Internet service providers’ responsibility regarding the protection of children online in South Africa
Increased penetration of the internet and subsequent use of social media has intensified susceptibility to cybercrimes against children. In South Africa, statistics show that children are mostly exposed to cybercrimes such as child pornography, online grooming and cyberbullying through use of social media platforms. Such social media platforms constitute internet service providers (ISPs), which have some level of control over the online platforms they provide. Notwithstanding the technological capabilities that some ISPs possess to monitor their platforms, the longstanding legislative approach in South Africa and other jurisdictions has been to grant ISPs limitation of liability protection from unlawful content hosted on their platforms and not place any monitoring obligations on the ISPs. Recently, however, there has been a diversion from this approach in other jurisdictions, where legislators place responsibility on ISPs to actively monitor or moderate their platforms for unlawful content and hold ISPs liable for cybercrimes where the ISPs fail to do so. To tackle the approach to be adopted in South Africa in relation to child online protection, I consider South Africa’s child cybercrimes statistics, legislation relating to child online protection and ISP lability, case law, legislative developments in foreign jurisdictions and the technological advancements available to ISPs. I conclude that South Africa’s legislation should divert from the approach of limitation of liability of ISPs in child online protection. I also conclude that South Africa has a contradictory legislative approach to ISP responsibility in child online protection. On the one hand, the Film and Publications Act 65 of 1996 (FPA) places obligations on childoriented online services to monitor content for prevention of cybercrimes against children. However, the Electronic Communications Transactions Act 25 of 2002 (ECTA) and the Cybercrimes Act 19 of 2020 (Cybercrimes Act) impose no obligations on ISPs to monitor online content for unlawful activity. I propose that the approach taken in the FPA on ISP responsibility in child online protection be adopted in South Africa through an amendment to ECTA and the Cybercrimes Act aligning them to the FPA.
A research report submitted in partial fulfilment of the requirements for the degree of Master of Laws by Coursework and Research Report to the Faculty of Commerce, Law and Management, School of Law, at the University of the Witwatersrand, Johannesburg, 2022