The Department of Communications, in consultation with the Department of Trade and Industry, has set out a new framework for settling disputes over Internet domain names that fall under the .za domain.
The Alternative Dispute Resolution Regulations were published yesterday in Government Gazette number 29405, providing guidelines, rules and procedures for the resolution of domain name disputes.
The regulations, which originated out of the Electronic Communications and Transaction Act and were issued for public comment in 2005, also set out fee structures for the adjudication of disputes.
A complainant may request dispute resolution where he/she can prove they have rights to a name or mark that is identical, or similar to a domain name that was registered by someone else, the regulations say.
They also provide a mechanism for the registrant to demonstrate fair use, which may include Web sites operated solely in tribute to, or for fair criticism of a person or business, provided that the burden of proof shifts to the registrant that the domain name registration is not an abusive registration.
The regulations also provide for the accreditation of domain name dispute resolution service providers by the .za Domain Name Authority, it says.
Benefiting small business
Department of Communications spokesman Albi Modise says government aims to encourage small business owners to use the Internet to market their services and products, and the regulations will play a key role in protecting their domain names.
A complainant may choose to pay a fixed fee of R10 000 to the dispute resolution service provider for one adjudicator, or a fixed fee of R24 000 for three adjudicators to decide the dispute.
If the registrant chooses to have the dispute decided by three adjudicators, the complainant and the registrant share the cost at R12 000 each.
Modise notes that, compared to legal costs that would be charged if the dispute were to be taken to court, the fees charged for the adjudication of disputes are "quite reasonable".
A fund will be set up for complaints that need financial assistance, he says. A dialogue as to the logistics of the fund, including who will contribute to it, has not been finalised yet, he adds.
Appeal process
Nothing done in terms of the regulations prevents any party from litigating on any related matter in the High Court of the Republic of SA.
However, if legal proceedings are initiated during a domain name dispute, the adjudicator must suspend the dispute immediately. The fee for an appeal is a fixed sum of R24 000.
Additionally, a dispute that is a resubmission of a prior dispute that was decided on a previous occasion will be rejected without consideration of its merits.
An appeal panel shall consider appeals on the basis of a full review of the matter and may review procedural matters.
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