who stored the information that is the cause


of complaint (the information provider or data provider). The information provider should then

have a choice to remove or alter the information in response to the complaint or to send a

counter notice to the service provider. If the information is removed or altered then the

complaint is resolved. If the information provider does not respond to the notice from the

service provider notifying her of the complaint within a set time period then the service

provider should remove the information and the complaint is resolved.

If the information provider sends a counter-notice it should set out why the information

provider rejects the claims made by the complainant. The service provider should pass on to

the complainant the reasons given by the information provider for rejecting the complaint. The

complainant can then approach a court to resolve the dispute since a court is an appropriate

forum for resolving issues concerning the rights at stake. Section 75(3) already gives the

complainant the right to approach a court: “(3) Notwithstanding this section, a competent court

may order a service provider to terminate or prevent unlawful activity in terms of any other

law.”

In the system proposed minor disputes are likely to be resolved by the information provider

removing the offending information or the service provider removing the information when the

information provider fails to respond. Disputes which involve fundamental rights will likely be

pursued in the courts which can then develop appropriate case law governing communication

on the Internet. The draft wording for a notice and notice system that follows sets out four

changes, creation of the definition of an information provider, amendments to sections 75 and

77 and insertion of another section.


Draft Wording

Definition of information provider to be inserted: 'a person who makes use of a service that

consists of the storage of data contemplated in section 75 (1)'

Section 75(1)(c) is hereby amended by the substitution for section 75 (1) (c)of the following

paragraph:

” c. upon receipt of a take-down notification referred to in section 77, acts expeditiously

as required by section 77.”

Section 77 of the principal Act is hereby amended:

(a) by the substitution for the heading of section 77 of the following heading:

"Notice of Complaint"

(b) by the substitution for section 77 of the following paragraphs:

"(1) For the purposes of this Chapter but subject to the provisions of section 77A, a

notification of alleged unlawful activity, known as a notice of complaint must be in writing,

must be addressed by the complainant to the service provider or its designated agent and

must include-

(a) the full names and address of the complainant;

(b) the written or electronic signature of the complainant;

(c) identification of the right that has allegedly been infringed;

(d) identification of the material or activity that is claimed to be the subject of unlawful activity;

(e) remedial action required on the part of the information provider that would satisfy the

complainant;


(f) telephonic and electronic contact details of the complainant;

(g) a statement that the complainant is acting in good faith; and

(h) a statement by the complainant that the information in the notice of complaint is to his or

her knowledge true and correct.

(2) Any person who lodges a notice of complaint he or she knows or reasonably ought to

know includes material misrepresentations is liable for damages for wrongful take-down.”

A new section 77A is hereby inserted after section 77 of the principal Act as follows:

77A. (1) A service provider which receives a notice of complaint shall as soon as reasonably

possible but at least within five business days of receipt of the notice:

(a) if the information provider has furnished contact details send a notice to the information

provider that includes (i) all the details set out by the complainant in the notice of complaint (ii)

notice of the operation of this section;

(b) or if the information provider has not furnished contact details then ensure that when the

data is accessed a notice is displayed that includes (i) all the details set out by the

complainant in the notice of complaint (ii) notice of the operation of this section.

(2) An information provider given notice in terms of subsection (1) may within five business

days:

(a) remove or alter the data that is the object of the complaint or authorise the service

provider to do so, or

(b) send a counter notice to the service provider setting out the grounds on which he or

she denies the complaint.

Should the information provider fail to remover or alter the data or send a counter notice

within five business days of the notice from the service provider then the service provider


shall remove the data.

(3) Should the information provider remove or alter the data that is the object of the

complaint or authorise the service provider to do so then the service provider shall give notice

of the alteration or removal to the complainant as soon as reasonably possible but at least

within five business days of the alteration or removal.

(4) A service provider that receives a counter notice in terms of (2) (b) shall as soon as

reasonably possible but at least within five business days of receipt of the counter notice send

a notice to the complainant that includes the reasons given by the information provider for

denial of the complaint and (ii) notice of the operation of this section.

(5) Removal or alternation of data by an information provider shall not constitute an

admission of the validity of any aspect of the complaint.

(6) A complainant dissatisfied with the outcome of the notice of complaint process may

approach a court.

(7) A service provider that follows the procedure set out in this section is not liable for

wrongful removal of data in response to a notice of complaint.


About the Author

The author of this submission, Andrew Rens, has been awarded the degrees of Bachelor of Arts, Bachelor of Laws and Master of Laws by the University of the Witwatersrand, and is an Attorney of the High Court of South Africa. He as taught Telecommunications Law, ICT Law and Intellectual Property Law at the Law Schools of the University of the Witwatersrand and Cape Town.


Annex A: Current wording of Section 77 of the Electronic Communications

and Transactions Act 2002

Take-down notification(1) For the purposes of this Chapter, a notification of unlawful activity must be in writing, must be addressed by the complainant to the service provider or its designated agent and must include-a. the full names and address of the complainant;b. the written or electronic signature of the complainant;c. identification of the right that has allegedly been infringed;d. identification of the material or activity that is claimed to be the subject of unlawful activity;e. the remedial action required to be taken by the service provider in respect of the complaint;f. telephonic and electronic contact details, if any, of the complainant;g. a statement that the complainant is acting in good faith;i. a statement by the complainant that the information in the take-down notification is to his or her knowledge true and correct; and(2) Any person who lodges a notification of unlawful activity with a service provider knowing that it materially misrepresents the facts is liable for damages for wrongful take-down.(3) A service provider is not liable for wrongful take-down in response to a notification.


Annex B: Proposed Amendment of Section 77 of and Insertion of Section

77A in the Electronic Communications and Transactions Amendment

Draft Bill 2012

Amendment of section 77 of Act 25 of 2002 40. Section 77 of the principal Act is hereby amended:(a) by the substitution for the heading of section 77 of the following heading:"Take-down notifications" (b) by the substitution for section 77 of the following paragraphs:"(1) For the purposes of this Chapter but subject to the provisions of section 77A, a first written notification of unlawful activity, defined for purposes of this Chapter XI as a "first take-down notice" must be in writing, must be addressed by the complainant to the service provider or its designated agent and must include-(a) the full names and address of the complainant;(b) the written or electronic signature of the complainant;(c) identification of the right that has allegedly been infringed;(d) identification of the material or activity that is claimed to be the subject of unlawful activity; (e) the remedial action required to be taken by the service provider in respect of the complaint; (f) telephonic and electronic contact details, if any, of the complainant;(g) a statement that the complainant is acting in good faith; and(h) a statement by the complainant that the information in the take-down notification is to his or her knowledge true and correct.(2) Any person who lodges a [notification of unlawful activity] first take-down notice with a service provider knowing that it materially misrepresents the facts is liable for damages for wrongful take-down.(3) A service provider is not liable for wrongful take-down in response to a [notification] final take-down notice, and for purposes of this Chapter XI, a "final take-down notice" shall mean a notice that is issued after a complainant has followed the procedure set outin section 77A, when a complaint has not been resolved to the satisfaction of the complainant or if no response is received within the time period specified in section 77A(2)."

Insertion of a new section 77A in Act 25 of 2002


41. A new section 77A is hereby inserted after section 77 of the principal Act as follows:

"Right to remedy on receipt of a take-down notice 77A. (1) Prior to issuing a final take-down notice, a complainant must first give the service provider an opportunity to respond in writing to the first take-down notice. (2) The service provider shall respond to the first take-down notice within 10 business days in writing and shall address at least the issues set out In section 77(1)(c) to (e) but may also raise any other issues that are in its view, relevant to the complaint and the firsttake-down notice.(3) The complainant shall give due consideration to the response from the service provider and may if the complaint has not been resolved to the satisfaction of the complainant, or if no response is received in the time period referred to in subsection (2), issue a final take-down notice to the service provider within a further 10 business days.(4) A service provider who does not comply with a final take-down notice within a further 10 business days may be liable for a related offence. (5) The time periods set out in this section 77A may be reduced in cases of urgency where irreparable or substantial harm is anticipated if the complaint is not resolved within a shorter time period than that set out in subsections (2), (3) and (4)."


Annex C: Canadian Notice Provisions

Provisions Respecting Providers of Network Services or Information Location Tools

41.25 (1) An owner of the copyright in a work or other subject-matter may send a notice of claimed infringement to a person who provides

(a) the means, in the course of providing services related to the operation of the Internet or another digital network, of telecommunication through which the electronic location that is the subject of the claim of infringement is connected to the Internet or another digital network;

(b) for the purpose set out in subsection 31.1(4), the digital memory that is used for the electronic location to which the claim of infringement relates; or

(c) an information location tool as defined in subsection 41.27(5).

(2) A notice of claimed infringement shall be in writing in the form, if any, prescribed by regulation and shall

(a) state the claimant’s name and address and any other particulars prescribed by regulation that enable communication with the claimant;

(b) identify the work or other subject-matter to which the claimed infringement relates;

(c) state the claimant’s interest or right with respect to the copyright in the work or other subject-matter;

(d) specify the location data for the electronic location to which the claimed infringement relates;

(e) specify the infringement that is claimed;

(f) specify the date and time of the commission of the claimed infringement; and


(g) contain any other information that may be prescribed by regulation.

41.26 (1) A person described in paragraph 41.25(1)(a) or (b) who receives a notice of claimed infringement that complies with subsection 41.25(2) shall, on being paid any fee that the person has lawfully charged for doing so,

(a) as soon as feasible forward the notice electronically to the person to whom the electronic location identified by the location data specified in the notice belongs and inform the claimant of its forwarding or, if applicable, of the reason why it was not possible to forward it; and

(b) retain records that will allow the identity of the person to whom the electronic location belongs to be determined, and do so for six months beginning on the day on which the notice of claimed infringement is received or, if the claimant commences proceedings relating to the claimed infringement and so notifies the person before the end of those six months, for one year after the day on which the person receives the notice of claimed infringement.

(2) The Minister may, by regulation, fix the maximum fee that a person may charge for performing his or her obligations under subsection (1). If no maximum is fixed by regulation, the person may not charge any amount under that subsection.

(3) A claimant’s only remedy against a person who fails to perform his or her obligations under subsection (1) is statutory damages in an amount that the court considers just, but not less than $5,000 and not more than $10,000.

(4) The Governor in Council may, by regulation, increase or decrease the minimum or maximum amount of statutory damages set out in subsection (3).

41.27 (1) In any proceedings for infringement of copyright, the owner of the copyright in a work or other subject-matter is not entitled to any remedy other than an injunction against a provider of an information location tool that is found to have infringed copyright by making a reproduction of the work or other subject-matter or by communicating that reproduction to the public by telecommunication.

(2) Subsection (1) applies only if the provider, in respect of the work or other subject-matter, (a) makes and caches, or does any act similar to caching, the reproduction in an automated manner for the purpose of providing the information location tool;

(b) communicates that reproduction to the public by telecommunication for the purpose of providing the information that has been located by the information location tool;

(c) does not modify the reproduction, other than for technical reasons;


(d) complies with any conditions relating to the making or caching, or doing of any act similar to caching, of reproductions of the work or other subject-matter, or to the communication of the reproductions to the public by telecommunication, that were specified in a manner consistent with industry practice by whoever made the work or other subject-matter available through the Internet or another digital network and that lend themselves to automated reading and execution; and

(e) does not interfere with the use of technology that is lawful and consistent with industry practice in order to obtain data on the use of the work or other subject-matter.

(3) If the provider receives a notice of claimed infringement, relating to a work or other subject-matter, that complies with subsection 41.25(2) after the work or other subject-matter has been removed from the electronic location set out in the notice, then subsection (1) applies, with respect to reproductions made from that electronic location, only to infringements that occurred before the day that is 30 days — or the period that may be prescribed by regulation — after the day on which the provider receives the notice.

(4) Subsection (1) does not apply to the provision of the information location tool if the provision of that tool constitutes an infringement of copyright under subsection 27(2.3).

(4.1) If it grants an injunction as set out in subsection (1), the court shall, among any other relevant factors, consider the following in establishing the terms of the injunction:

(a) the harm likely to be suffered by the copyright owner if steps are not taken to prevent or restrain the infringement; and

(b) the burden imposed on the provider and on the operation of the information location tool, including

(i) the aggregate effect of the injunction and any injunctions from other proceedings,

(ii) whether implementing the injunction would be technically feasible and effective in addressing the infringement,

(iii) whether implementing the injunction would interfere with the use of the information location tool for non-infringing acts, and

(iv) the availability of less burdensome and comparably effective means of preventing or restraining


the infringement.

(4.2) A court is not permitted to grant an injunction under section 39.1 against a provider who is the subject of an injunction set out in subsection (1).

(5) In this section, “information location tool” means any tool that makes it possible to locate information that is available through the Internet or another digital network.


Annex D: Chilean Notice Provisions (English Translation)

English Translation of provisions of Chilean law provided by the World Intellectual Property Organisation

Article 85O. Service providers who, at the request of a user, store, by themselves or through third parties, data in their network or system, or who perform search, crossreferencing or referencing services to an online site via information search engines, including hypertext links and directories, shall not be held liable for the data stored or references, provided that the provider: (a) does not have actual knowledge of the unlawful nature of the data; (b) does not receive any economic benefit that can be directly attributed to the infringing activity, in cases where he is entitled and able to control said activity; (c) publicly designates a representative for the service of the court orders referred to in the final subparagraph, in the form determined by the rules; and (d) withdraws or quickly disables access to the stored material, in accordance with the provisions of the following subparagraph. The service provider shall be deemed to have actual knowledge where a competent court of law, in accordance with the procedure established in Article 85R, has ordered the withdrawal of the data or the blocking of access thereto and the service provider, once he has been served with legal notice of said decision, fails to comply expeditiously therewith.

Article 85R. In respect of infringements of the rights recognized by this Law that have been committed in or via networks or systems controlled or operated by or for service providers, the holder of the respective rights or his representative may request the measures indicated in Article 85S as a preliminary or judicial measure. Where measures are requested on a preliminary basis, and provided that there are serious grounds, they may be ordered without hearing the content provider, subject to the provision of a prior deposit by the petitioner to the satisfaction of the court. This petition shall be heard by the civil court judge of the domicile of the service provider, without prejudice to any criminal proceedings that may be brought. For such purposes, the petition, in addition to meeting the D.O. May 4, requirements set out in numbers (1), (2) and (3) of Article 254 of the 2010 Code of Civil Procedure, shall indicate clearly: (a) the allegedly infringed rights, with a specific indication of the right and the infringement procedure; (b) the infringing material; and (c) the location of the infringing material in the respective networks or systems of the service provider. Once compliance has been achieved with the foregoing subparagraph, the court shall order without delay the withdrawal or blocking of the infringing content. Said decision shall be notified to the respective service provider in the form of a writ, and to the petitioner in the daily bulletin The content


provider concerned may, without prejudice to other rights, petition the court which issues the order to set aside the measure for restriction of access to or withdrawal of material. In order to do so, he must submit a request that meets the same requirements set out in the second subparagraph, and must provide any additional supporting material justifying this petition and state that he expressly recognizes the jurisdiction of the court hearing the matter. These proceedings shall be handled briefly and summarily, and any appeals shall be granted solely with a stay of execution, and shall enjoy priority in terms of being heard and decided upon by a court of appeal.

(Sections 85O and 85R Inserted by D.O. May 4, into LAW 20,435 Art. 1, No. 11. Law 17336, Date of publication : October 2, 1970 , Date of enactment : August 28, 1970 , Title : INTELLECTUAL PROPERTY , Latest version Date: May 4, 2010 , Entry into force : May 4, 2010 , Norm ID : 28933 , URL : http://www.leychile.cl/N?i=28933&f=20100504&p= )


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