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Published Apr 30, 22
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71. The scheme of ECTA supplies not just a legal structure, including specific statutory offenses, however also establishes a self-regulatory structure for details system provider. Provider can form a representative body (in other legal instruments recognized as an industry agent body or IRB) which might be recognised as such by the Minister of Communications by way of notice in the Gazette supplied, inter alia, membership of the body undergoes adequate requirements, members are subject to a code which attends to sufficient requirements of conduct and the representative body is capable of tracking and implementing its standard procedure adequately.

ISPA was acknowledged as a market representative body under section 71( 1 ) and the impact is two-fold: a. It validates that the Minister was pleased, under area 71( 2) of the Act, that; i. ISPA's members go through a standard procedure (subsection (a)) which would have been thought about by the Minister to be adequate for the purposes pondered in subsections (c) and (d); ii.

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While this at first blush might recommend that ECTA is prescriptive regarding what constitutes acceptable conduct, these sections should rather be seen in the context of safe harbour defences providing indemnity to company, or in the language of ECTA a "restriction of liability of service companies" (see the heading to Chapter XI and the preamble to area 72).

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The Guidelines explain the following in Part 1 para 1. Self regulation rather than legislation, The legislative technique in Chapter XI (ie; of ECTA), as is the case in other places in the world, is to position the focus for control on self-regulation by the market rather than straight applicable legislation or federal government guideline and intervention" While this is not binding, as demonstrated earlier it definitely is consistent with the objective of the legislature as I have actually considered it to be expressed in the body of ECTA.

The ECTA IRB Guidelines also discuss in Section 2 of Part 1 that they are based upon the following principles; 2. 1. Self regulation: It is chosen that the guideline and control of prohibited or undesirable conduct and content by ISPs and the recipients of their services must be worked out by the industry itself rather than the State.

This is in conformance with the arrangements of the ECT Act. (Emphasis included). 77. Area 5 of Part 1 of the Guidelines sets out minimum requirements that include a requirement that members of an industry representative body, such as the respondent; a. will not send or promote the sending of spam and will take sensible measures to ensure that their networks are not used by others for this purpose.

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8.1 and 5. 8.2); b. will follow finest market practice in providing anti-spam software to recipients of the service in order that they can choose to reduce the amount of spam received on their e-mail accounts (para 6. 8). 78. The participant's standard procedure, which was accepted for the functions of allowing the Minister to acknowledge it as a representative body, handle spam in a number of areas; the most crucial of which for present functions are sections 14 and 15 to be found in Part E.

The arrangements read: "E. Unsolicited interactions (" spam") ISPA members need to not send or promote the sending out of unsolicited bulk email and should take sensible measures to ensure that their networks are not utilized by others for this purpose. ISPA members must likewise comply with the provisions of section 45( 1) of the ECT Act, and should not send out or promote the sending of unsolicited business interactions that do not comply with the arrangements of section 45( 1) of the ECT Act.

It appears that where there is an overlapping, the standard procedure offered for in ECTA, which is an earlier enactment, is intended to serve the very same function as pondered in the certified public accountant up until amended or supplanted by a code prescribed pursuant to section 82 of that Act. This would also discuss why the code of conduct arrangements of ECTA were exempt to the consequential modifications and substitutions effected under the Arrange 1 (" Modification of Laws") provisions check out with section 121 of the CPA.

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( 3) Any interaction for the purpose of direct marketing need to include (a) details of the identity of the sender or the person on whose behalf the communication has actually been sent out; and (b) an address or other contact details to which the recipient may send a request that such interactions cease." 81 (Fibre Connection).

On the contrary, area 4 (2 )( b) of ECTA recognises that requirements can be validly developed in regard of the way in which data messages will be accepted and area 2. Fibre Connection in Johannesburg. 1 of the ECTA IRB Guidelines identifies that undesirable conduct and material can also be controlled for by a market agent body such as the participant.

It appears that the applicant looked for to adopt a line of argument comparable to the one that was successful prior to the 4th Circuit Court of Appeal in Omega World Travel, particularly that the making it possible for legislation, the CAN-SPAM Act, recommended an appropriate national standard which did not result in Omega falling within the definition of an unlawful spammer, and because this Act pre-empted the State legislation upon which Mummagraphics relied, the latter could not fulfill the requirement of fact of material in order to defeat a disparagement match and was appropriately discovered responsible to pay Omega damages.

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As currently demonstrated there co-exists along with the legislative sanctions a different self-regulatory routine which is anticipated to deal not only with unlawful activity in the sending of unsolicited bulk emails but likewise "unacceptable" (being the term used in the ECTA IRB Standards) associated activities in an effective manner. Fibre Connection around Johannesburg. 83. In the result the respondent has actually succeeded in rebutting the reasoning of unlawfulness by demonstrating that the defamatory matter held true and that its publication remained in the public interest.

This defence rests in part on a finding that the defamatory matter was released in the discharge of a responsibility, or the exercise of a right, to others who had a responsibility or interest to receive it (Borgin v De Villiers and another 1980 (3) SA 556 (A) at 577D-G).

Since I have already found one of the defences raised by the participant to be sound, it would be improper to deal with a problem which needs to dig with far greater detail into the nature of the participant's rights and duties and the ancillary powers that include the responsibilities of being a self-regulator topic to the broad concepts set out in the ECTA IRB Guidelines.

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Everyone can liberty of expression, which consists of- Flexibility to get or impart details or ideas; 22 Liberty of trade, profession and occupation Every resident has the right to select their trade, profession or occupation freely. The practice of a trade, occupation or profession might be regulated by law." 86.

The United States Supreme Court also held that marketing serves an important public function by guaranteeing a free flow of information important to the effective allocation of resources in the market. There are likewise countervailing constitutional rights that need to be thought about; in particular the rights to personal privacy (area 14) and to property (section 25).

Insofar as trespass is concerned the Californian Supreme Court on appeal upset a series of earlier choices by holding that reliance on this ground might have chilling result on internet activity see Intel Corp.

89. I should add that the applicant looked for to draw the example that it functions much like a marketing company that prints pamphlets which are disseminated through the post to unsolicited receivers.

Presumably in order to do so it would have to disclose the source of its lists, a workout that would expose how addresses were gotten or collected and their expense. 91. I am therefore not able to discover, on the evidence provided prior to me, that the candidate's humans rights have been infringed. Fibre Connection around Johannesburg.

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PERMISSION 92. Permission or volenti non fit iniuria requires the person to have granted at least the deliberate infliction of harm and requires some examination into the libelled person's frame of mind at the time the consent was provided. Consent is absent if it was caused by scams, force or other forms of pressure.

The applicant described that the endeavor was provided when its name was once again listed on the participant's Hall of Pity in 2009. The participant informed him that an undertaking would have to be offered that the candidate would not again send out unsolicited bulk emails.

95. The candidate does not contend that it was pressurised to sign the endeavor; just that Mr Ketler had not taken legal guidance at the time and was for that reason unaware of other recourses available to it, although Mr Ketler does not describe what they were. He nevertheless claims to have actually been desperate to have the applicant's name got rid of from the Hall of Pity.

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It is difficult to follow the candidate's contentions. The applicant did not seriously challenge that it sent out spam prior to offering the endeavor and the court has found that it did send unsolicited bulk emails after the initial removal of its name. There is therefore nothing prior to me to demonstrate that the candidate did not spam prior to the endeavor.

The only submission left is that the applicant failed to first obtain legal recommendations before finalizing. The applicant does not recommend that it was precluded from doing so. It certainly had adequate time to assess the actions it wished to take after it was noted and before choosing to sign the endeavor.

In my view the authorization is excellent and its purported withdrawal only after the defamatory matter was released is unimportant; it would only matter if the withdrawal preceded the character assassination. As long as the permission stayed extant, the participant was entitled to depend on it in order to relist the candidate's name.

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The candidate likewise competed that irrespective of its undertaking, the participant could just relist the candidate on its Hall of Pity supplied the applicant was first paid for a chance to be heard. 100 (Fibre Connection in Johannesburg). The right to be heard is not restricted to administrative action taken by an organ of State.

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101. A person generally has a right to be heard when his/her rights or interests may be prejudicially affected by the decision to be taken whether administratively or where the right to do so arises from a special relationship developed in between them as determined under law. 102. In today case the participant has acted pursuant to a power accorded to it to self-regulate an industry and the ancillary rights that come with it.



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103. As soon as again it is unnecessary to finally determine this point since even if it was entitled to a hearing prior to the relisting, the applicant selected the courts as the forum to demonstrate that it did not spam. The applicant stopped working. I do not think that this is the type of case where a procedural irregularity vitiates the initial decision irrespective of its accuracy, particularly where a full right of audi would permit a spammer to continue sending unsolicited bulk email indefinitely till the last resolution of the disagreement (which would consist of rights of review and appeal prior to a court), whereas making representations after the relisting, either to have its name once again got rid of or in respect of the period of the listing, might trigger little or no prejudice.

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