There is some confusion around the role that ISPs play regarding interactive or online gambling services. This is mainly as a result of a press release issued by the Gauteng Gambling Board (GGB) in which it claimed that it would pursue ISPs acting unlawfully to facilitate the provision of illegal interactive gambling services.
The press release came in the wake of the the decision of the North Gauteng High Court in the matter of Casino Enterprises (Pty) Limited (Swaziland) v Gauteng Gambling Board and Others (“the Piggs Peak judgment”) handed down on 20 August 2010, and notes the following expressed therein:
- The Piggs Peak judgment confirms that persons, entities or organisations, including ISPs, that facilitate the provision of on-line gambling are acting unlawfully.
- That ISPs that are aware that the content traversing their networks was illegal and they continued to allow this activity may be deemed to be involved in an illegal activity.
A review of the Piggs Peak judgment does not, however, reveal any basis for these statements (and it should be noted that the judgement itself has been taken in appeal).
There are two potential areas of overlap between the services provided by Internet access providers and the mandate of the Goverment in the form of the National and Provincial Gambling Boards to prevent and prosecute illegal gambling where it occurs in South Africa:
- Where an ISP provides services to users of an illegal interactive gambling service: here the ISP is not permitted to invade the privacy of its customers unless specifically authorised to do so nor is it permitted to monitor and/or intercept the electronic communications of its clients other than where explicitly permitted to do so under Regulation of Interception of Communications and Provision of Communication-related Information Act of 2002. Further an ISP is not obliged to monitor traffic on its network as provided for in section 78 of the Electronic Communications and Transactions Act of 2002; and
- Where an ISP provides services to the provider of an illegal interactive gambling service and is aware of the illegal nature of the service then it may be seen to be facilitating or acting as an accessory to the provision of illegal interactive gambling services.