South African Internet attorneys report that South African Airways` threat to take a disgruntled passenger to court could result in a complex legal wrangle.
The case arises from an annoyed SAA passenger, Vernon E Six of Texas, who has built a Web site (www.neverflySAA.com) to air his views on the alleged poor service of the airline.
Six has posted allegations of decrepit aircraft and poor service on his Web site, and has invited other disgruntled SAA passengers to submit their views to a bulletin board on the site.
In his latest update on the site, Six claims to have had over 1.3 million hits on the site. He also claims that he is keeping the site live because he has received death threats, which he implies came via SAA`s passenger records.
SAA claims that Six demanded $20 000 to shut down the site. The airline says it will not submit to blackmail and will take the matter to court.
Local Internet law experts say no similar case has reached the South African courts before, and that such a case would probably be heard in the US courts, where there have been similar cases in the past. They point out that the case could be based either on defamation laws, or on the use of "flySAA" in the www.neverflySAA.com domain name.
Reinhardt Buys of Buys Inc Attorneys cites two previous cases in the US, where domain names played on the names of existing Web sites.
"In the case of ADT Services v ADTSucks.com, the WIPO [World Intellectual Property Organisation] arbitration panel decided that the use of the domain name was confusingly similar to the complainant`s trademark, and that the addition of 'sucks` was a crude attempt to tarnish the complainant`s trademark. It found that the ADTsucks.com had no rights or legitimate interest in the disputed domain, had registered the domain in bad faith, and should therefore transfer the domain name back to ADT. In contrast, in the case of Fucknetscape.com, it was decided that the domain was not confusingly similar to the trademark 'Netscape`, and that the respondent was free to use the site to criticise Netscape."
Buys says cases such as these make it clear that the name neverflysaa.com is not likely to be confused with flySAA.com. In addition, if the site`s owner is using the site to collect complaints, he is using it for non-profit purposes and not merely to sell the domain to SAA.
"Use of the domain name neverflysaa.com is not likely to be regarded as trademark infringement in terms of the WIPO domain name arbitration process," says Buys. "In the Phillipssuch.com case, it was stated that: 'If such a domain name is genuinely registered and used for the purpose of criticism of the brand, such registration and use could not be challenged.` This seems to be the case with neverflysaa.com."
Buys points out that although the owner of neverflysaa.com could not be stopped in terms of the WIPO Domain Name Arbitration process, he might be liable under the South African Trademarks Act for diluting SAA`s trademark through tarnishment. Enforcing the judgement in the US might be problematic, says Buys. One of the defenses to a defamation claim is "fair comment". If what is said is fair, true and in the public interest there could be no claim for defamation.
Ryk Meiring, Internet attorney at Spoor & Fischer, says it would make sense for SAA to approach a US court for relief, since it would not benefit the airline much to obtain a judgment in SA against a person living in the US.
Meiring says the case is likely to be made on the grounds of defamation. "This is an element of our common law, as opposed to legislation, which is that part of our law which is codified. As to our law, the injuria of defamation is defined as the wrongful intentional publication of statements concerning another person, which has the effect of injuring his status, good name or reputation," he says. "Reading that definition, the statements attributed to Six will only be contrary to our law if they are in fact `wrongful`. This would involve a fairly complicated investigation into, among others, the `objective reasonable man` test."
Meiring points out that if it was established that a statement was wrongful, the court would have to investigate whether the statement has grounds for justification, by which the defendant may rebut the charge of defamation. These grounds include privilege, fair comment, and truth and public interest.
Meiring says that in SA, if SAA sued Six successfully on a charge of defamation, and joined the Internet service provider as a party to the proceedings, in which SAA requested the court to issue an order for the ISP to `take down` the Web site, it would be required to do so.
"SAA could also go to the ICANN-accredited Domain Name Dispute Resolution Centre at the WIPO, in attempts to win back the domain name from Six. This course of action has been successful in some instances, though not in all.
"The bottom line," says Meiring, "is that statements on a Web site accessible via the Internet do not change the basis for the law of defamation. The Web site is analogous to the hard-copy publication, and the critic is analogous to the editor or publisher. Many online critic sites have been launched internationally, and most have been retracted from the Internet, not resulting from court action, but from private settlement."
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