Defamation Confidentiality4 specific risks Personal Information Intellectual Property
Defamation Confidentiality1st risk Personal Information Intellectual Property
Defamation“the intentional and wrongful publication of words orbehaviour to a third party which has the effect(objectively viewed) of injuring or undermining aperson’s or entity’s good name, status or reputation”
DefamationThe internet has increased the scope of and riskassociated with defamationThere are now more ways in which publication mayoccur
RememberDefamation includes the repeating,confirmation or proliferation of defamatorycontent……so beware of republishing, email forwarding,linking and retweeting.
AcceptHope for the best and deal with it if it happens
Defamation Confidentiality3rd risk Personal Information Intellectual Property
The right to privacy is protected by theConstitutionHowever, there is currently no umbrella lawgoverning privacy of personal information inSouth Africa
Enter the Protection of PersonalInformation Bill (POPIA)
POPI the intention> To give effect to the Constitutional right to privacy> To regulate the collection/processing of personal information> To provide individuals with rights and remedies> to establish an Information Protection Commission
POPI Section 10Personal information may only be processed:> with the data subject’s consent> if processing is necessary for completion of a contract> if it protects a legitimate interest of the data subject> if in compliance with an obligation imposed by law> if in pursuance of the legitimate interests of the processor
Direct marketing Opt outECTA (section 45) and the CPA (section 11) both requiredirect marketers to provide recipients with an option to “optout”The CPA envisages an “opt out” registry (like that of theDMMA), but this has not yet been implemented.
Direct marketing Opt inPOPI, however, will implement an “opt in” framework,mirroring the approach being adopted in Europe.
Direct marketing Opt inDirect marketing is prohibited except:> with specific consent of the data subject> to customers, where: > the processor has obtained personal information in the context of a sale > for marketing of processor’s similar products/services > if data subject has been given opportunity to object or opt out (free of charge)
Direct marketing Soft opt inIn the UK, the implied “opt in” is known as a “soft opt in”.It applies also in the context of negotiations leading up to asale.
What is copyright?“A proprietary right which arises automaticallywhen an author reduces an idea to a materialform.”
What is copyright?No requirement for registration (in SA)Copyright can be: > assigned (must be in writing and signed) > licenced
Breach of copyrightBreach or infringement of copyright may be:> direct (guilty knowledge is not a pre-requisite)> secondary/indirect (unauthorised dealing)> contributory (facilitation of infringement)
Important!Copyright in work produced by employee in thecourse of employment vests with employerOnline properties often comprise of many differentcopyrighted assets
What is a trademark?A mark which distinguishes a person’s goodsor services (requirement of distinctiveness)Must be registered with CIPC and renewedevery 10 years
Breach of TMInfringer’s mark is confusingly similar in respect of the samegoods/services (reasonable likelihood of confusion)Infringer’s mark is identical or similar to a registered mark inrespect of similar goods or services
Breach of TMDilution of trade mark:> by blurring (dilution of uniqueness; may be different or non- competing goods/services)> by tarnishment (negative/offensive use of TM)
Meta tags and PPCA common sense approach should be employed (certain bonafide uses protected under Trade Marks Act)> purely descriptive purposes (advertising products on an e- commerce site) would generally be ok> use of a competitor’s marks to deceive or lure consumers would generally not be ok