UNIVERSITY OF SOUTH AFRICA
College of Law
⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄⋄
LML4810: Law of Electronic Commerce
Assessment 02 | Second Semester 2026
⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄⋄
LML4810
Module Code:
Law of Electronic Commerce
Module Name:
ISP Liability Regime under the ECT Act 25
Essay Topic:
of 2002
Assessment 02/2026
Assignment Number:
278100
Unique Number:
07 September 2026
Due Date:
25
Total Marks:
Submitted in partial fulfilment of the requirements
for Law of Electronic Commerce, UNISA 2026
, UNISA | LML4810 ISP Liability under ECTA
Question 2.1
Identify and discuss the provisions under the Electronic Communications and Transactions
Act 25 of 2002 (ECTA) that give rise to the ISP regime in South Africa. (How a ‘service provider’
is defined and regulated in terms of the ECTA). (10 marks)
2.1.1 The legislative source of the ISP regime
Before the ECT Act came into force, an internet service provider carrying third-party traffic
across its network fell to be assessed under the ordinary common law of delict, copyright and
the actio injuriarum, none of which had been designed with a passive electronic intermediary
in mind.1 An access provider transmitting a defamatory email, or a hosting company storing
an infringing music file uploaded by a subscriber, risked being treated in the same way as a
newspaper publisher, even though it had neither authored nor exercised any editorial control
over the content.2 Chapter XI of the Electronic Communications and Transactions Act 25 of
2002, comprising sections 70 to 79, was inserted specifically to resolve this mismatch by
creating what is generally described as a statutory ‘safe harbour’ for information system ser-
vice providers.3 The chapter does not abolish the underlying causes of action in intellectual
property infringement, defamation, product liability or unfair competition; it instead provides
a shield of limited liability that a qualifying service provider may raise once those causes of
action are established against it.4
2.1.2 The statutory definition of ‘service provider’
Section 70 of the ECT Act defines a ‘service provider’ as any person providing information
system services, and an ‘information system service’ is defined widely enough to include the
provision of connections, the operation of facilities for information systems, the transmission,
routing or storage of data messages, and the provision of other services in relation to data
messages.5 This definition is deliberately technology-neutral and function-based rather than
confined to traditional access providers. It extends to entities performing conduit, caching
or hosting functions and, on the reasoning later applied in Ketler, is broad enough to capture
1
J Buys, ‘The Regulation of Internet Service Providers under South African Law’ (2003) TSAR 87.
2
Isparta v Richter 2013 (6) SA 529 (GP) para 40.
3
Electronic Communications and Transactions Act 25 of 2002, ss 70–79.
4
Ketler Investments CC t/a Ketler Presentations v Internet Service Providers’ Association [2014] 1 All SA 566
(GSJ) para 71.
5
Electronic Communications and Transactions Act 25 of 2002, s 70 read with s 1 (definition of ‘information
system’).
Page 2 of 13
College of Law
⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄⋄
LML4810: Law of Electronic Commerce
Assessment 02 | Second Semester 2026
⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄⋄
LML4810
Module Code:
Law of Electronic Commerce
Module Name:
ISP Liability Regime under the ECT Act 25
Essay Topic:
of 2002
Assessment 02/2026
Assignment Number:
278100
Unique Number:
07 September 2026
Due Date:
25
Total Marks:
Submitted in partial fulfilment of the requirements
for Law of Electronic Commerce, UNISA 2026
, UNISA | LML4810 ISP Liability under ECTA
Question 2.1
Identify and discuss the provisions under the Electronic Communications and Transactions
Act 25 of 2002 (ECTA) that give rise to the ISP regime in South Africa. (How a ‘service provider’
is defined and regulated in terms of the ECTA). (10 marks)
2.1.1 The legislative source of the ISP regime
Before the ECT Act came into force, an internet service provider carrying third-party traffic
across its network fell to be assessed under the ordinary common law of delict, copyright and
the actio injuriarum, none of which had been designed with a passive electronic intermediary
in mind.1 An access provider transmitting a defamatory email, or a hosting company storing
an infringing music file uploaded by a subscriber, risked being treated in the same way as a
newspaper publisher, even though it had neither authored nor exercised any editorial control
over the content.2 Chapter XI of the Electronic Communications and Transactions Act 25 of
2002, comprising sections 70 to 79, was inserted specifically to resolve this mismatch by
creating what is generally described as a statutory ‘safe harbour’ for information system ser-
vice providers.3 The chapter does not abolish the underlying causes of action in intellectual
property infringement, defamation, product liability or unfair competition; it instead provides
a shield of limited liability that a qualifying service provider may raise once those causes of
action are established against it.4
2.1.2 The statutory definition of ‘service provider’
Section 70 of the ECT Act defines a ‘service provider’ as any person providing information
system services, and an ‘information system service’ is defined widely enough to include the
provision of connections, the operation of facilities for information systems, the transmission,
routing or storage of data messages, and the provision of other services in relation to data
messages.5 This definition is deliberately technology-neutral and function-based rather than
confined to traditional access providers. It extends to entities performing conduit, caching
or hosting functions and, on the reasoning later applied in Ketler, is broad enough to capture
1
J Buys, ‘The Regulation of Internet Service Providers under South African Law’ (2003) TSAR 87.
2
Isparta v Richter 2013 (6) SA 529 (GP) para 40.
3
Electronic Communications and Transactions Act 25 of 2002, ss 70–79.
4
Ketler Investments CC t/a Ketler Presentations v Internet Service Providers’ Association [2014] 1 All SA 566
(GSJ) para 71.
5
Electronic Communications and Transactions Act 25 of 2002, s 70 read with s 1 (definition of ‘information
system’).
Page 2 of 13
