Building A Web Site Presentation 0

BUILDING A WEB SITE: LEGAL ISSUES
BACKGROUND OF PRESENTER
 LECTURER: Wilhelm Rothman
[email protected]
31 MAY 2004

Project: “Krige’s 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.
Motivation For Considering Legal Issues
Van der Merwe, D. (2000:131), describes South

Africa as a “Rechtstaat”, meaning that South
Africa is governed by law as the ultimate
authority. Human rights of the individual are
protected to the utmost by the new Constitution.
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 Contract
The 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.
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)
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)
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)
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
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
Privacy
EXAMPLES
The Universal Declaration of Human Rights, the European
Convention on Human Rights, the International Covenant on Civil
and Political Rights, the American Convention on Human Rights.

Privacy
DEFINITIONS OF PRIVACY
The right to be free from intrusions, or interference by any entity,
state or person in one’s personal life and protection from any
disclosure about one’s 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 one’s own life with minimum interference.
(Buys, 2000:366)
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 of
any 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.
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 in
the Promotion of Access to Information Act 2 of 2000 (PAIA, 2000).
Limitations of Privacy
According to the Criminal Procedure Act, a person’s 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.
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 Registrant
ICANN will appoint a Provider or arbitration Panel.
Domain Name Dispute Resolution Process
Mr Krige the complainant notifies TuCows with all details

The grounds of the complaint must state:
manner in which the domain name is identical or confusingly similar to
(1)
mark, for which the complainant has rights,

(2)
why the respondent should not have rights over the domain name(s) and
why the domain name(s) should be considered as registered and used
(3)
bad faith
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 a
costs
Intellectual Property
Infringement may occur if another web site misguides users as t

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 sit
(origin) to a portion of another target Web site without accessing th
homepage or some top-level domain of the target Web site. Th
Internet user is thus gaining access beneath the point of entry on
target Web site.
Intellectual Property
2) Framing.
Framing uses a part or parts of the target Web site and displayin
those parts, may it be pictures or page sections within frames o
the original Web site, without the user knowing that the web sit
changed location.
3) Agent – Another method of capturing outside information.
KrigesKrag must prohibit the use of Deep-linking, framing or use o
agents unless written consent is given.
Beaches.com and A-Z Rugby provide entertainment and pictures o
the athletic clothing, but are e-trading partners.
Intellectual Property Infringement
According to Van der Merwe D. (2000:114), the requirements fo

an action for “passing-off” can be viewed as follows:
“(1) a representation, (2) made by a trader in the course of trade
(3) to a prospective customer of his or ultimate consumers of good
or services supplied by him, (4) which is calculated to injure th
business or goodwill of another trader (in the sense that this is
reasonably foreseeable consequence) and (5) which causes actua
damage to a business or goodwill to the trader by whom the actio
is brought”. These requirements came about during the case o
Erven Warnink BV v. J. Townend and Sons (Hull) Ltd.
Conclusion
1) KrigesKrag does have Terms and Conditions

2) AFSA is specified in the Terms and Conditions
3) KrigesKrag makes use of Mweb’s Safe Shop Store Manager t
ensure a proper payment system.
4) The consumer’s rights are linked with the ECT Act of S.A.
5) The Privacy of the consumer is dealt with as well as th
limitations thereof.
6) The Domain Name Dispute Resolution will be won, on the basi
that Mr Krige invited Mr Joost at the launch of his brick and morta
outlet, but I believe in mankind.
QUESTIONS

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BUILDING A WEB SITE: LEGAL ISSUES

 LECTURER: Wilhelm Rothman

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

 1. The Law of Delict.

A contract is an agreement enforceable by law.

Click Wrap – Action of Confirmation.

Public Enforcement – National Court of Law

The Scope of the application – section 42

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

Buys states that according to section 14 of the South African

According to the Criminal Procedure Act, a person’s right may be violated,

Mr Krige the complainant notifies TuCows with all details

mark, for which the complainant has rights,

Infringement may occur if another web site misguides users as t

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

1) KrigesKrag does have Terms and Conditions

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