[12 August 2015]

Passed in 2013, the Prevention and Combating of Trafficking in Persons Act aims to:

• Uphold South Africa’s commitments under international agreements regarding human trafficking.
• Criminalize trafficking and related offenses.
• Establish penalties for those crimes.
• Protect and support victims of trafficking.
• Ensure coordinated efforts across government departments to enforce the Act.
• Prevent human trafficking within and across South Africa’s borders.
• Address other relevant issues related to human trafficking.

Prevention and Combating of Trafficking in Persons Act 7 of 2013

The Act includes specific requirements for electronic communications service providers in connection with human trafficking. These definitions are important for interpreting those requirements:

“electronic communications” means the emission, transmission or reception of information, including without limitation, voice, sound, data, text, video, animation, visual images, moving images and pictures, signals or a combination thereof by means of magnetism, radio or other electromagnetic waves, optical, electromagnetic systems or any agency of a like nature, whether with or without the aid of tangible conduct;

“electronic communications identity number” means a technical identification label which represents the origin or destination of electronic communications traffic, as a rule clearly identified by a logical or virtual identity number or address assigned to a customer of an electronic communications service provider (such as a telephone number, cellular phone number, e-mail address with or without a corresponding address, web address with or without a corresponding IP address or other subscriber number);

“electronic communications service provider” means a person who is licensed or exempted from being licensed in terms of Chapter 3 of the Electronic Communications Act, 2005 (Act No. 36 of 2005), to provide an electronic communications service;

The law (Section 8 of the Act) clarifies what’s expected of electronic communication companies (ECSPs) only after they become aware that their services are being used for human trafficking. This, in our opinion, is the right approach. It makes it clear that ECSPs don’t have to constantly monitor all the data they store or transmit. They also don’t need to actively search for signs of trafficking on their platforms. However, the law does encourage them to take reasonable steps to preserve evidence if needed by law enforcement.

8. Conduct facilitating trafficking in persons

(1)     Any person who-

(a)     intentionally leases or subleases any room, house, building or establishment for facilitating or promoting trafficking in persons or allows it to be used or ought reasonably to have known or suspected that it will be used to facilitate or promote trafficking in persons;

(b)     subsequent to the lease or sublease of any room, house, building or establishment, becomes aware or ought reasonably to have known or suspected that it is being used to facilitate or promote trafficking in persons and fails to report that knowledge to a police official;

(c)     intentionally advertises, publishes, prints, broadcasts, distributes or causes the advertisement, publication, printing, broadcast or distribution of information that facilitates or promotes trafficking in persons by any means, including the use of the internet or other information technology; or

(d)     finances, controls or organises the commission of an offence under this Chapter,

is guilty of an offence.

(2)

(a)     An electronic communications service provider operating in the Republic must take all reasonable steps to prevent the use of its service for the hosting of information referred to in subsection (1)(c).

(b)     An electronic communications service provider that is aware or becomes aware of any electronic communications which contain information referred to in subsection (1)(c) and which is stored upon or transmitted over its electronic communications system must-

(i)      without delay report the electronic communications identity number from which those electronic communications originated and any other particulars available to such electronic communications service provider which can be used to identify the person or electronic communications service provider (including an electronic communications service provider operating outside the Republic) from who or from which those electronic communications originated, to the South African Police Service;

(ii)     take such reasonable steps as are necessary to preserve evidence as may be required by the relevant investigation and prosecuting authorities, for purposes of investigation and prosecution by the relevant authorities; and

(iii)    without delay take such reasonable steps as are necessary to prevent continued access to those electronic communications-

(aa)    by any of the customers of that electronic communications service provider; or

(bb)   by any person if they are stored on the system of the electronic communications service provider.

(3)     An electronic communications service provider which fails to comply with the provisions of subsection (2)(a) or (b) is guilty of an offence.

(4)     Nothing in this section places a general obligation on an electronic communications service provider to-

(a)     monitor the data which it transmits or stores; or

(b)     actively seek facts or circumstances indicating an unlawful activity.

(5)     An electronic communications service provider is not liable for any loss sustained by or damage caused to any person as a result of any action taken in good faith in terms of subsection (2)(b)(iii).