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BUILDING A WEB SITE: LEGAL ISSUESBUILDING A WEB SITE: LEGAL ISSUES

LECTURER: Wilhelm Rothman

[email protected]

31 MAY 2004

BACKGROUND OF PRESENTER


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Project: Kriges Krag. Athletic Clothing boutique.

Points Of Discussion

1. The law of contract and the Internet.

2. Consumer protection.

3. Privacy.

4. Registration and Domain Name Dispute

5. Intellectual Property Infringements

a) Deep linking

b) Framing material from another website.


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Motivation For Considering Legal Issues

Van der Merwe, D. (2000:131), describes South

Africa as a Rechtstaat, meaning that SouthAfrica is governed by law as the ultimate

authority. Human rights of the individual are

protected to the utmost by the new Constitution.


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Law of Obligations

1. The Law of Delict.Any harm caused by wrongful acts may lead to compensation paid by the instigator. This may

be damage caused by a virus, security breach or publication that may have lead to defamation

as in the case of Dow Jones & Co. Inc v. Gutnick [2002] HCA 56 (10 December 2002). (High

Court of Australia, 2002).

2. The Law of ContractThe e-commerce promise encompasses an agreement, which will create legal enforceable

rights and duties. In selling on the Internet for example the rights of the customer is entrenched

in the ECT Act. E-contracting needs special attention to ensure that all parties agree on certain

terms and conditions and above all abide by South African law.

The importance of these laws must be understood in the light of e-commerce, for e-

commerce may increase vulnerability of any party using the Internet.


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Law of Contract

A contract is an agreement enforceable by law.

Any reasonable person has contractual capacity.

The contract must have terms and conditions.

ECT Act s 23(b) Reception Theory is accepted as opposed to the

Information Theory (Mind of the offeror)


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Types of Agreements

Click Wrap Action of Confirmation.

Browse Wrap No real Action taken.

ShrinkWrap Agreement Removal of the package is binding.

KrigesKrag.com will use Click Wrap, to review and print it for safe-

keeping.

No real negotiation process possible. (Dively, 2002:3)


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Enforcing a Contract

Public Enforcement National Court of Law

Expensive

Trading outside borders of a country

Private Enforcement Arbitration

(The Arbitration Foundation of Southern Africa (AFSA))

Trust is a mental state of confidence in the integrity of beings,

services and goods and may prevent unnecessary arbitration

(Buys, 2000:126)


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ECT Act Chapter VII and Consumer Protection

The Scope of the application section 42

The information to be provided section 43,

The Cooling-off Period section 44,

Unsolicited goods, services or communications section 45

Performance section 46

Applicability of Foreign Law section 47

Non-Exclusion section 48

Complaints to Consumer Affairs Committee section 49


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ECT Act Chapter VII and Consumer Protection

KrigesKrag.com will provide a code of conduct e,g, Direct Marketing

Association of South Africa.

www.dma.org.za/reg/dma_code.htm

The physical details must be displayed in the Terms and Conditions of

KrigesKrag.com.

Safe Shop Store Manager will be used for payments to ensure a secure

payment system.

Consumers will have the option to withdraw from Unsolicited goods or

services with unsubscribe options.

Provide the user with a channel to launch any complaints


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Privacy

EXAMPLES

The Universal Declaration of Human Rights, the European

Convention on Human Rights, the International Covenant on Civiland Political Rights, the American Convention on Human Rights.


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Privacy

DEFINITIONS OF PRIVACY

The right to be free from intrusions, or interference by any entity,

state or person in ones personal life and protection from any disclosure about ones personal life.

The right of a person to withdraw from society and to associate with

any group of people, although in an anonymous way.

The right to live ones own life with minimum interference.

(Buys, 2000:366)


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Privacy

Buys states that according to section 14 of the South African

Constitution everyone may waive the right to have their person,

home, property searched, or their possessions seized, or violation ofany form of communications (Buys, 2000:367). Section 50 of the

ECT Act (ECT Act, 2002), states that KrigesKrag.com must be careful

in harvesting information, regarding their consumers, through

electronic transactions.

The Terms and Conditions states how KrigesKrag will acquire and

use personal information and even suggests how the user may

prevent that, but at all times honour the right of the user.


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Privacy

Section 51 of the same act clearly states that the supplier must have written

consent and describe the purpose of harvesting information about the

consumer. During the usage of the personal data, the supplier or data

controller must keep the data for at least one year thereafter. Any obsolete

personal information must be destroyed and no third party may acquire

access (ECT Act, 2002).

KrigesKrag.com shall take all reasonable steps to protect the personal

information of Users. "Personal information" shall be defined as detailed inthe Promotion of Access to Information Act 2 of 2000 (PAIA, 2000).


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Limitations of Privacy

According to the Criminal Procedure Act, a persons right may be violated,

by seizing private information. Section 51 of the ECT Act clearly states that

the supplier must have written consent and describe the purpose of

harvesting information about the consumer.

The Criminal Procedure Act and the interception and Monitoring Prohibition

Act when looking at the Internet, threatens and upholds the privacy of

information stored on a computer.


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Domain Name Dispute Resolution

Uniforum SA and Domain Name Disputes not yet establish, but in the

process. (Uniforum SA, 2003)

WhoIs.com search - KrigesKrag.com registered via TuCows

TuCows Terms and Conditions states ICANN issue

(Internet Corporation of Assigned Names and Numbers)

TuCows Registrar and Joost van der Westhuizen the RegistrantICANN will appoint a Provider or arbitration Panel.


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Domain Name Dispute Resolution Process

Mr Krige the complainant notifies TuCows with all details

The grounds of the complaint must state:

(1) manner in which the domain name is identical or confusingly similar to

mark, for which the complainant has rights,

(2) why the respondent should not have rights over the domain name(s) a

(3)

why the domain name(s) should be considered as registered and usedbad faith


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Domain Name Dispute Resolution Process

The Provider will contact the respondent only if moneys have been paid

The Complainant may select a Panel composition.

The Respondent may change the composition, but must then carry 50 % of

costs


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Intellectual Property

Infringement may occur if another web site misguides users as

the origin of a link and capitalize on the link.

A link or hyperlink may lead to activities known as:

1) Deep-linking and

A hyperlink giving an Internet user access from some Web si

(origin) to a portion of another target Web site without accessing t

homepage or some top-level domain of the target Web site. TInternet user is thus gaining access beneath the point of entry on

target Web site.


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Intellectual Property

2) Framing.

Framing uses a part or parts of the target Web site and displayi

those parts, may it be pictures or page sections within framesthe original Web site, without the user knowing that the web si

changed location.

3) AgentAnother method of capturing outside information.

KrigesKrag must prohibit the use of Deep-linking, framing or useagents unless written consent is given.

Beaches.com and A-Z Rugby provide entertainment and pictures

the athletic clothing, but are e-trading partners.


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Intellectual Property Infringement

According to Van der Merwe D. (2000:114), the requirements f

an action for passing-off can be viewed as follows:

(1) a representation, (2) made by a trader in the course of trad(3) to a prospective customer of his or ultimate consumers of goo

or services supplied by him, (4) which is calculated to injure t

business or goodwill of another trader (in the sense that this is

reasonably foreseeable consequence) and (5) which causes actu

damage to a business or goodwill to the trader by whom the actiis brought. These requirements came about during the case

Erven Warnink BV v. J. Townend and Sons (Hull) Ltd.


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Conclusion

1) KrigesKrag does have Terms and Conditions

2) AFSA is specified in the Terms and Conditions

3) KrigesKrag makes use of Mwebs Safe Shop Store Managerensure a proper payment system.

4) The consumers rights are linked with the ECT Act of S.A.

5) The Privacy of the consumer is dealt with as well as tlimitations thereof.

6) The Domain Name Dispute Resolution will be won, on the bas

that Mr Krige invited Mr Joost at the launch of his brick and mort

outlet, butI

believe in mankind.


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QUESTIONS

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