Freedom of speech is a fundamental right recognised in our Constitution. But that doesn’t mean everyone has to allow that speech anywhere you want to make it. By KEVIN CHARLESTON for GROUNDUP.
You can stop your drunken uncle from uttering his racist rants at your festive dinner table. Commercial enterprises have the right to limit “speech” on their communication platforms if they feel that content is going to harm them, their customers or their investors.
Internet service providers (ISPs) give us a connection to the public internet. For most of us, who cannot afford to host our own web-servers, they also provide shared web servers or hardware. In exchange, we pay them to provide us with a communication platform so that we can exercise our freedom of speech. This is particularly important for activists and critics who might not otherwise have access to places where their points may be heard.
And that’s where things get a bit messy.
Dr. Harris Steinman has published his CamCheck website on Hetzner South Africa’s shared website hosting platform since 2009. This website focuses on false and exaggerated medical advertising claims. Since almost all public advertising of normal medicines is heavily regulated (and thus there is little to criticise), much of the CamCheck’s attention is on Complementary or Alternative Medicines (CAM), over which there is virtually no regulation.
Steinman has also had significant success with complaints to the Advertising Standards Authority (ASA). The scamsters outed in such a manner are generally not particularly happy about this.
Albe Geldenhuys of USN is one advertiser who has been on the receiving end of a large number of adverse rulings from the ASA. According to the numerous articles about USN products on the Camcheck website, Geldenhuys has no proof of the claims made for his products, and when challenged merely changes the advertising slightly to make other equally evidence-free claims.
Steinman asked a pertinent question in response to years of proven false advertising: “Albe Geldenhuys of USN, a master scam artist?”
Rather than providing a reasoned response and actual proof that the claims in his advertisements are completely above board, Geldenhuys’ response has been to issue an ISPA “Take-down” request, demanding that Hetzner take down Camcheck site content of which he does not approve – claiming that it is “unlawful” because it is “defamatory”.
An ISP applies censorship without considering the evidence.
Hetzner merely passed that take-down request to Steinman, demanding that the offending claims be removed, without considering the validity of the take-down request. Hetzner said: “As a hosting company, Hetzner does not adjudicate whether the content is offensive or not. Our role is simply to enforce the take-down request… For you to re-enable the content in question, our suggestion would be to obtain a court judgement instructing Hetzner to allow the content in our hosting environment.”
Geldenhuys has offered no evidence that the content in question is defamatory or unlawful. He has not attempted to get an official opinion on this through the courts.
In other words, it doesn’t matter whether the accusation in the take-down request was correct or not: sentence has been passed and the accused must prove his innocence. Just making a complaint appears to be enough justification for Hetzner to apply censorship.
South African ISPs are (generally) all members of the ISPA (Internet Service Providers’ Association) which provides a standard code of conduct. Part of the code is a process that allows members of the public to lodge a request to ISPA for any content believed to be unlawful, requesting that the content must be removed This “Take-Down” procedure, and the code of conduct, is clearly and simply spelled out on the ISPA website.
Sections 25 and 26 of the code state: “If an ISPA member becomes aware of conduct or content which has been determined to be illegal, it must suspend or terminate the relevant customer’s service and report the conduct or content to the relevant law enforcement authority. The ISPA member must report such cases and any action taken to ISPA within a reasonable period of time.”
“ISPA members must establish a notification and take-down procedure for unlawful content and activity in accordance with ISPA’s take-down notification procedure, and respond expeditiously to such notifications.”
ISPA provides little guidance on what it means by “unlawful” content, but has commissioned a paper on “Undesirable content” which is published on its website. This document clearly recognises that legitimate criticism is free speech and should not be curtailed: “However the line between protected free speech, which legitimately criticises another person or entity, defamation and hate speech can be hotly contested and often difficult to distinguish. Clearly any effort to restrict speech in this area should be carefully considered, in order not to infringe on the positive effect of free speech which has been consistently emphasised by South African courts.”
It also gives a description of defamation: “A comment is defamatory if it would lower the reputation of an individual or entity amongst right thinking persons in the community. There are several defences to publishing defamatory material such as: truth and public benefit, fair comment, denial that the comment is defamatory, absence of intention etc. Defamation in South Africa applies to both the written and spoken word unlike the United Kingdom for example which separates them into libel (written) and slander (spoken).”
In other words, you would have to stretch things pretty far to determine that something which is truthful, in the public interest, and clearly stated as an opinion, is defamatory. I believe that someone who repeatedly and intentionally makes exaggerated claims for products that he sells without a shred of evidence to support those claims is committing fraud against consumers. I believe that the submissions of Albe Geldenhuys to the ASA in defence of his advertising, and his repeated infringements of the advertising code of conduct, are evidence of such advertising and consumer fraud.
There’s an interesting question here – was the take-down request valid? “In terms of section 77(2) of the Electronic Communications and Transactions Act, 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.”
The ISPA’s own paper identifies the fine line between defamation and valid but harsh criticism. It also acknowledges that defamation can only be dealt with in a civil action. Any take-down notice that claims defamation without a supporting civil action court order should therefore be invalid.
Surely the lawyers acting on behalf of Geldenhuys (Weavind & Weavind) would have been aware of this?
In terms of its own procedure, ISPA doesn’t vet the actual content of a complaint – ISPA merely checks that the complaint is correctly formulated and that the content in question is still active on the reported sites and providers. There is probably no reason to question its part in this process other than to ask what kind of advice ISPA gives its members in regard to complaints about defamation.
But unless ISPA makes provision to prevent thuggish censorship like this, the association can expect less public trust in the services of its members.
As for Hetzner, its advertising tag-line is “Trusted in Hosting”. Makes you think, doesn’t it (to quote another very old tagline)? Perhaps there’s an opening for a complaint with the ASA there.
Hetzner should have evaluated the complaint with more care, instead of just passing it on to Steinman saying: take it down or we’ll block you; come back with a court order and we’ll let you put it back. So much for 6 years of customer loyalty. So much for being a trusted hosting provider. Hetzner’s message to customers is essentially this: “If you put up something that somebody else doesn’t like, we are going to make you take it down without making him or her justify the request.”
Hetzner comes across as the ignorant executioner, only doing his job, unable to apply any rational thought to the reasons for doing it. In doing so, Hetzner has allowed itself to be used to effect cynical peremptory censorship, casually endangering our freedom of speech.
There’s a clear message for activists and critics of mainstream and well-connected and funded industry: don’t host with Hetzner. If you are hosted with Hetzner, take your site and run. In fact, don’t host with any South African internet service provider as long as the current “take-down” practice is in place. Make sure your websites are hosted on international sites, with providers that offer good protections for customers’ anonymity, and which are beyond the reach of shady lawyers.
Disclosure: I’m still at the wrong end of a defamation suit laid by Solal Technologies. They have not withdrawn their case, and have not responded. I believe that after two years this is clear evidence of an attempt to silence me through expensive legal entanglement. Details are available on the Quackdown site. DM
This feature was first published at www.groundup.org.za. Charleston is an IT specialist who devotes much of his spare time to advocating evidence-based medicine. The opinions expressed in this article are solely those of the author. No inference should be made on whether these reflect the editorial position of GroundUp or Daily Maverick.