Regulations for domain name disputes

Johannesburg, 11 May 2007

The .za Domain Name Authority (.za DNA), has implemented a formal, regulated process that aims to provide an inexpensive, fast and easy way to resolve domain name disputes without the need to employ a lawyer.

The process utilises new regulations signed into power by the minister of communications, Dr Ivy Matsepe-Casaburri, in November last year, called "The Alternative Dispute Resolution Regulations".

The authority says South African businesses, especially in the burgeoning SME sector, are now registering their domain names as one of the first steps they take when planning their business.

Many register their .co.za domain name, only to find out that it has already intentionally been taken by another person or business.

Another scenario is when somebody has 'hijacked' their online brand by registering a domain name that is very similar to the business's name, or has even registered an abusive domain name that aims to defame their company.

Unfair advantage

"One of the most common problems we see is when a person or business registers a competitor's name online for financial gain, or to get an unfair advantage over competitors by denying them access to a domain name," says Dr Hasmukh Gajjar, chairman of the .za DNA. "They may also register an offensive domain name, which could bring another person or organisation into disrepute."

Prior to the new regulations, many South African domain name disputes were left unresolved, due to the lack of a regulated process. This meant the only way to get a domain name back or to close down an abusive Web site was to spend anything up to R250 000 employing the services of lawyers for drawn-out legal proceedings that could last years.

Gajjar says the new process, in essence a "domain name claims court", should reduce the amount of time and money spent on lodging a formal dispute in the courts. If people or businesses find that somebody has taken their domain names or registered an abusive domain name, the new regulations allow for a complaint to be lodged with independent adjudicators.

"The case is overseen by a panel of accredited and impartial adjudicators, which will make a ruling based on the evidence that is presented," says Gajjar.

The regulations currently apply to domain name disputes under the .co.za sub-domain only - as this is where domain name disputes can occur. Depending on demand, the .za DNA may consider advising the minister of communications to extend the application of the regulations to other .za sub-domains.

"If people or businesses want to lodge a complaint, they need to provide sufficient evidence proving that a domain name registration is abusive or offensive. The current owners of that name are also given the opportunity to prove why they should keep the name up and running."

Legally binding

The regulations also allow for an appeals process if one party is unhappy with the adjudicators' ruling. The final ruling is legally binding and the relevant authorities are obliged to enforce the decisions of the adjudicators within a prescribed amount of time.

Lodging a dispute with the authority will cost between R10 000 for a one-adjudicator panel and R24 000 for a three-adjudicator panel. An appeal will cost a further R12 000. The whole process from application to enforcement of the final verdict should take no longer than two months.

Gajjar says these fees are far lower than those incurred by taking the matter to court and are in place to prevent abuse of the dispute process and to help build up a fund that will be offered to businesses or individuals who qualify for financial assistance to lodge a dispute. The board of the authority has recently approved a 'strict eligibility criteria' to be used to assess applications for financial assistance.

The process prescribes that 10% of all fees paid are set aside for the exclusive use of individuals or business that require financial assistance to lodge or defend a domain name dispute.

"In the past, there have been very few ways for businesses or individuals to resolve domain name disputes," concludes Gajjar. "The regulations launched today will hopefully change that and give all South Africans and businesses a better chance to establish their brands' online presence."