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The APC European Internet Rights Project

Internet Censorship Case Study:
Biwater plc

By Chris Bailey
LabourNet


Background

Water supply is an important public issue in South Africa. Apartheid left behind a water supply system that, while giving most white South Africans access, leaves many black townships with woefully insufficient water services.

A major debate has been taking place on how to create adequate water supplies for these areas. The issue of privatisation has been at the centre of this debate. Arguments have been advanced that the capital for expanding the municipal water supply systems can only come through selling them off to multinational corporations. This has been strongly opposed by those who argue that equal development and access can only be ensured by keeping water in public hands.

The South African Municipal Workers' Union (SAMWU), many of whose members work in water supply, has been in the frontline of opposing water privatisation. It has used the Internet very effectively to publicise its campaign.

In 1997, the conflict between the opposing views focused on the town of Nelspruit, where the Town Council decided to take bids for a 30-year contract to run water supplies. Whoever won the contract for this first sell off would be in a very strong position to ultimately take over other major parts of South Africa's water supply. Competition was fierce. The frontrunner in the bidding was a British transnational corporation, Biwater Plc.



Threat

On 17th April 1998,Peter Carter-Ruck and Partners, a company renowned for handling libel actions, sent a letter to the British ISP, GreenNet, over a press release by SAMWU that was on the LabourNet website on the GreenNet server. Carter-Ruck was acting on behalf of Biwater. They indicated that unless the press release was removed immediately and this reported to them within seven days, legal action would be taken against GreenNet. They claimed the press release contained allegations that had already been the subject of court action against the Independent in 1994 and Private Eye in 1996. In both cases, the defendants had paid substantial damages and legal costs to Biwater and apologised for the allegations.

In fact, the press release simply referred to allegations that had been carried in the South African newspaper, Mail & Guardian in an article on April 11, 1997 entitled "Thatcher's pals bid for SA water". Legal action had not been taken against this article although Biwater had made threats against it in May1997. The central allegation in the article was that:

"Biwater was among a select group of civil contractors and defence manufacturers which benefited from a secret network that controlled the supply of British aid and arms to, and trade with, overseas countries initiated at the start of former prime minister Margaret Thatcher's rule."

It soon emerged that, simultaneous with the letter sent to GreenNet, a letter had also been sent to the South African ISP, SangoNet. This made a similar threat of court action unless the M & G article was removed immediately from its online archive, which was on the SangoNet server.



Issues Involved

The attempt by Biwater to remove the M & G article from an online archive and eliminate reference to it from the Internet was reminiscent of George Orwell's 1984. If they had succeeded it would have imposed a greater restriction on the Internet than exists at any public library in a democratic country.

On 24th April, Chris Bailey, webmaster of LabourNet, appealed for support from the Internet community to defend the Mail & Guardian article.
    "It is the attempt to remove all traces of the Mail and Guardian article from the Internet, including even archives, through intimidating people with threatened law suits that is totally unacceptable. This must not be allowed to happen and must be fought by the Internet community as a whole.

    Biwater has the power of money, we have the power of the Internet. We must use this to the full. The pages forced from the Internet by legal threats and intimidation must be given a much wider audience than they would otherwise have had, by disseminating them as widely as possible. This is our ultimate defence of Internet democracy."



Measures Taken To Counter The Threat

At an early stage it was decided that the main issue was to defend the M & G article. The SAMWU press release simply referred to this article and did not add anything new. It was removed from LabourNet with an announcement of what had happened and a link to the M & G article. SangoNet was prepared to defend this article. But now a problem arose, the Mail and Guardian itself decided to comply with the lawyers’ instructions. SangoNet could hardly insist that a customer keep material on its website if it did not want to.

At this point, LabourNet set out to trace the journalist who had written the article, Eddie Koch, to find out his position. Koch, who no longer worked for the Mail & Guardian, did want to defend his piece. He was adamant that it was accurate and truthful. It was in this context that LabourNet decided to defend the article and appealed for help to do so.

Both GreenNet and SangoNet are members of the Association for Progressive Communications (APC). They discussed their situation within APC. As a result of this, two other APC members, Inform in Denmark and Antenna in the Netherlands, approached LabourNet offering to help. They set up LabourNet Biwater mirror websites on their servers where the material removed from GreenNet and SangoNet could be placed. At the same time they issued a joint statement saying:

"APC has enabled communications between people during war, under dictatorships, and in areas of poverty where the financial means makes it hard to communicate at all. And to create a space for NGOs in the industrial and democratic countries, where normal freedom of speech is used to express various facts and opinions without problems.

We believe all people should have the right to use the Internet in order to seek out the truth. It's by sharing of information the truth can be reached."

Within days, it became clear from the server logs of Inform and Antenna that they now also faced a legal threat. Carter-Ruck and lawyers based in their respective countries were making frequent visits to the Biwater mirror sites. Inform and Antenna informed other APC members that they were not prepared to continue mirroring if they were the only ones. They appealed for other APC members to also make Biwater mirror sites. Their appeal was answered, eventually 13 APC members around the world mirrored the Biwater website.

Meanwhile LabourNet’s appeal for help was also being answered elsewhere. Other websites outside APC began to produce mirror sites. The online magazine Corporate Watch publicised the case.

Important international trade union organisations began to lend support too. The Public Services International (PSI), an international trade union federation with 513 affiliated trade unions in 137 countries around the world, issued a press statement condemning Biwater’s attempt to remove the M & G article from the Internet.

Besides reproducing the M & G article, those opposing Biwater’s censorship attempt made more extensive inquiries into some of the more dubious aspects of the company’s activities and publicised these on the Internet. A journalist working for LabourNet, Greg Dropkin, produced the first of these reports. The PSI commissioned an in depth report into Biwater from the Public Services Privatisation Research Unit (PSPRU). In a co-ordinated action between PSI, SAMWU and LabourNet this report was released simultaneously on all the mirror websites, on a number of trade union websites, including that of the 125 million member International Confederation of Free Trade Unions, and in printed form in a number of countries around the world.



Results Achieved

Biwater’s attempt to censor Internet debate on an issue of public interest was successfully opposed and seriously backfired on them. The article they tried to remove was widely reproduced and publicised in many countries around the world with no legal action taken anywhere. In addition, new detailed reports criticising their activities were produced and widely publicised. The resulting bad publicity over the role of the company and its attempts at censorship found its way back to the South African press, thus having the opposite effect to what they had intended.



Lessons Learned

The Biwater case highlighted a need for a core international network of websites to be able to come quickly to the defence of threatened content. It showed there is considerable strength in numbers, particularly when support is spread widely around the world. Serious threats of legal action existed while only one or two sites were defending the threatened material against censorship and this was the most critical stage. As soon as support got beyond a certain point it grew rapidly; the threat of legal action against any one organisation receded and became largely irrelevant. The Hydra like quality of the opposition Biwater faced, with its attempt to censor information on one website meaning it was soon reproduced internationally on a dozen more, could be used as an example to deter other censorship attempts, as was shown later by the Nu-Skin case.

As a result of the experience of the Biwater case APC began to consider the need for a Rapid Response Security Network that could quickly mirror websites threatened with censorship in a number of different countries.


November 2000.




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