COMMENT
On September 10, theMail & Guardianreceived a notice from our internet service provider (ISP), Linode. The company said it had received a “verified” complaint that this newspaper’s online platform had infringed upon the intellectual property rights of an individual – and that it had been forced to act under the US Digital Millennium Copyright Act (DMCA).
In brief: we’d been accused of plagiarism.
“You must remove access to the material immediately. If you do not, Linode must remove or disable access to the material expeditiously under federal law; this will require us to place restrictions on your Linode in 96 hours unless you comply , ”The notice read.
Linode went on to explain that it was merely passing on the complaint and had not sought to make a determination as to whether there was indeed an infringement .
What would become abundantly clear over the course of numerous emails between theM&Gand the company is that Linode was less concerned about whether we had plagiarised or not.
Instead, it continued to repeat one point: take the article down within 96 hours or we’ll shut your entire site down. Our questioning the veracity of the complaint did not seem to make any difference.
The article in question was the result of anM&Ginvestigation into a questionable R 14. 5-billion oil deal between South Africa and South Sudan, led by convicted fraudster Njock Ajuk Eyong.
Eyong is also known variously as NJ Ayuk and Njoy Ayuk Eyong.
We detailed how Eyong was convicted in the US of impersonating a congressman in order to obtain visas for people living in Cameroon. Twelve years later, Eyong now heads up a law firm headquartered in Equatorial Guinea and brokering energy deals across the African continent.
When approached for comment, that law firm – Centurion – sent theM&Ga cease-and-desist letter warning that “the full weight of the law will be speedily dispatched on theMail & Guardian” in the event of publication.
The investigation was published on June 21 2019. Our journalist,Athandiwe Saba, had sourced the US court records of Eyong’s previous conviction, worked contacts across the continent, including South Africa, and buttoned up the story.
The copy of our story on the complainant’s blog is dated June 3 2019. Ours was published on June 21 2019. The story was carried on a blog that had hitherto done no investigative journalism – haphazardly posting articles on media ethics. It had one author and no ‘about’ section.
This was suspicious. Investigative journalism is not something that happens overnight and in a vacuum. It’s usually the cumulative efforts of journalists patiently scraping away at layer upon layer of information, verifying facts and firming up sources cultivated over many years and as a result of previous work.
Several IT and web Answers have confirmed to theM&Gthat dates of publication can be easily manipulated. On the blog, the article in question also seems to have no history, that is, it does not have a digital footprint that should indicate it being published on the date claimed.
It all seemed too conveniently packaged.
The complainant in this case claimed that the heart of our story was plagiarised – the chunk detailing how Eyong had a history of dodgy dealings. Interestingly, the complainant seemed to have no concern about our identical headlines. Neither did Linode.
Still, it would be remiss of any news organization not to take an accusation of plagiarism seriously. In newspapers, stories do not appear in print as they were originally penned. A journalist’s story gets sent to a section editor, who will do the first edit of the story and ask the necessary questions. From there, it’s sent to the production department, where the chief sub-editor will do an initial edit before it goes to a team of sub-editors who will further interrogate the story and correct or change language in the story as is appropriate.
By the time the story is eventually published, it would have been seen and worked on by at least six sets of eyes and fingers. The finished article is the cumulative effort of all these people. For a journalist to plagiarise a story or part thereof, verbatim, is extremely difficult. Any and all changes affected leave a digital footprint.
Having reaffirmed that our story had not been plagiarised, we were intent on fighting this.
Our 96 – hour deadline was fast approaching – with compliance demanded by 2am on Saturday – by the time theM&Gprint edition hit the streets on Friday morning .
Fridays are traditionally the biggest days for online traffic at theM&G. This is when what appears in the weekly paper is published digitally too. It was another cracker edition – an eye-witness account of the criminal justice failure on femicide, riveting accounts of how rape, murder and drug abuse play out in the worst hit parts of South Africa, interviews with the newly appointed Constitutional Court justices, a further investigation into the VBS Mutual Bank scandal and much more.
But, shortly after 8am on Friday morning, Linode informed us that our account had been suspended for failure to comply. They’d jumped the gun. In effect, visitors to our site were met with the dreaded ‘404’ message. The M&G Online, a national news publisher and the oldest news site in Africa, had been taken down.
Linode responded to the uproar raised on Twitter saying: “As a US company obligated to comply with the DMCA, Linode policy is to forward any claim regarding the misuse of intellectual property to the customer involved in the dispute, who can then directly respond to the claimant or file a counterclaim.
“Like many others, Linode is often frustrated by the binary nature of the DMCA’s treatment of online content, as the law provides very little flexibility in the realm of intellectual property matters. ”
The response by Linode is a familiar line taken by ISPs in order to avoid future legal action.
Public interest lawyer Avani Singh said that the DMCA allows for ISPs to avoid liability if they act “expeditiously” in removing content, which effectively sees the content removed automatically with little consideration for whether the complaint is valid.
“In practice, the opportunity to challenge this only arises once the content has already been removed.Commentatorshave described the DMCA as “one of the biggest threats to free speech online”, because the ‘notice and take-down scheme ‘fails to provide affected websites with due process before the content is removed.
“This forced acquiescence – often in the face of a threat that one’s website will be taken down completely if the content is not removed – and the administrative burden of having to file a counter-notice to justify the content, risks impeding both free speech and procedural fairness, ”Singh said.
She added that matters are further complicated for non-US entities who have to deal with transnational jurisdiction should they choose to challenge the ISP in court.
TheM&Gtook down the story. Linode restored access to the website.
We decided to push back.
First, we republished the full story, as it appeared on our site, in a series of tweetshere.
We also decided that it was time to make public what was happening. We have been greatly heartened by the outpouring of support from near and far since we put out the alert. This clearly demonstrates how many others within and outside of journalism share the critical importance of a free press.
Investigative journalism is one of the assets that has discerned theM&Gfor many years and, as such, we have also assigned our award-winning investigative journalists to dig deeper into this complaint.
The use of the DMCA in the manner still unfolding in this saga is a clear perversion of the law. Most critically for journalism and the free flow of what we regard as critical information, it is a tool to enforce censorship.
We will not be cowed. We will not relent in our pursuit of holding the powerful to account. As custodians of this fine institution we will continue to pursue the highest tenet of journalism: truth.
Beauregard Tromp is the Mail & Guardian’s deputy editor
* Since the M&G made public this attack the stories on the complainant’s blog, including the one in question, have had their bylines changed.
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