A lack of cases and the general poor IT knowledge among the judiciary are hampering the development of Internet law in SA, lawyers say.
"Most South African cases that may have a bearing on Internet and ICT issues have not dealt directly with them," says Reinhardt Buys of Buys Inc attorneys.
Lance Michalson of Michalsons ICT Attorneys says while there are many cases that go to court, few actually get heard as half the paperwork is needed to explain ICT terms such as wide area networks, local area networks and the Internet.
"The judiciary`s lack of ICT knowledge is a definite hindrance," Michalson says.
However, Buys contends there are signs that some effort is being made by the judges.
"We have seen some of them come better prepared. However, the lack of the number of cases means that the law is not tested," he says.
Buys divides South African ICT law cases into three categories. The first are those using international arbitration, such as the World Intellectual Property Organisation in Geneva. The second is that of South African cases that may have a bearing on Internet issues. The third category is that of where the facts of the case and the judgments are directly related to Internet issues.
Cases such as that of retail group Truworths, which is fighting for its domain name, are placed in the first category. A case related to the second category would be T-shirt printer Laugh It Off vs SA Breweries, which related to free speech. Tsichlas vs Touch Line Media over an allegedly defamatory statement on the Kick Off Internet site, fell into the third category.
Michalson says South African law works on a system of precedent, where court rulings help to regulate the sector. These precedents have to be reported.
"No one wants to be a test case. So many issues still go to arbitration and avoid the courts altogether," he says.
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