Cyber squatting might soon be outlawed as policy makers and lawyers thrash out the final terms of regulations to the Electronic Communications Act that would deal with domain name disputes.
The new regulations which it is hoped will be in place by early next year, will prevent a person registering a major company name, as an example, and sitting on that domain name to the detriment of the company that has long had rights, such as trade mark rights to that name.
It will bring a needed injection of practicality to legislation that is high in positive intent, but not always practical because of government failures to give force to some of its own laws.
Associate at Bowman Gilfillan and a trainer in IT and the Law for Johannesburg company, AstroTech, Warren Weertman says that although aspects of the ECT are “excellent, for example the consumer protection provisions, the ECT needs to be reviewed. There are areas that should be excluded, for example, those referring to critical data bases.
“If a person operates a critical data base determined by the Minister of Communications in terms of ECT they have to register it and can’t sell it. If they want to sell a company that operates a critical data base they may have to get ministerial approval.” This might include hospitals or the stock exchange, but because no critical data bases have been declared, it is uncertain what the lawmakers intended.
He says that, “cryptography and registration should be left out. The Regulation of Interception of Communications Act (RCI) says police can apply for a court order that would compel persons who provides cryptography products to help decrypt a message but nine times out of 10, cryptographers cannot always crack their own systems.”
Professor David Taylor, an associate professor of law at the University of South Africa, and co-presenter on AstroTech’s IT and the Law course, adds, “the law says certain things must be signed with an advanced digital signature, but advanced digital signatures must be sold by vendors registered with an accreditation body established by the Department of Communications - which hasn’t set up the body.”
No one would quibble about blocking porn sites at the office but is it an invasion of the constitutional rights to privacy and freedom of expression to monitor employees email?
Weertman says in terms of the 2002 Regulation of Interception of Communications Act, “employers can monitor phone calls and now emails. Email has to be in relation to the operation of the business, employees should not use email for private purposes at work unless their company specifically allows this.”
But, and this is the part employees want to hear, “the law has yet to be tested. It would be for the courts to decide whether this clause is unconstitutional or not. Section 36 of the constitution allows for the limitation of rights in reasonable and justifiable circumstances.”
Neither this, nor the Electronic Communications Act of 2000 has been tested before the courts in any meaningful way.
Professor Taylor is ambivalent about controversy around the screening of employees’ emails. “Employers can say the internet and email is only a work tool, but employers tried to do that when telephones became common in the workplace. You can’t give a person a telephone and not expect them to use it for personal purposes, and the same applies to internet and email.”
He says a ruling in the workplace forbidding this could cause more headaches than those it seeks to prevent. “If one person ignores this then the company will have to take disciplinary action. It is better to set up parameters that must not be exceeded, for example, don’t send out emails under the company’s name.”
Professor Taylor says that “IT brought about a whole lot of questions that are not easy to deal with in terms of conventional law,
“One of the biggest issues was that people were not sure that digital documents would be accepted in court. The law says they are admissible, anything required to be in writing can be a data message, except for wills and the purchase of immovable property.”
But there is uncertainty about whether, as an example, Bills of Exchange can be issued digitally? “In my opinion they can’t, but there is division.”
Taylor points out that “a contract is concluded when acceptance is received in the computer.” The law is wise to shysters saying they never saw the email, “the law says the moment my computer system receives that message and I am capable of receiving it then the contract is concluded.”
* AstroTech’s next IT and the Law course will be held in Johannesburg from 25 to 27 October, call Debby Bosch or Fuwaad Mahmood 011 453 5291 or email:
Issued by: Charlene Smith, Johannesburg
Date: 18 October 2006