SHARP INCREASE IN SOUTH AFRICAN INTERNET COURT CASES
Since the start of 2005 there has been a significant increase in the number of Internet related judgments from South African courts. In the past, fear of our courts not being well equipped to handle such disputes has caused many IT businesses submit their disputes to arbitration. The recent increase in technology related litigation shows a growing trust in our justice system and relatively young technology laws such as the Electronic Communications and Transactions Act.
Since 2000, the vast majority of Internet disputes resulted from wrongful domain name use. Companies such as Nandos, Sanlam and Truworths had to fight for their domain names in international arbitration proceedings based on local trademark rights.
Since trademark rights form the basis of domain name rights, cities and regions throughout South Africa have no remedies against other who use domain names such as southafrica.com, capetown.com and kalahari.com.
In 2001 a disgruntled SAA passenger registered the domain neverflysaa.com and hosted a website describing his bad experiences during a London to Cape Town flight. The public was also encouraged to post their experiences with SAA to the site. SAA responded by referring a dispute to arbitration. The judgment, widely regarded as a test case for so-called criticism websites, was handed down in May 2002 and held that free speech rights weigh stronger than trademark rights if the website in question is actually used for legitimate criticism.
Although not directly related to the Internet, the unexpected judgment of the Constitutional Court in Laugh It Off v SAB will undoubtedly have a huge effect on freedom of speech on the Internet.
Laugh It Off produced t-shirts mocking certain famous South African trademarks. The court ruled that free speech rights outweigh trademark rights if the trademark owner cannot prove actual financial loss. Recent unhappiness with the pricing and services of Telkom resulted in the registration and use of hellkom.co.za and telkomsucks.co.za. Telkom responded by threatening website owner Andrew von Hoesslin with litigation.
But recent judgements do not bode well for Telkom’s case. The current development of the law seems to favour free speech rights and not traditional trademark rights in most circumstances.
Another local judgment on Internet free speech resulted from litigation initiated by a manager of the Sundownds Soccer Club, against Touch Line Media because of an anonymous and allegedly defamatory posting on the Kick Off website’s discussion forum.
In 2003 the High Court ruled in favour of Touchline Media based on, amongst others, the fact that online free speech would be severely restricted if bulletin board operators had a duty to monitor all postings for potential defamatory content.
As early as 1998 the Supreme Court balanced free speech rights and reputation rights with the National Media v Bogoshi judgment. The court held that the media had a central role in any democracy and may even publish untrue words if such publication was reasonable in the circumstances.
The vast majority of local Internet defamation disputes result from anonymous postings to chat rooms or discussion forums. The question whether or not a bulletin board operator must disclose the identity of a person who made a defamatory anonymous posting was not yet dealt with by the courts. People are more confident to call a spade a spade when they talk anonymously and can do so without fear of later harassment by employers and others.
Anonymous tip offs form a corner stone of our criminal justice system and the identities of those providing useful information about criminals are strongly protected. The same argument should apply to anonymous speech on the Internet.