South African cyber law has finally become street law in 2005 - moving from a small fringe speciality to mainstream law in less than five years, e-lawyer Reinhardt Buys says.
Buys says during 2005 media reported on various instances where technology and the law met.
"Almost on a weekly basis the media reported on a new law, a surprising court decision or some other issue related to the Internet and the law. South Africa now follows countries like the United States, United Kingdom, Australia and the Netherlands where cyber law is the fastest, if not the only, growing field of the law," Buys says.
He says that local technology lawyers no longer have to refer to foreign laws and judgements for examples of risk and liability.
A flurry of new laws, bills and regulations issued in 2005 will have a significant impact on how South Africans use the Internet and related technologies in future.
Legislation and regulation
In April, draft rules to govern domain name disputes were released for comment. Early in August, ICASA released its controversial report on the cost of local broadband Internet access.
Buys says the Department of Justice`s last minute decision to extend the deadline for compliance with the Promotion of Access of Information Act literally hours before the deadline was just another example of many unexpected and sudden regulatory decisions throughout the year.
In September, the Regulation of Interception of Communications Act came into operation, despite the protests of service providers who have to foot the bill for its implementation.
The Law Commission`s investigation into legislation that protects personal information concluded in October with the release of a draft Protection of Personal Information law.
Buys says the undisputed legislative highlight of the year was the finalisation of legislation to replace the current laws that regulate telecommunications and broadcasting.
"Late in October the Communications Portfolio Committee unanimously accepted the Convergence Bill and, in yet another last minute decision, decided to rename it the Electronic Communications Bill," says Buys.
"The Bill is well drafted and equally well considered. In my opinion due regard was given to concerns raised about earlier versions of the Bill. The definitions are maybe a bit too technical and conflicts with definitions in other laws will probably cause trouble early in the next year," Buys says.
He criticised the name change, saying it is confusing because the country now has three laws with the term "electronic" in their titles.
The year of judgement
The year will also be remembered for the many and, in some instances, ground breaking court decisions.
According to Buys, "no less than ten judgments were issued by our courts that either directly relate to the use of technology or that will indirectly have a huge impact on future technology use."
In January, the Cape High Court ordered Media24 to stop using the name Wegbreek and transfer the domain name wegbreek.co.za to the owners of Getaway magazine. In February, the Witwatersrand High Court listened to arguments in the Men`s Health domain name battle, which was subsequently taken on appeal to the Supreme Court.
Buys says the Constitutional Court sent shock waves through the legal fraternity when it delivered judgment in the dispute between Laugh It Off and South African Breweries during May.
"This judgment was probably the main reason Telkom dropped its imminent legal action against Greg Stirton who registered the domain name hellkom.co.za and made fun of the Telkom logo," Buys says.
Other important technology judgments of 2005 were Valutel v eTel, a decision that clarifies the legal position on the protection of trade secrets and confidential IT data; and Technical Fleet v Rousseau regarding the enforceability of restraints of trade in the technology sector.
Also significant, according to Buys, was the Labour Court`s decision to confirm the dismissal of an employee who distributed an email containing derogatory statements about management at her employer`s in Van Wyk v Independent Newspapers.
"The most significant foreign judgment was the June decision of the US Supreme Court in MGM v Grokster in which the court held that operators of peer-to-peer networks may be liable if such networks are used to infringe others` copyright," says Buys.
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