information technology, domain names and e-commerce

In recent years, South Africa has introduced enabling legislation in an attempt to instill certainty and confidence to the realm of electronic communications and transactions. The Electronic Communications and Transactions (ECT) Act 25 of 2002 and the Regulation of Interception of Communications Act 75 of 2002 clearly indicate Government's conviction that Electronic Communications and Transactions will play a critical role in our country’s prosperity.

It is a stated objective of Government to close the digital divide by promoting universal access to Information Technology services and resources. Government is now actively promoting and encouraging the widespread use of Electronic Communications and Transactions, and has attempted to take a leading role by producing its very own E-Government Strategy.

In embracing the new information age, Bowman Gilfillan has elected to establish a specialist legal unit to deal with the increasing legal demands posed by Electronic Communications and Transactions. The E-Commerce Practice Area comprises specialist legal, technical and administrative personnel in order to provide clients with the highest degree of specialist service and advice.

what is e-commerce and it law?

E-Commerce is defined as, “The conducting of business communication and transactions over networks and through computers.” (dictionary.com)

IT is defined as: “Applied computer systems, both hardware and software, and often including networking and telecommunications, usually in the context of a business or other enterprise. Often the name of the part of an enterprise that deals with all things electronic.” (dictionary.com)

Electronic Communications and Transactions are based on Information Technology (IT) structures. In our view, E-Commerce Law therefore refers to:

The rules of conduct and procedure that deal specifically with the application and development of Information Technology in order to realise a commercial, industrial and/or social objective.

Specialising in the fast paced, dynamic developments of the information age, Bowman Gilfillan offers an emerging technology legal department at the cutting edge of business demand.

our approach

We believe that client-partner relationships are crucial. Accordingly, each matter is handled by a lead partner and a suitable team of lawyers assigned at the appropriate level. Our team concept means that lawyers with different legal skills are drawn in to contribute their own specialisation as and when required. The lead partner manages and co-ordinates the team to ensure the client’s objectives, priorities and expectations are met, while maintaining close liaison at all pivotal stages.

The members of the E-Commerce Department are actively involved in the Internet industry, and participate in related organisational and structural events. The organisations that the members of the E-Commerce department partake in are the Internet Society (ISOC), Computer Society, The Internet Corporation of Assigned Numbers and Names (ICANN), AFRINIC, UniForum SA, .ZA Domain Authority and The Information Technology Lawyers Forum (ITLF).

our clients

We represent a diverse range of local and foreign clients, from specialist IT companies to private institutions wishing to incorporate IT solutions into their trading activities. Our clients include large multi-national listed and non-listed corporations (such as International Internet Service Providers, IT distributors and solution providers, development organisations and private institutions).

profile

Our attorneys were involved in the re-drafting and finalisation of the Electronic Communications and Transactions (ECT) Act 25 of 2002, and have in particular represented the South Africa commercial domain name registry (CO.ZA) in Parliament during the ECT debate.

The department was also mandated by the South African Department of Communications to draft the ZA Alternate Dispute Resolution regulations that came into force on 1 August 2007.

e-commerce and it legal services

• Copyright aspects such as assignments, framing and linking
• Terms and conditions
• Privacy policies
• Security policies
• Disclaimers
• Online usage of trade marks
• The Electronic Communications and Transactions Act 25 of 2002:
  • Online Contract Formation
  • The manner in which electronic signatures can be used
  • Consumer protection, including cooling off periods for online purchases
  • Data Protection and Critical Databases
  • Take-Down Procedures

internet domain name audits

A domain name audit ensures that an available domain name matching a Trade Mark, company name or house brand is identified, reported and thereafter registered. The audit includes:

• Identical Trade Mark and company name searches in all generic Top Level Domains (gTLD) (such as.com /.net /.org) and applicable country code Top Level Domains (ccTLD) (such as .za)
• Common misspelling searches
• Conflict searches
• Domain name due diligences

general domain name services

• Domain name registrations in all gTLD's and most ccTLD's
• Domain name transfers
• Domain name licensing
• Related domain name agreements

UDRP, Nominet, and ZADRR proceedings

Domain name dispute resolution is an expeditious administrative procedure designed to dispose of domain name disputes without incurring the costs of expensive and lengthy litigation. A trade mark owner who wishes to challenge a domain name registration can institute a complaint using a variety of domain name dispute resolution mechanisms such as the ICANN UDRP, the Nominet DRS, and the South African ZADRR. The UDRP only applies to domain names in the top level (for example .com / .net / .org) thus ensuring protection for trade mark owners at an international level. In contrast, the Nominet DRS and ZADRR are designed to protect the rights of trade mark owners in the .uk and .za name space respectively.

Bowman Gilfillan Inc. was the first law firm in South Africa to lodge a UDRP complaint in the NANDOS.COM case.

Our expertise in domain name dispute resolution is unmatched in South Africa, as evidenced when the Department of Communications requested Bowman Gilfillan's assistance with the drafting of the ZADRR.

E-commerce and it related agreements

• Service Level Agreements (SLA)
• Software Development Agreements
• Non-disclosure & Confidentiality Agreements
• Internet Service Agreements
• Support and Maintenance Service Agreements
• Professional Service Agreements
• Software License Agreements

IP and regulator risk management service

• Encryption Products
• Electronic Signatures
• VoIP
• Data Protection and Privacy
• Consumer Protection
• Information Security
• Internet Usage Policies
• Electronic Transactions and Communications
• Trade Mark and Copyright Protection
• Website compliance
• Internet Protocol (IP) Numbers

E-commerce regulatory advice

• Electronic Communications and Transactions Act 25 of 2002
• Promotion of Access to Information Act 2 of 2000.
• Regulation of Interception of Communications Act 75 of 2002