Post on 10-Apr-2018
transcript
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BUILDING A WEB SITE: LEGAL ISSUESBUILDING A WEB SITE: LEGAL ISSUES
LECTURER: Wilhelm Rothman
wilhelm@ctech.ac.za
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