Since 2006 it has been possible to challenge the lawfulness of domain name registrations in the second level domain in terms of the Alternative Dispute Resolution Regulations promulgated under the Electronic Communications and Transactions Act 25 of 2002. The ambit of these regulations was subsequently expanded to cover the, and second level domains too.

These regulations were amended in November this year, with the most important amendments being the following:

Disputes under the ADR procedure are now subject to compulsory informal mediation (but only if the person who holds the domain name registration (the registrant) has filed a response to the complaint). The mediation is conducted under the auspices of the .za Domain Name Authority (ZADNA), and is subject to a time limit. If the mediation is not successful, then the complaint will proceed to adjudication as before. The mediation will be confidential, as will any settlement that the parties may reach.

If the registrant does NOT file a response, then the amendment allows for the adjudicator to make a summary decision, but only if the adjudicator is reasonably satisfied that the registration is indeed abusive, and ALSO that “…there are no other factors or circumstances present in the dispute that would unfairly deprive the registrant of the domain name.”

Strangely enough there has been no change to the adjudication fees, which remain at R10 000 for a single adjudicator and R24 000 for a panel of three adjudicators and for appeals, despite these amounts having stood unaltered since the regulations were first published in 2006. The fee is however now reduced by 50% in the case of a summary decision. This has the effect of making the disputes process far more affordable, given that the majority of disputes are unopposed. One wonders though whether the game is still worth the candle for adjudicators.

Whereas previously the adjudicator’s only option in the case of a successful complaint was to order that it be transferred to the successful complainant, now the adjudicator can order that the domain name registration be cancelled (so that the domain name falls back into the pool of available domain names). The intention seems to be to deal with the position where both the complainant and a third party have rights to a particular name and it is not appropriate to transfer the domain name to the complainant merely on the basis that he or she brought the complaint. The effect of this of course is that the domain name will be made available for anyone to snap up.

The amendment also dealt with various housekeeping matters, such as establishing a more rigorous procedure where legal action is undertaken in the High Court concurrently with a complaint. The requirements for deposing to an application or response while in a foreign jurisdiction are also clarified.

Andrew Marshall

18 December 2017