HIGH COSTS HAMPER DOMAIN DISPUTE RESOLUTION IN SOUTH AFRICA
The Department of Communications expects progress to be made on the development of an alternative domain name dispute resolution process within the next three months. The absence of an alternative dispute resolution process (ADRP) has led to high costs for businesses, say industry players. According to Calvin Browne, a director at the .co.za domain name administrator Uniforum, the lack of an ADRP for domain names is also hampering the development of Internet commerce in this country as it leads to high court costs to resolve disputes.
“The lack of an ADRP means the only alternative a company has to settle a dispute is to go to court and this can easily cost from R20 000 upwards,” he says.
E-lawyer Gerrie van Gaalen, who is handling two disputes for clients, echoes Browne's comments.
“An ADRP can make an award in terms of two parties disputing their domain names; however, Uniforum cannot. It works on a ‘first-come-first-service' basis and it does not have access to the databases that register trademarks and company names,” he says.
Van Gaalen says it hampers access to markets when companies with well-known names cannot use the domain name with which they are associated.
“Part of the problem is that in some cases a Web designer or service provider has registered the domain name ‘as a favour' to a company and then refuses to release it once a dispute arises,” he says.
Mike Silber, a board member of the .za Domain Name Authority, says the original draft regulations were issued for public comment towards the end of 2004.
“An extensive consultation process has been held and as far as I am concerned the Department of Communications has done everything it needs to do,” he says.
Silber says most of the groundwork has been done so that once the regulations are promulgated, the ADRP can be set up as quickly as possible.
The Electronic Communications Act states in section 69 (1): “The minister [meaning the minister of communications], in consultation with the minister of trade and industry, must make regulations for an alternative mechanism for the resolution of disputes in respect of the .za domain name space.”
It goes on to say the regulations must be made with due regard to existing international precedent, and prescribe procedures for the resolution of certain types of disputes determined in the regulations and which relate to a domain name registration.
“Consultations between this department and the Department of Trade and Industry are almost complete,” says Albi Modise, the Department of Communications' director for media. “We expect final progress to be made within the next three months at in inter-ministerial level.”