Does ZADNA have the mechanisms to resolve disputes over.za domain names?
Yes, ZADNA has the Alternative Dispute Resolution Regulations for the resolution of disputes, but the ADR Regulations only apply to un-moderated SLDs under ZACR’s operation. The ADR Regulations are based on section 69 of the ECT Act that requires the Minister of Communications to promulgate ADR Regulations for the resolution of .za domain name disputes. The Regulations require ZADNA to accredit and oversee suitable South African entities to serve as ADR providers. For more information, please visit the .za ADR page.
In addition, ZADNA has authorised ZACR to also introduce and implement an additional rights protection mechanism called the Mark Validation System (MVS). The MVS was born out of rights protection gaps arising from the ICANN new gTLD process, and is meant to allow South African and international intellectual property owners specific rights protection in the gTLDs under ZACR’s operation – these gTLDs being dotAfrica (.africa) and the dotCities i.e. dotCapeTown (.capetown), dotDurban (.durban) and dotJoburg (.joburg). For more on the MVS, please visit the ZACR website.
Can ZADNA help in resolving a dispute between a domain name holder and a registrar who registered the domain name on the holder’s behalf?
No, the relationship between a person who registers a domain name (normally known as a domain name holder or registrant) and the registrar they choose to register their domain name is purely a contractual one, and ZADNA has no say over disputes arising therefrom. Registry operator usually have their own processes that allow domain name holders to transfer names from one registrar to another registrar.
What is the purpose of the .za Alternative Dispute Resolution (ADR) regulations?
The main purpose of the Alternative Dispute Resolution (ADR) regulations for the .za domain is to resolve disputes over the registration of certain domain names under the co.za sub-domain. To achieve this, the regulations stipulate that suitable service providers should be accredited to resolve co.za domain name disputes.
What is the role of ZADNA in the ADR process?
Section 37 of the regulations requires ZADNA to accredit service providers who satisfy specific requirements, to resolve co.za disputes.
In addition, ZADNA is required to publish adjudicator decisions on its website, and to receive 10% of each dispute fee to set up a fund which should be used to provide financial assistance to parties who cannot afford the ADR fees.
What is a domain name dispute?
A domain name dispute is a dispute regarding a registered domain name, which dispute is between a complainant and a person who registered a domain name (i.e. registrant). According to the Regulations, the basis of a domain name dispute can either be an abusive or an offensive registration.
Is petitioning the Minister the only way of having ADRs extended to other SLDs?
Having the Minister amend the ADRs to cover other SLDs is the best approach. However, nothing prevents ZADNA from using the SLD charters (i.e. SLD constitutions) to require parties registering names in an SLD to submit to the application of ADRs. In fact, as part of re-launching net.za, org.za and web.za, the revised charters of these SLDs require, as a term and condition of registering names, domain name applicants to undertake to submit to the application of the ADRs should disputes arise over their names.
How soon will ADR apply to net.za, org.za and web.za?
ZADNA has approved the revised charters of the three SLDs to require all domain name applicants to accept ADR application. This means that the ADRs will apply as soon as soon the three SLDs are re-launched to accept new registrations.
Who are the accredited ADR providers?
ZADNA has initially accredited the Arbitration Foundation of Southern Africa and the South African Institute of Intellectual Property Law to resolve co.za domain name disputes. In terms of the Regulations, more service providers can be accredited if they satisfy the requirements listed in section 38.
How do I lodge a domain name dispute?
A complainant can lodge a dispute by first selecting a service provider from those accredited by ZADNA. Then the dispute should be submitted to the selected accredited provider in the manner outlined in Chapter III of the Regulations. In addition, the complainant may be required by the accredited provider to satisfy supplementary requirements used by the provider in administering disputes.
Do I need a lawyer to lodge a dispute?
Not necessarily. However, due to their specialized legal training, lawyers may be used to assist the complainant in submitting documentary evidence. Legal representation is not necessary as the Regulations do not allow for oral submissions.
How soon can I expect a dispute to be resolved?
The Regulations stipulate a number of administrative steps and checks that complainants, respondents and accredited providers must satisfy before the actual resolution of a dispute. Delays may arise as a result of incomplete dispute submissions and of registrants (i.e. domain name holders) not being accessible immediately to respond to complainants’ claims. As a result there is no certain timeline within which disputes should be resolved. Based on prior ADR timelines, ZADNA expects the entire dispute resolution process, on average, to last for plus or minus 8 weeks.
What are the costs involved in a dispute?
It is up to the parties to a dispute to choose if they want their dispute to be resolved by a single adjudicator or a three adjudicator panel. For a single adjudicator, the complainant must pay R10 000 (ten thousand Rands) and R24,000 (twenty four thousand Rands) for a three adjudicator panel.
If the registrant chooses to have the dispute resolved by a three adjudicator panel instead of a single adjudicator panel, the registrant and complainant must each pay R12 000.
Aren't these ADR fees expensive?
The stipulated ADR fees are meant purely to cover administrative costs that the accredited service providers incur in administering and resolving disputes. These costs are much cheaper compared to resolving domain name disputes through the normal court processes, which can cost up to R200, 000 and is usually a much more lengthy process.
They are also much cheaper than the costs involved in having disputes resolved under other countries’ ADR procedures and under ICANN’s generic TLDs (top level domains) such as .com. Another rationale behind these costs is to avoid having the ADR procedure abused through frivolous and unclear disputes.
What if I have a valid dispute but cannot the required ADR lodgment fees?
According to Section 34(5), ADR providers must pay 10% of each dispute fee to ZADNA, which ZADNA must use exclusively to fund other complainants and registrants seeking financial assistance. To avoid abuse of this ADR financial assistance option, ZADNA has an eligibility criteria which will be used to evaluate applications. Applications for ADR financial assistance should be emailed to [email protected] or be faxed to 086 688 7109 or +27 (0)10 020 3919.
What kinds of relief can I expect in the event of a dispute?
There are three kinds of decisions an adjudicator may make in resolving a .za domain name dispute:
- In the case of abusive registration, the dispute may be refused (i.e. the decision goes against the complainant) or the disputed domain name may be transferred from the registrant to the complainant (i.e. the decision goes in favour of the complainant).
- In the case of offensive registration, the dispute may be refused (i.e. the decision goes against the complainant) or the domain name may be deleted and prohibited from future registration.
- The dispute may be refused on the basis that it constitutes reverse domain name hijacking (i.e. the use of the Regulations in bad faith to attempt to restrain the registrant from using the disputed domain name).
Can I recover the ADR fees if I get a favourable decision?
No, the ADR Regulations do not provide for the recovery of costs by any of the parties, and this applies regardless of which party wins the dispute.
Can I appeal the adjudicator’s decision in an ADR?
Yes, adjudicator decisions can be appealed but this is limited to single adjudicator’s decisions. Three adjudicator panel decisions cannot be appealed. A party seeking to appeal must lodge a statement of intention to appeal together with the required appeal fee, and must within 15 (fifteen) days of lodging the intention to appeal submit an appeal notice.
What are the costs of making an appeal?
The stipulated cost for an appeal is a fixed sum of R24 000 (twenty four thousand Rand).
Can parties to a dispute choose to refer the dispute to court?
Yes, at anytime during the dispute proceedings, a party may choose to refer the dispute to the high court of South Africa. In such case, the adjudicator will no longer proceed with the dispute.
Can I recover my costs in case the dispute is referred to the high court during its consideration by adjudicators?
No, the ADR fees are primarily intended to cover administrative costs that the accredited providers incur. The fees cannot be refunded.
What powers does ZADNA and the relevant second level domain (SLD) administrator have to implement adjudicator decisions?
Once the adjudicator makes a decision, the accredited provider must notify in writing the parties and ZADNA. It must then notify the SLD administrator, which should implement the decision: if the decision is to transfer the name from the respondent to the complainant, the SLD administrator will effect such transfer. If the decision is against the complainant, the name will remain with the respondent. If the decision is to delete an offensive name, the SLD administrator will delete the name accordingly.
Can I access previous .za ADR decisions?
The accredited providers and ZADNA are all required to publish the decisions on their websites.
Are there any accredited ADR providers outside Gauteng?
ZADNA is not restricted to accredit only service providers in Gauteng; it is willing to accredit service providers from other provinces of South Africa provided they satisfy the application requirements stipulated in the ADR Regulations.
Of primary importance is that the disputes are resolved using documentary submissions made by complainants and respondents using physical and/or on-line dispute lodgment. The Regulations do not permit oral submissions. This then makes the geographical location of accredited adjudicators of secondary importance.
In the meantime, ZADNA has accredited the Arbitration Foundation of Southern Africa (AFSA) and the South African Institute of Intellectual Property Law (SAIIPL) to resolve .za domain name disputes.
These two service providers, although primarily based in Gauteng, are national organisations with adjudicators located in different parts of the country.
What assistance can ZADNA offer to organisations interested in obtaining accreditation as ADR providers?
It is the responsibility of interested organisations to study the regulations and satisfy the stipulated requirements. ZADNA is available, if contacted, to assist applicants in understanding the requirements before they submit applications.