66
GOVERNMENT
No.GAZETTE,
23708
Act No. 25,2002
2002
2 AUGUST
ELECTRONIC
COMMUNICATIONS
AND
TRANSACTIONS ACT, 2002
(4) Subsection (1) does not apply whenthe recipientof the serviceis acting under the
authority or the controlof the service provider.
Information locationtools
76. A service provider is not liable for damages incurred by a person if the service
provider refers or links users to a web page containing an infringing data message or 5
infringing activity, by using information location tools, including a directory, index,
reference, pointer, or hyperlink, where the service provider( a ) does not have actual knowledge that the data message or
activity
an relating to
the data message is infringing the rights of that person;
(b) is not awareof facts or circumstances from which the infringing activity
or the 10
infringing nature of the data messageis apparent;
(c) doesnotreceiveafinancialbenefitdirectlyattributable
to theinfringing
activity; and
(d) removes, or disables access to, the reference or link to the data message or
activity within a reasonable time after being informed that
the data message or 15
the activity relating to such data message, infringes the rights of a person.
Take-down notification
and
77. (1) For thepurposes 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
include20
(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;
25
(e) the remedial action required tobe taken by the service provider in respect of
the complaint;
’(
telephonic and electronic contact details, if any, of the complainant;
(8) a statement that the complainant is acting in good faith;
(h) astatement by thecomplainantthattheinformation
in thetake-down
30
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 serviceproviderisnotliable
forwrongfultake-down
in responsetoa
35
notification.
No general obligation to monitor
78. (1) When providing the services contemplated in this Chapter there is no general
obligation on a service providerto(a)
transmits
stores;
which
or
itmonitor
data
the
or
40
( b ) actively seek facts or circumstances indicating an unlawful activity.
(2) The Minister may, subject to section 14 of the Constitution, prescribe procedures
for service-providers to( a ) inform the competent public authorities
of alleged illegal activities undertaken
or
information
provided
by
recipients
of
their service;
and
45
(b) to communicate to the competent authorities, at their request, information
enabling the identification of recipients of their service.
Savings
79. This Chapter does notaffect(a) any obligation founded on an agreement;
50