Technology is an ever-changing landscape and a fast landscape might i can say. The law is also not static, but change is comparatively slower than technology and this is the basis for the disconnect between law and ICT.
The USA, in my opinion, is the “trend-setters” in technology law. From that it normally doesn’t take long before we see South Africa follow these trends. Therefore with the changes in Internet Law, I expect we will be seeing similar trends and it might be worthwhile giving some consideration to these.
My issue however, our courts not taking decisive actions in terms of internet law, thereby not creating law in South Africa.
Here are some of the 2014 legal changes in the USA which I agree will impact on South Africa in respect of internet law. Sourced from Thompson Coburn LLP.
1. A recognition of fair use
I have another copyright topic on this blog, but the fair use doctrine of the US copyright law were a highlight for me in 2014 and their courts made some very decisive rulings. From what I gathered, in the past the US courts had a very rigid approach in the fair use analysis, however their courts in recent cases were more relaxed and flexible. In the past their courts strictly applied a four factor approach, which is found in section 108 of their Copyright Act. In the 2014 cases we see them considering other factors, like purpose and effects of uses and the underlying policies.
In the HathiTrust case in the Court found that full-text copying for library indexing purposes constitutes fair use, yet it doesn’t conform to their previous approaches to section 108.
In White v. West Publishing the ruling was that full-text copying of legal briefs constitutes fair use and in Levyfilm v. Fox Sports, the use of a copyrighted photograph contained on DVD cover was also found to be fair use.
So where do South Africa stand in terms of our Copyright Act and “fair use”? My other post on our Coyright Act and specifically making reference to illegal downloading of media, already indicates that we are at the bridge where this is relevant in South Africa.
2. Web agreements
This is something that was also somewhat of an eye-opener for me, given that I also have agreements on this blog. In several cases the US courts refused to acknowledge a website’s terms and conditions and even privacy policies, because companies never received a clear agreement from their website users. Can you imagine this? Think of our already slow-growing e-commerce trade, or what about online banking!
In Rodman v. Safeway, their court did not enforce changes to the website terms and conditions, because the terms purported to automatically bind users to all policy changes. According to their court ruling the website terms cannot “bind customers to unknown future contract terms”. Thinking about this now, actually creates a valid argument in my mind. I agree to something today, next week you change the terms of what I agreed to (without my knowledge) and now you want to hold me accountable for changes which I did not agree to. This is obviously not conforming to contractual law standards.
In South Africa, website owner’s and especially companies will need to take the necessary steps and implement policies and procedures to account for this, given that websites are more often being used by citizens. The impact of this can not be ignored by both end-users and companies alike?
3. Privacy and data collection
So, as per normal the US White House’s released their May 2014 report on ‘privacy’. In South Africa this is a heated topic, but privacy from a data collection perspective is even more heat in the USA. In the report titled, “Big Data: Seizing Opportunities, Preserving Values” I saw a shift in the normal approach their courts took to privacy being the alpha and omega. What I mean hereby is that privacy was always highly regarded and placed before anything else. It however appears as if they started recognising that data collection can be valuable to business and the citizen alike.
Normally they would focus on privacy hazards of data collection and big data, but they started realising that big data holds many promises, like accountability, and even privacy and human rights. From the report …. “big data will become a historic driver of progress.”
The report did highlight concerns, but its emphasis on balancing concerns with benefits marked a dawn of a new era for the privacy debate.
I don’t think that consensus will ever be reached in this privacy debate, as it is basically a conundrum. I want to decide what the government may collect and they should respect that, yet at the same time I want the government to protect me and my environment. Do we ever stop and think how will the government gather such intelligence to provide us with the security we expect? There will never be a clear line, nor a position that will fit everyone.
In South Africa the debate is similar, slightly different, but still a conundrum. We as citizens demands our privacy to be protected, but at the same time we want open access to the information in government. Don’t get me wrong, I support the “open or transparency” requirement for government, from a National right down to Local level. Government is by the people, for the people, but is our requirement the right thing to put in the public domain? Certain information is, but I can assure you, certain things are best left alone and away from the public or people who exploit it. Yes, we need to fight corruption and rid the country from the rot of corruption, but are we approaching it correctly.
“Damned if we do, damned if we don’t” is a certainty when you venture into politics! What I can say is that when it comes to privacy, technology is a highlighted subject and cannot be ignore or be treated like we’ve been treating it for the last decade or two.
The first time I heard the term “AdWords” most probably the first time in 2006, when I really started using Google. Prior to 2006 I had no real interest in websites or the internet, and mainly used Yahoo email and the IRC to communicate. I can still remember that before 2000, Google didn’t even feature in my vocabulary and MAMMA.COM was my search engine of choice on Netscape Navigator. I was surprised the other day to find MAMMA.COM is still active after all these years.
I would imagine that most of us came to know AdWords through Google. They basically took AdWords and turned it into a billion dollar enterprise. However, people I talk to are surprised to learn that keyword-based advertisements have been around for more than 15 years.
What most of us might be unaware of is the fact that these ads have had many legal debates and uncertainty, but in 2014 I saw another shift in the USA.
In ads, the main source of confusion and debate stems from figuring out the legalities of trademark laws. Long ago, in Playboy v. Netscape, it was argued that the court should consider the dictionary meanings of keywords opposed to the trademark meanings. This position was held for a long time, but the their Appeals Court reversed this position.
Some of their courts held that keyword advertising is exempted from trademark law. They found that the keywords were invisible and thus not actually “used”, while others followed the same exemption, but for another reason. In the latter their courts found keywords were used for functionality and not as a trademark. These rulings were abolished in the 2009 Rescuecom case, as well as the 2012 Rosetta Stone case. In 2013 it was demonstrated, in the 1-800 Contacts v. Lens.com case, that they couldn’t justify claims against keyword use of a competitor’s trademark.
This means that after more than a decade of litigation, AdWords and basically any other keyword-based ads conforms to the standard tests of trademark infringement.
Where does this put us or where will it put us. How many company names are general words? Maybe not the best example, but I can think of Mango for instance. So if my fruit store have the best deals on mangos, does it mean I will infringe on Mango Airline’s trademark if I use ‘mango’ as a keyword to promote my deals. Doing a quick Google search for the word “mango” I got Mango airlines, as well as a fashion store called Mango which established in 1984. The word ‘mango’ might not be trademarked, but I am trying to make the point of everyday words that might be.
What about people’s names? FNB had a campaign about a character called “Steve” if I remember correctly. So if my name is Steve and I have an auto repair garage, called Steve’s or Steve Repairs and my website is steve.co.za, does it mean I infringe on a trademark if I use the keyword ‘steve’? Steve was born in 1965, so shouldn’t he have more rights to the name?
The aforementioned four areas are where I hope we might see the South African courts follow suit in terms internet law. There were other important cases in the USA in 2014, in respect of data breaches, surveillance, mobile apps, and so forth, but I focussed specifically on internet law and regard these four as the big shifts in legal rules for 2014 that might impact on us.
If we think practically of the aforementioned four areas, then the reality thereof is not that far fetched, nor is the effects. Just imagine Foschini taking Edgars to court over AdWords, or a citizen being taken to court by a company in respect of changes in the company’s terms-and-conditions. If you are aware of South African cases that already touched on the aforementioned, post it here or feel free to share your thoughts and maybe add on to the list.