This Advisory is intended to alert members to changes to their terms and conditions of service to their customers which may be required by ISPA becoming an Industry Representative Body (IRB).
While ISPA believes that the majority of its members will already be in compliance we request that all members take the time to read and follow this Advisory.
In May 2007 ISPA applied to the Department of Communications for recognition as an Industry Representative Body (IRB) under Chapter 11 of the Electronic Communications and Transactions Act (ECT Act). Under the ECT Act members of a recognised IRB are protected from legal liability in respect of content which is transmitted or stored on behalf of third parties.
In order for ISPA to receive this recognition it has to ensure that all of its members are in compliance with
ISPA amended its Code of Conduct on 28 February 2007 to ensure that it complies with the Guidelines. This in turn creates a requirement that all members check their standard terms and conditions to ensure that they comply with the requirements of the Code of Conduct as amended.
Members should note that the Guidelines set out both “minimum” and “preferred” requirements. The amended ISPA Code of Conduct is based on the “minimum” requirements although in some instances the “preferred” requirements are followed.
It is compulsory for members to comply with the “minimum” requirements while compliance with the “preferred” requirements is voluntary. The “preferred” requirements are regarded by the Department of Communications as reflecting international best practice and their adoption as being “desirable for responsible ISPs to aim for”.
Sections 10-13 of ISPA’s amended Code of Conduct
Members are required to review their existing standard terms and conditions against sections 10-13 to ensure compliance with the amended Code of Conduct, set out below:
“Standard terms and conditions”
- ISPA members must provide access to their standard terms and conditions on their web sites. These terms and conditions must be available to any potential customer prior to the commencement of any contract.
- Standard terms and conditions must contain:
- All information and terms relevant to the relationship with the recipient of the service;
- a requirement that the customer will not knowingly create, store or disseminate any illegal content;
- a commitment to lawful conduct in the use of the services, including copyright and intellectual property rights; and
- an undertaking not to send or promote the sending of spam.
- Standard terms and conditions must give an ISPA member the right to remove any content hosted by that member which it considers illegal or for which it has received a take-down notice.
- Standard terms and conditions must give the ISPA member the right to suspend or terminate the service of any customer that does not comply with the terms and conditions, Acceptable Use Policy or any other contractual obligations.”
For those members who wish to comply with the “preferred” requirements the standard terms and conditions should also cover:
- A commitment that recipients of the service shall adhere to the provisions of Chapter 7 of the ECT Act (the consumer protection provisions), if applicable;
- A commitment that a client shall have adequate safeguards to assist in the control and monitoring of minor’s access.
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