Cyber Law
Websites
How is a website protected legally?
Generally, a website may comprise a number of intellectual property rights which are protected by different South African Acts.
Copyright
The most important laws which apply to websites are copyright laws. In this regard, the Copyright Act lists a number of different types of “works” which are eligible for copyright protection. Some of the “works” which may be applicable to websites include the following:
literary works, which include the general readable content, newsletters, databases, emails and other information published on the website;
artistic work which may include logos, banners, icons, photographs and other graphic design elements; and
published edition which relates to the lay-out of the website and pages.

Depending on the nature of the website, other “works” may also be incorporated, such as computer software programs, musical works and films (video clips). Save for films, it is not possible to register these copyrighted works in South Africa. Copyright subsists automatically, provided that certain requirements are met. Copyright is generally best protected by contracts between parties and clear legal notices.
Domain Names and Trademarks
The domain name, the business’ name and product names reflected on a website may also incorporate trade marks. Trademarks can be registered in terms of the Trademarks Act, and it is advisable to do so to ensure that third parties do not adopt or register the same name or a similar name which may confuse customers and internet visitors. Before starting a website, registering a distinctive domain name, or adopting a business name, it is strongly recommended that you first instruct us to conduct an availability search.
Terms and Conditions
Most websites are also governed by certain legal notices which create contractual relationships and bind visitors to certain terms and conditions for using the website. To protect consumers, and to disclaim the website owner of certain liabilities, it is necessary to set and publish reasonable and clear standard terms and conditions for using a website.

Apart from legal aspects, there may of course also be technical mechanisms to protect online data and unauthorised access to websites.
Who owns the copyright in a website?
The ownership of the copyright relating to a website would depend on the nature and functionality of the website. However, generally, the ownership of the copyright in the design, lay-out and the specific concept of a website will be claimed by the owner of the website. In the event that the website owner contracted a graphic-designer to assist with the website design, the ownership of the website design may vest in the independent graphic designer. To ensure that the website owner acquires the ownership of the copyright, it is necessary to enter into a written agreement with the graphic designer to take assignment of the copyright. In this regard, it should be borne in mind that copyright can generally only be assigned in writing.

If the website provides, for instance, for facilities to enable consumers to upload materials, as commentary and photographs, it is possible that the website owner will not claim ownership of the copyright in such materials. However, it is best that this aspect clearly be described in the Terms and Conditions which governs the use of the services offered by the website.

The website’s Terms and Conditions should include a clear copyright notice on the ownership and usage terms of the copyright of all materials available on the website. Alternatively, a separate Copyright Notice could be added.

Generally, it is good practice to indicate a general copyright notice at the bottom of the website which could simply read as something like: De Kock Attorneys © 2015.
What mechanisms exist to remove a website?
A website can be attacked and taken down under certain circumstances provided for in a number of South African Acts.

In this regard, if for instance, the use of a domain name constitutes trade mark infringement, the infringed party could apply to the High Court for an interdict in terms of the Trade Marks Act. Alternatively, the infringed party could institute a Domain Name Dispute with the .CO.ZA Domain Name Authority at DomainDisputes.co.za. If successful, the Adjudicator could order the transfer of the domain name which could result in the website being taken down from the internet.

The courts could provide similar relief if an interdict is sought based on copyright infringement or defamation or hate speech. The Electronic Communications Act also makes provision for the take down of websites which infringe rights of others.

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Domain names
Domain name registrations:
Due to the prominence of the internet and electronic commerce, we encourage clients who register trade marks to also consider registering domain names.

Domain names have a lot in common with trade marks, in as much as both are used to distinguish the goods and services of one trader from the goods and services of another. If you intend trading on the internet, it is necessary to register a domain name, to establish an internet presence. A domain name therefore serves as a self-chosen contact address on the internet. The most commonly used commercial space on the internet in South Africa is .CO.ZA. This domain level is currently administrated by a private company, called UniForum SA. Unlike trade marks, domain names are registered on a “first come, first serve” basis and there are no strict registration or use requirements.
Domain name disputes:
Currently there is no cross-referencing between the .CO.ZA Domain Name Register, the South African Trade Marks Register, or South African Companies Register. This means that, although a name may be available and registrable as a CO.ZA domain name on the internet, it is not necessarily safe to use in trade, as a company name, or available to register as a trade mark. This situation often leads to disputes between domain name owners and trade mark owners.

A CO.ZA domain name registration is currently not a statutory right. Use or registration of a domain name can merely afford a person common law rights in a name, if the name has acquired a reputation. Therefore, if you have adopted a name as a domain name and are using it on the internet, and have not yet also obtained registration of the name as a trade mark on the Trade Marks Register, it is possible that there may be a third party with a stronger right to the name, who may have rights to compel you to transfer your domain name, based on the strong statutory remedies provided for in the Trade Marks Act. It is recommended that distinctive domain names are registered as trade marks on the Trade Marks Register to obtain strong and statutory protection for such mark.

Disputes in respect of .CO.ZA domain names can be dealt with by using online procedures. In this regard, the Alternative Dispute Resolution Regulations, made under Section 69 of the Electronics Communication Transactions Act 2002, were published in the Government Gazette in November 2008.

In short, these Regulations provide for online procedures whereby a person can lodge a dispute against a .CO.ZA domain name with an accredited domain name dispute resolution service provider. The provider must forward a copy of the complaint to the registrant. The Registrant must then lodge a Response within 20 days. Within 5 days from receiving the Response, the Complainant may lodge a further reply. Upon expiry of 5 days, and no later than 2 days thereafter, the provider must appoint an Adjudicator. The Adjudicator must then forward its decision within 14 days of appointment. In the dispute document, the Complainant in such proceedings must submit, in accordance with the prescribed procedure, and on a balance of probabilities, that the domain name is either an abusive registration or an offensive registration.

An abusive registration means that the domain name either: (a) was registered or otherwise acquired in a manner which, at the time when the registration or acquisition took place, took unfair advantage of, or was unfairly detrimental to the complainant’s rights; or (b) has been used in manner that takes unfair advantage of, or is unfairly detrimental to the complainant’s rights.

An offensive registration means a domain name in which the complainant cannot necessarily establish rights, but the registration of which is contrary to law, contra bonus moris or is likely to give offence to any class of persons.

To further succeed in proving that a domain name is an abusive registration, the Complainants must show on balance of probabilities (a) that the Complainant has rights in the respective name/mark; and (b) that the name/mark is identical/similar to the domain name; and (c) that the domain name, in the hands of the Registrant, is an abusive registration. The Regulations also provide lists of factors which could serve as indicators of an abusive or offensive registration. These factors mostly relate to the facts and background of the matter.

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Protection of Personal Information
Why is the POPI Act necessary?
The need to protect personal information stems from a person’s “right to privacy”. The “right to privacy” implies inter alia that any person should have “the right to be left alone” and entitled to control his or her personal information. The right to privacy is entrenched in the Bill of Rights in the Constitution of the Republic of South Africa, as Section 14 reads as follows:
“Everyone has the right to privacy, which includes the right not to have:

a)Their personal home searched;
b)Their property searched;
c)Their possessions searched; or
d)The privacy of the communications infringed.”

In the course of trade, it is inevitable that customers and supplier will exchange certain details. Due to the nature of data collecting processes, especially via different forms of technology, consumers sharing personal information with suppliers become vulnerable to physically lose control over the use of their personal information. Loss or misuse of personal information may, for instance, lead to damages, inconvenience, possible physical dangers and/or identity theft.

The main objection of the proposed Protection of Personal Information Act (“POPI” Act) is thus to set national legislation in place to give effect of the constitutional “right of privacy” in trade, by establishing a person’s rights and remedies to protect his or her personal information, and establishing a regulatory framework to help enforce the protection for personal information.

In addition, as personal information may often be shared cross-country borders, the protection of personal information is an universal issue and the POPI Act should ensure that South Africa maintain an adequate level of data protection to meet the requirements of the leading EU Directive and other international standards.

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JACO GROBLER
JANA DOUSSY
Liani van Tonder
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