[12 August 2015] The Prevention and Combating of Trafficking in Persons Act 7 of 2013 came into force on 9 August 2015. The stated purpose of this Act is to
- give effect to the Republic’s obligations concerning the trafficking of persons in terms of international agreements;
- to provide for an offence of trafficking in persons and other offences associated with trafficking in persons;
- to provide for penalties that may be imposed in respect of the offences;
- to provide for measures to protect and assist victims of trafficking in persons;
- to provide for the coordinated implementation, application and administration of this Act;
- to prevent and combat the trafficking in persons within or across the borders of the Republic; and
- to provide for matters connected therewith.
The Act has some provisions directly applicable to electronic communications service providers and their statutory obligations regarding trafficking of persons. The following definitions are relevant:
“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;
Section 8 of the Act then sets out what is expected of electronic communications service providers (ECSPs). In our view this is the correct approach which emphasises that obligations on ECSPs are triggered by them becoming aware of the use of their services for conduct facilitating trafficking in persons: it is explicitly stated that ECSPs are not required to monitor data which it stores or transmits, nor are they required to take active steps to determine if their services are being used for the facilitation of trafficking. ECSPs are further given protection from liability in respect of reasonable steps taken as 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”.
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.
(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).