After having proposed changes to the .ZA Alternative Dispute Resolution Regulations in December last year, the South African Minister of Telecommunications and Postal Services has, with effect from 10 November, amended the Regulations in some significant respects.
The amendment notice can be viewed here.
Many of the amendments appear to have been lifted from the UK DRS (the .uk dispute resolution system) and they are generally to be welcomed, although there is some uncertainty as to how some of the amendments will work in practice. It would appear that the SAIIPL Supplementary Procedure has not yet been updated to incorporate the changes and this will of course be required going forward.
Below is a summary of the amendments:
- Mandatory informal mediation to be run by the government domain name authority ZADNA introduced. If settlement reached, no complaint fees payable;
- The rebuttable presumption of an abusive registration if the registrant has been found to have made an abusive registration in three or more disputes in the previous 12 months has now been extended to the previous two years;
- The possible decisions that an adjudicator can reach have been expanded to include cancellation of the disputed domain name. Asking for this is of course risky, if you’re acting for the complainant, given that the domain will probably fall back into the pool of available domains;
- A real penalty for reverse domain name hijacking has been provided. If three disputes by the same complainant have been refused within a period of two years on the basis of reverse domain name hijacking, the provider will not accept any further complaints from that complainant for a period of two years except on good cause shown;
- The confusion created by requiring a commissioner of oaths to attest to the pleadings in countries where there is no such office has been remedied;
- If the registrant does not respond to a complaint then a summary decision must be issued with 50% of the complaint fee being refunded. A summary decision is not defined but will presumably have the same meaning as in the context of the UK DRS, being a short decision without full written reasons;
- A period in which to file a statement of intention to appeal has now been provided, being four days after receipt of a decision; and
- If legal proceedings are instituted during a dispute, the adjudicator must proceed to decide the dispute if the adjudicator has already been appointed once the proceedings are instituted.
Written by Jeremy Speres, Partner, Spoor & Fisher