Reinhardt Buys
BLC LLB (Pret) LLM (UCT)
Sonnenberg Hoffmann & Galombik Attorneys, Cape Town
Johan Rothman
BSc (Unisa)
Business Manager: E-Commerce & Internet, Boland PKS

Introduction | What is the Internet? | Internet role-players | International Internet organisations | Internet organisations and role-players in South Africa | History of the Internet | Author biographies
1. Introduction
A few years ago nobody expected a whole new borderless and electronic jurisdiction commonly referred to as the Internet. For some the Internet is a valuable source of information, for others it’s a jungle of useless nonsense. For some the Internet is a way to communicate, for others it’s a danger to their privacy. For some the Internet is a new way to do business and for others it’s a threat to their traditional businesses. For some the Internet is a new way to entertain themselves, others see it as a source of indecent and obscene material. Some see the Internet as a challenge, others as a passing craze. However we look at it – the way people trade, communicate, entertain, research and educate will never be the same again.

In this introductory chapter, we focus on what the Internet is, how it works and who the main role-players are, both domestically and internationally. Those in the legal profession will find this chapter helpful in becoming comfortable with the terms, definitions and concepts used throughout this book.

2. What is the Internet?
According to Smith1 the Internet is simply a “network of computer networks”.
 
Benzine & Garland2 define the Internet as “the world wide network of networks that are connecting each other into one single logical network all sharing a common addressing scheme”.

Kraynak & Hebraken3 define the Internet as “a world-wide network of interconnected computer systems and a series of several types of computer services”.

11

The Albion Netdictionary defines the Internet as a “world-wide network of networks that all use the TCP/IP communications protocols and share a common address space. First incarnated as the ARPANET in 1969, the Internet has metamorphosed from a military internetwork to an academic research internetwork to the current commercial internetwork. It commonly supports services such as e-mail, the World Wide Web, file transfer and Internet Relay Chat.”
 
A local definition of the Internet is found in Telkom’s VANS licence:4 “an integrated computer network through which users are connected to each other by means of the TCP/IP family of protocols”.5
 
All these definitions are true to a certain extent, but incomplete. A full description of the Internet has to encompass its physical parts, functions, history and the role-players who created, maintain and use it.
2.1 The physical Internet

Physically, the Internet is a collection of packet-switched computer networks, glued together by a set of software protocols called TCP/IP (Transmission Control Protocol/Internet Protocol). These protocols allow networks and the computers connected to them to communicate and share information. TCP/IP create what is called a packet-switched network, a kind of network intended to minimise the chance of losing any data sent over networks. First, TCP breaks down every piece of data into small chunks called packets, each wrapped in an electronic envelope with Web addresses for both the sender and the recipient. The IP protocol then figures out how the packets are supposed to get from the sender to the recipient passing through a series of routers, like regular mail passes through several post offices on its way to a remote location. Each router examines the destination address of the packets it receives and then passes them on to a router as they make their way to the final destination. If an e-mail message was broken up into ten packets by TCP, then each of those may have travelled a completely different route, but the recipient will never know it because as the packets arrive, TCP takes over again, identifying each packet and checking to see if it is intact. Once all the packets have arrived, TCP reassembles them into the original data.

The core of the Internet is a set of high-capacity backbone networks. These
networks carry the bulk of Internet traffic and are collectively known as the Internet backbone, owned by major Internet access providers in the US.

Before a user can consider using the Internet, his/her computer needs an operating system with a graphical user interface such as Windows. To take full advantage of the World Wide Web a user will also need a browser. Browsers are software programs that enable users to view documents on the Web as they translate HTML-encoded files into text, audio and video. The most popular browsers are Microsoft’s Internet Explorer and Netscape Communicator.

12

To connect to the Internet a user needs an agreement with an access provider, typically a commercial organisation. They range from large organisations with their own geographically dispersed Points of Presence (POPs) to small providers which provide one or two local telephone numbers and a single connection into another network. Access providers provide a variety of services, ranging from a cheap dial-up account suitable for a home user to a permanent leased-line connection aimed at commercial use. The typical dial-up account holder will pay a fixed monthly access fee and will pay the local telephone charges on top. The leased-line account holder has no usage-based charges at all, as the leased line provides capacity at a fixed rental. Leased lines have a higher bandwidth and are more expensive and more suitable for businesses. Bandwidth is the amount of information or data that can be sent over a network connection in a given period of time. Bandwidth is usually stated in bits per second (bps), kilobits per second (kbs) or megabits per second (mps).

A user furthermore needs a means of communication with the access provider. A dial-up account holder will use a telephone line and a modem. A modem converts a computer’s digital signals into analogue (sound waves) to be transmitted over standard telephone lines. Businesses usually use a permanent leased-line connection. Another telecommunications technology that will have a big impact on the Internet is Integrated Services Digital Network (ISDN). ISDN is literally digital telephones. Rather than convert a computer’s digital signals into analogue, like a modem does, ISDN transmits a digital signal over digital telephone lines. The advantage is a much faster connection because there is no conversion from digital signals to analogue and back again to digital signals.

The access providers in South Africa make extensive use of infrastructure rented from Telkom. The reason is that Telkom has a monopoly on the provision of telecommunication facilities to be used for, among others, Internet access.6 These lines, being primarily Diginet lines, are used to connect the access provider to corporate customers, other access providers, peering points and international companies for a connection to the world-wide Internet. Diginet lines are high-speed dedicated connections provided by Telkom. Some smaller access providers obtain the international connection through bigger access providers. Telkom lines are also used to connect the access provider to Points of Presence (POPs) in locations geographically remote from the networking centre of the access provider.

13

Users can also use cell phones and a satellite connection to connect to the Internet. The satellite connection is a one-way link (simplex) and used in conjunction with a regular dial-up or leased-line connection. The regular connection is used for outgoing data and the satellite link for incoming data. A user needs a satellite dish (aimed at the PAS-4 satellite)7 and an interface card plugged into the user’s computer. Because most Internet traffic is incoming, the speed8 is much higher and bypasses international bottlenecks and poor line quality.

 
Get the homepage of Infosat and more information about satellite
connections to the Internet at
http://www.infosat.co.za/
 

Get the Siyanda homepage and more information about satellite
connections to the Internet at
http://www.siyanda.co.za/

2.2 Services of the Internet

The Internet is made up of several different components or services – the World Wide Web, Internet e-mail, newsgroups, FTP sites and even Internet real-time chat. This section outlines some of the more popular components and services available on the Internet.

2.2.1 The World Wide Web (Web or www)
The Web is currently the most popular on-ramp to the Internet’s information and although the terms Web and Internet are often used synonymously, they are actually two different things. The Internet is the global association of computers that carries data and makes the exchange of information possible. The Web is a subset of the Internet – a collection of interlinked documents that work together using a specific Internet protocol called HTTP. Web documents use special links that take the form of highlighted or underlined text and graphics to link to other documents (referred to as hyperlinks). A hyperlink is a highlighted word or picture that, when clicked on, takes the user to another document on the same site or another site that might be hosted by a computer on the other side of the world.

In order to move around the many sites on the Web, a user needs a Web browser such as Microsoft’s Internet Explorer or Netscape Communicator. These browsers provide powerful, yet easy-to-use, features that allow the user to take full advantage of all the content on the Web. Besides the Web’s text and graphics, a user can also access special multimedia content such as audio, video and interactive web sites with a browser.

14

The Web is based on a set of protocols for exchanging content, which is collectively known as the hypertext transfer protocol (HTTP). Web documents can be exchanged over the Web because browsers and hosts (computers that store the Web documents) both understand HTTP. But everything on the Web would still be chaos if the Web did not have an addressing scheme for every computer. For this reason every Web document is stored on a computer (host) that has an IP address. It is a four to twelve-digit number that identifies a specific computer connected to the Internet. The digits are organised in four groups of numbers, which can range from zero to 255, separated by dots (periods). Depending on how a user’s ISP (Internet service provider) assigns IP addresses, a user may have one address all the time or a different address every time that the user connects to the Web. If a user types http://204.162.80.183 in a browser, the same result would be obtained as if the user had typed http://www.cnet.com/.

Domain names are the next level of Internet addresses as they create a single identity for a series of computers used by a company or an organisation. While there may be 38 hosts in a given company, or 38 documents on a single host, each with a different IP address, they all share a common domain name such as mweb.co.za

There is a great deal of confusion over the meaning of the different words and terms used to explain the addressing scheme of the Internet. These words and terms include:
  • Domain name – a unique number that identifies an Internet site. Domain names are derived from a hierarchical system, with a host name followed by a top-level domain category such as .com or .org. They act as easy-to-remember addresses for web sites,
    e.g. www.shg.co.za
  • Domain name server – a computer that converts domain names, such as www.shg.co.za, to an IP address such as 10.1.1.128
  • Domain name system (DNS) – a protocol and a distributed system of databases and server programs that translate domain names into IP addresses. No single domain name server contains information on all Internet sites, but by accessing a hierarchy of name servers, a local DNS program can resolve a name, and route a communication to the intended computer.
  • IP address – a string of four numbers separated by dots (e.g. 192.168.10.99) used to represent a computer on the Internet. The format of the address is specified by the Internet Protocol in RFC 791. When a PC accesses the Internet through an access provider, it sometimes receives a temporary IP address.
  • Universal resource locator (URL) – the standard way to give the address of any site on the Internet, e.g. http://www.shg.co.za or
    telnet://well.sf.ca.us
 

15

The language of the Web is the Hyper Text Mark-up Language (HTML). Every document on the Web, the hyperlinks and even the graphics and scrolling banners are created in the HTML language. While HTML is the language that describes the basic elements of every Web document, it is technologies like Java, JavaScript and ActiveX that programmers use to create animated and interactive Web documents – the kind that move, flash and play games.9

2.2.2 E-mail
E-mail is the oldest Internet service, dating back to the mid-1970s. Then and now the basic concept behind e-mail is fairly simple – a user logs onto a computer system and writes and addresses a text message to a user on another system. The message is then routed through the maze of interconnected computer systems until it is delivered to its intended address. Nowadays users can also attach other types of files such as a text document, spreadsheet or even audio and video to e-mail messages.
 
After an e-mail message is typed, it is sent by clicking with a mouse on the send button in any of a number of software programs – that command sends the e-mail from a user’s machine on its journey to the recipient’s computer. The message goes to the ISP’s Simple Mail Transfer Protocol (SMTP) mail server. There the message is coded with SMTP information specific to the user and the recipient. The message is then placed on the Internet and moves from router to router and finally to the recipient’s ISP where it can be downloaded and read.
 
2.2.3 USENET, newsgroups and bulletin boards
USENET refers to a service that is very much like a public bulletin board where users can share information, insights and concerns. USENET allows a user to post messages to a public area, a newsgroup, where a number of other newsgroup participants can read it. Replies, and sometimes heated debates, can then be posted in the newsgroup that held the original message.

Newsgroups began in 1979 as a service connecting computers at Duke University and the University of North Carolina. Today it is immensely popular, with topics ranging from law, politics and astrology to tattoos and health.10

16

Example of a South African bulletin board at http://www.24.com/service/messageboard

2.2.4 File transfer protocol (FTP)
FTP is a way to download files and computer software from the Internet. Many FTP sites are operated by computer hardware or software manufacturers who use their FTP sites to distribute their software and software updates. From some web sites even screensavers and wallpaper for the user’s desktop can be downloaded. There are FTP programs for downloading software, but most browsers have FTP download capabilities built in.

Example of a site where users can download free screensavers
and wallpaper by using FTP at http://www.freesaver.com
 
2.2.5 Internet chat
The ability to chat on the Internet in real time is immensely popular. Internet Relay Chat (IRC) was the first chat system and used IRC servers as places for users to congregate and chat via their keyboards. A number of more sophisticated chat lines have now become available, such as iChat and MIRC, which turn a web browser into a chat program that allows a user to view and send chat messages.
 

Example of a chat line where the chat line software can be downloaded at http://www.mirc.co.za

2.2.6 Videoconferencing
Videoconferencing is a live connection of two or more people using a combination of video, audio and data to communicate. Although videoconferencing software and hardware are already available, fundamental issues of usability and functionality still remain. At the moment videoconferencing is not a compelling real-time experience – the frame rates are slow and the audio is choppy. The problem is the huge bandwidth that videoconferencing requires to function properly.

17

2.2.7 Internet voice telephony services (VON)
One of the most significant new services available on the Internet is a voice telephony service using Internet protocols and packet-switching techniques. This service is known as Internet voice telephony or Voice over the Net (VON). Some commentators see VON as a potential threat to conventional telephones. Unlike traditional telephone services, which are charged on the basis of the length of a call, VON is charged at a flat rate, being the cost of connecting to an access provider, together with the cost of the local dial-up call to the access provider. The quality of VON, however, is not yet equivalent to traditional telephones.

The legal classification and international regulation of VON is a thorny issue. In terms of section 40(3) of the Telecommunications Act11 no person who provides a value-added network service shall permit that service to be used for the carrying of voice until a date to be fixed by the Minister of Posts, Telecommunications and Broadcasting. As Internet access is seen as a value-added network service,12 no access providers may provide VON services in South Africa yet. It is however impossible for access providers to prevent VON, since there is no discernible difference to the access provider between data traffic and voice traffic.13 Although access providers do not actively market VON, the software to enable it is freely available and suppliers operate entirely outside the regulations of the Telecommunications Act.14 We suggest that SATRA start the consultative process to lift the restriction as a matter of urgency, not only because it is unenforceable, but also because it only serves to restrict technological development in a country where it is desperately needed.

Get the 1996 Telecommunications Act at

2.2.8 Intranets
Intranets are generally private company networks using Internet protocols and Internet compliant software to connect to the Internet (or just to each other). The intranet could be either a local area network (LAN) that connects computers in a relatively small area, like a building, or a wide area network (WAN) which covers a large geographical area. Intranets are hidden from the public view by a protective firewall. A firewall is a device situated at the entry to a computer network, designed to prevent unauthorised persons or data entering the network.15

18

2.2.9 Extranets
An extranet is basically an intranet to which selected outsiders, such as paying customers or even suppliers, have access through the use of a login name and password.
 
2.2.10 Next generation Internet or Internet II
As the Internet’s popularity increases daily, it also suffers from its own success. Technology developed for a network of thousands of users is labouring to serve a network of millions of users. Delays and gridlock on the Internet are making it harder for the Internet’s original community – scientists and researchers ­ to get connected. A further problem with the current Internet is that the IP addressing system is under strain and some believe the Internet is in danger of running out of addresses in 2010.
 
In October 1996, US President Bill Clinton announced a five-year plan, called the Next Generation Internet Initiative. The idea is to create a new Internet or Internet II, with speeds that are 100 to 1 000 times faster than the present Internet and with features such as security, reliability and affordability.16
 
More information on Internet II available at
http://www.ccic.gov/ngi
3. Internet role-players – who’s who and what do they do?
Unlike in a technical analysis of the Internet, it is important in a legal examination to classify the various legal personae involved in the Internet and see how they fit together legally, commercially and physically.
 

The core infrastructure of the Internet consists of routers, hosts and pipes. Routers are special-purpose computers or software packages that handle the connection between two or more networks by looking at the destination addresses of the packets of data passing through them and deciding which route to send them on. Hosts are computers that store information and make it available across the Internet. The information on a host could vary from web sites to newsgroups, databases or software programs. Pipes are the telecommunication connections that link the hosts and routers together and could vary from landlines to satellite signals. Hosts and routers are owned by various government organisations, private organisations or individuals, while pipes are usually owned by telecommunications companies. The capacity or bandwidth of pipes affects the amount of data that can be carried and the speed at which it is delivered to the user. While the backbones of the Internet are typically high bandwidth, the last link to the home user is typically a low bandwidth ordinary telephone line.

19

3.1 Internet service providers (ISPs)
An ISP provides a collection of services, including Internet access, content hosting and web site design, and is an example of an Internet role-player with more than one role. From a legal point of view, it is necessary to examine the exact role an ISP performs. An ISP who hosts web sites for its customers, provides access to the Internet, has a news service on its homepage and a search engine, plays the role of both access provider, host, content provider and navigation provider. The term ISP could therefore create confusion, as it refers to any number of Internet roles collectively.
 
The Californian case of Religious Technologies Centre v Netcom Online Communication Services Inc.17 provides a good example of the multiple roles often performed by ISPs. Netcom is introduced in the judgment as a large Internet access provider, but the question of copyright infringement in fact turned on a detailed analysis of its role as a USENET host.18
 
Although the terms “Internet service provider”, “Internet solution provider” and ISP are in common use, they are potentially confusing because they do not distinguish the underlying roles of access provider, host, navigation provider, content provider and transaction facilitator. In any legal argument, the underlying roles are of critical importance.
 
In the South African context there seems to be an established difference between the definitions of 0147Internet access service” and “Internet service”, as defined by SATRA. “Internet access service” means the provision of an Internet Protocol (IP) service allowing online access by the recipient of that
service to the world-wide Internet. The broader term “Internet service” refers both to access and services such as e-mail, videoconferencing and information services.19
3.2 Access providers

An access provider gives users access to the Internet. The first access providers were academic institutions, which enabled their staff, faculties and students to access the Internet. In South Africa, Uninet is a good example of such an access provider. Today the typical access provider is a commercial organisation selling Internet access to home and commercial users. These access providers have their own geographically dispersed Points of Presence (POPs) and local dial-up numbers across the country. A variety of access options is available, ranging from cheap dial-up accounts, faster ISDN connections or permanent leased-line connections for businesses
and commercial users.

20

Telkom SAIX is a typical access provider; a list of its POPs and dial-up numbers is available at
http://saix.net/business/access-table.html

 

Get a topological map of Southern African Internet access providers at http://ispmap.org.za
3.3 Peering agreements

Access providers have both physical links to and contractual relations with other access providers and the networks they serve. The physical connection enables the Internet traffic to flow between the two access providers through peering points. At present there are peering points in Rosebank, Johannesburg (JINX) and Newlands, Cape Town (CINX) operated by ISPA, and an independent peering point operated by Uninet. The contractual arrangements are called peering agreements and govern the exchange of information between the participating access providers’ networks. The model is to allow mutual exchange, and generally no consideration is payable by any of the parties. However in South Africa amounts are payable in terms of local peering agreements. The agreement typically states that none of the participants may restrict use of the information on their networks or filter such information before transmission or on receipt. This includes that no wire-tapping or monitoring of information is allowed. No statistical information about information traffic flow may be supplied to third parties and liability for the submitting or acceptance of information is excluded. As the parties may be from different jurisdictions, there is generally a paragraph stating the governing law.

If there is no direct physical connection or peering agreement in place between two networks, the traffic has to find another route. The Internet protocols, described above, are used to route around such blockages. A user in Cape Town, accessing a web site on a host down the road, could therefore find that the message is routed through the US. The political tension between Telkom SA Limited and the ISPA caused users who were linked to Telkom’s SAIX infrastructure slow response times on local sites, because SAIX was not allowed to peer with the peering points ISPA established in South Africa. At the London peering point in the United Kingdom (LINX), all peering partners are physically connected to the peering point, but Internet traffic is only allowed to pass between networks of peering partners who have negotiated specific peering agreements with each other. To establish a physical connection to LINX, an ISP must have peering agreements in place with at least 20% of the other members.

21

An example of a peering agreement is available at
3.4 Hosts
A host computer stores the data that can be accessed through the Internet by a user. The data can take many forms – from software programs to web sites with text, graphics, audio, video and other databases. A host may also act as a storage place for USENET newsgroups or for hosting e-mail in mailboxes for subscribers – thus the description servers, mail servers or news servers. This is, however, not an accurate description as a server is strictly speaking a piece of software that delivers data from a host on request, like a Web server delivers Web pages and a domain name server delivers domain name requests. The difference is not merely academic and host and server should not be used as synonyms.
 
3.4.1 Ownership of host computer and ownership of content
It is important to distinguish between the owner of the host computer and the owner of the content hosted on that computer as the data may attract civil and criminal liability. At the one end of the spectrum, the owner of the host computer also owns and controls the data, as in the case of a business that self-hosts its web site. At the other end of the spectrum, the owner of the host computer may only have the most tenuous connection with the stored data. A host computer that hosts e-mail messages in mailboxes for subscribers is a good example. This is akin to the relationship between a post office and the contents of a letter in a post office box. A USENET host is another good example. The USENET host receives automatic updating feeds from other USENET hosts and sends postings from its own subscribers to other USENET hosts.

Between these extremes could lie numerous variations. A host may store its own data or data hosted on behalf of other parties, for free or for reward, as a commercial service. The data may be permanent or ephemeral. The owner of the host computer may be actively involved in the process of placing data on the host, for instance if it provides Web design and HTML coding services – or it may do nothing more than provide storage space, bandwidth and a domain name and IP address, taking no part in the selection or design of the information. Furthermore, the host owner may promote itself as a desirable network to visit, e.g. an online shopping mall, or promotion may be left entirely to the content providers, so that each collection of information on the host appears to the outside world as entirely separate and unconnected.20

22

The responsibilities and liability of the host owner will vary according to the exact nature of the role it assumes. In every situation the relationship between the owner of the computer and the data stored on that host should be examined and tested against the requirements of the specific form of liability that may be in question. Liability for copyright infringement, defamation and hosting child pornography each has its own set of rules and requirements.
 
3.4.2 Hosting contract
Where the owner of the host is not the owner of the content, there will generally be a contract between the two parties to host the data in the form of a web site. Such a contract needs to address two important issues. First, the host is the storage device on which all the content constituting the web site is kept. Second, the host is connected to the Internet and provides a conduit through which users can access the web site.

As regards storage, the contract needs to set out the storage space available to the content provider, how it might be increased and the basis for calculating any difference in the charges should the storage space be increased. Furthermore, a web site is not static and the content provider will want to retain immediacy with regular updates and changes. The contract should set out how updates and changes are to be made, the frequency with which they can be made, who will be responsible for the updates, the time it will take the host to implement the changes and the costs involved.

23

As regards access to the web site, the bandwidth of the host’s connection to the rest of the Internet will be important. The host will not want to pay for unused bandwidth and the web site owner will not want the site to be unavailable due to bandwidth congestion. The contract should specify the obligations of the host to manage peaks and troughs, to ensure that the site is readily available to users. The availability of the site should also be set out and whether and when down time is allowed. Defining availability in information technology contracts is never easy. The parties should aim to tie it to clearly measured criteria and set out how it is to be monitored and reported. The host might even be able to provide alternative or back-up hosting if the main system is down. These considerations should reflect the global nature of the Internet and therefore the time zones which are important for the content provider. Where the site is used for commercial purposes, the content provider may wish to specify financial remedies for failures to provide services, for example if the host server goes down or access is impossible. On the other hand the host will wish to exclude liability for loss of business, which may in any event be impossible to quantify. Obviously the parties cannot control the quality of the access provider or communications medium a remote user uses to access the site and the level of congestion on the Internet as a whole.
 
If the web site allows for the collecting of information from users, e.g. e-mail messages, the contract should specify how and at what intervals this information should be forwarded to the content provider. The host might also be able to present the content provider with meaningful statistical information about the number of visitors to the site.
 
The host should be protected against liability if the content on the web site attracts liability, and may impose an obligation on the content provider to exercise appropriate control over content or to indemnify the host should there be any liability. Like any indemnity, its value depends on the ability of the content provider to pay up and the host may wish to obtain insurance against third party claims. The contract may furthermore set out guidelines as to taste and decency, and give the host the right to remove material that it reasonably believes could lead to liability.
 
The ownership of the copyright in a web site is examined in detail in
chapter 2.
3.5 Content providers

Content providers are probably the most important people on the Internet as they provide the available data and information. Content providers could range from multinational companies and governments to private individuals. The content they provide is available in many forms – there is information available on the Internet on every conceivable topic. Every government department has a web site with loads of information. Businesses advertise their services and goods on the Internet. Individuals have sites on special interests and hobbies. The list is never-ending.

24

3.6 Navigation providers
A regular complaint about using the Internet is that the content is distinguished by quantity rather then quality. Even if there is quality content available, it is not always easy to find it or even assess the quality of content found.
 
Navigation providers play an important role to separate the useless content from the useful. They may take different forms – umbrella sites such as online shopping malls are effectively navigation providers, attracting customers to their selection of retailers who usually pay for space on the mall. News collectors are another type of navigation provider. They range from conventional online newspapers to sites that allow a user to select categories of news and that even monitor the user’s reading habits and provide content based on that. These sites may produce their own content, but are more likely to have done deals with content providers enabling them to select from a pool of quality-assured content.21
3.7 Search engines

At present some of the most important navigation providers are search engines and Internet directories. They catalogue resources across the Internet, so that the user can either perform a keyword or phrase search for relevant sites, or consult a structures directory for sites of interest. Many sites also collect content on a specific topic and either host that information or provide links to the information. Most search engines invite content providers to place a summary of their content on the search engine for search purposes by other users. These first-generation search engines index key words provided by the content providers themselves, which are often misleading because they have been included in order to get better rankings on search engine results. Second-generation search engines have more control over the indexing process and attempt to distinguish the quality of content. M-Web launched MAX, a second-generation search engine which allows users to search by asking questions in day to day natural language.22

Example of a second-generation South African search engine at http://www.max.co.za

As navigation providers compete and gain a reputation for effective sifting of the wheat from the chaff, they become some of the strongest brands on the Internet and attract the most hits per day – therefore they are able to command high prices for third party advertisers or sponsorships. Navigation providers also tend to be at the centre of some of the most complex sets of contractual relationships to be found on the Internet.23

25

3.8 Transaction facilitators

The increase of electronic commerce on the Internet has stimulated investment to overcome shortcomings. In addressing these concerns, e.g. security, transaction facilitators license and patent various security and digital signature products. Trusted intermediaries verify identities and credit standing.

These transaction facilitators are likely to play a more important role as electronic commerce increases and users develop trust in the Internet as the transaction risks are reduced to an acceptable level.

Example of a transaction facilitator providing security at http://www.saca.net
 
Example of a transaction facilitator providing financial administration at http://www.ecnet.co.za
3.9 Web site designers and web site creators
Web site designers and creators are used by content providers. For example, a law firm wishing to establish a web presence may have all the content ready, but will need a web site creator to program the original content into HTML, and a web site designer to design the look and graphics of the site. The creator and designer will usually be the same person or business.
 
3.9.1 Contract for web site design
If a separate design agency is used, the contract will have to address the
primary question of ownership of the intellectual property rights in the design. The copyright will have to be assigned to the content provider. The underlying ideas of the design may be more difficult to protect and the content provider may wish to consider a contractual restriction on the designer to design a similar site for a rival. Such a restriction should take the relevant competition law into consideration.
 
3.9.2 Contract for the creation of a web site
The contract for the creation of the site will be akin to a software development agreement, being typically divided into phases with milestones for payment – depending on the time scales, size and complexity of the site. The content provider should be allowed to conduct acceptance tests. These may be carried out in a variety of ways but typically the creator will create a prototype site on a closed network for testing by the content provider. There may be further live testing on the Internet under a dummy name until the site is ready to be made public. The content provider must ensure that multiple users can access the site simultaneously, that all the hyperlinks function and that the site can be accessed with all the major browsers.

26

As with the design of the site, the issue of ownership of the intellectual property rights will have to be addressed with the party’s commercial needs in mind. The content provider will be concerned about the site’s portability – the ability to move the site to another host, with the minimum delay. Given the nature of the Internet, the content provider will not wish to countenance a period during which the site ceases to be available while somebody else is recreating it. The contract should also make provision for the content provider to have a hard copy of the material constituting the site, as well as copies of updates.24
3.10 Public access providers
Some businesses and organisations offer public access to the Internet by allowing customers to make use of computers connected to the Internet at a specific location, for example Internet cafés. These services are usually charged for on a time basis. The Post Office is also in the process of developing a Public Internet Terminal (PIT) based on a smart card, which will be deployed at every post office in South Africa.
3.11 Webmaster
A webmaster is an individual who manages a web site. The person could be an employee of the business that owns the web site or could act in a personal capacity. Depending on the size of a web site the webmaster might be responsible for making sure that the web server hardware and software are running properly, designing and maintaining the site, updating the site, replying to user feedback and monitoring the traffic through the site. Most web sites have a link to information about the particular webmaster, e.g. an e-mail address.
3.12 Portals

A portal is a web site that is used as the first stop when a browser is activated. These sites generally have a news section, search facility and the day’s weather, and may be customised by the user.

27

Example of a South African portal at
4. International Internet organisations
4.1 World Wide Web Consortium (W3C)

The W3C is an international organisation focused on the Web. Its work is divided between four working groups – the User Interface group, the Technology and Society group, the Architecture group and the Web Accessibility initiative.

The User Interface group sees to it that the Web is improved in functionality but kept as simple as possible. This group sets standards for the language of the Web, HTML, and currently works on HTML 4.0 which has new features such as multimedia, objects, scripting, internationalisation and support for style sheets. This new version of HTML allows text to be written from right to left, as in Arabic and Hebrew, and also caters for those who use speech synthesisers and Braille to communicate.

The Technology and Society group concentrates on the issues that arise from the application and use of the Web. They address issues like digital signatures, privacy, electronic commerce, security and intellectual property rights.

The Architecture group of W3C looks at the future and leads the evolution of the Web by concentrating, among others, on convergence issues and the integration of Web and television technologies.

Finally, the Web Accessibility Initiative leads the Web to its full potential by
promoting a high degree of usability for people with disabilities.

Get the homepage of the World Wide Web Consortium at
4.2 The Internet Society (ISOC)

ISOC was formed in 1992 and has its headquarters in Reston, Virginia. It serves as the international organisation for global co-ordination and co-operation on the Internet. It promotes a broad range of activities focused on the Internet’s development and availability and associated technologies. ISOC is a professional membership society with more than 150 organisational and over 6 000 individual members in over 100 countries. The society is governed by a Board of Trustees elected by its members around the world. It provides leadership in addressing issues that confront the future of the Internet – such as access, censorship, copyright, e-commerce, encryption, privacy, spamming, viruses and domain names systems. A common stake in maintaining the viability and global scale of the Internet binds the members.

28

ISOC is also the organisational home for groups responsible for Internet standards, e.g. the Internet Engineering Task Force (IETF), the Internet Architecture Board (IAB) and the Internet Assigned Numbers Authority (IANA).

The Internet Engineering Task Force (IETF) is concerned with the architecture and smooth operation of the Internet. The Internet Architecture Board (IAB) is a technical advisory group whose responsibilities include the overall architecture of the Internet, such as the backbones and all the networks connected to them. The Internet Assigned Numbers Authority (IANA) leads the organisations responsible for assigning IP addresses and the Internet Information Centre (INTERNIC) leads organisations responsible for assigning domain names.

Get the web site of ISOC at
5. Internet organisations and role-players in South Africa
5.1 Telkom SA Limited and the South African Internet Exchange (SAIX)

Telkom SA Limited historically enjoys an exclusive right to the establishment of basic telecommunications infrastructure in terms of the Post Office Act.25 The advent of the Telecommunications Act26 did not change this position.

Get the Post Office Act of 1958 and all the amendments at
 
Get the Telecommunications Act of 1996 at

Telkom’s monopoly is founded in section 78 and section 7(2) of the Post Office Act.27 Section 78 is incorporated by reference into section 36(1)(a) of the Telecommunications Act.28 Telkom’s monopoly is excluded or limited in respect of broadcasting,29 the operation of private telecommunication networks30 and the provision of cellular communication.31 In 1997 SATRA ruled that Telkom’s exclusive rights do not extend to Value Added Network Services32 which include Internet access services.33 Among the licences issued to Telkom in 1997 is a licence to provide Value-added Network Service (VANS)34 in terms of section 40 of the Telecommunications Act.35 This licence gives Telkom the right to provide VANS, which is defined to include electronic data interchange, e-mail, protocol conversion, access to a database or managed data network service, voice mail, store-and-forward fax, videoconferencing, telecommunication-related publishing and advertising services and electronic information services. Telkom’s Public Switched Telecommunications Service (PSTS) licence36 gives it an exclusive right to provide certain elements of the Public Switched Telecommunications Service. This includes the International Telecommunications Service37 and all telecommunication facilities to be used by any person for the provision of Value Added Network Services such as Internet access. Therefore, access providers are forced to use telecommunication facilities provided by Telkom.

29

Since 1996 Telkom has offered Internet access through the South African Internet Exchange (SAIX), a wholly owned subsidiary of Telkom. As SAIX is only an access provider and not a service provider like other ISPs, its costs are very low, as the cost associated with a value-added service is not incurred. SAIX has the greatest number of POPs with the largest geographic spread, from Messina in the north to Bredasdorp in the south, linked to a 40Mb international backbone.

At the end of 1996 Telkom launched Intekom, an ISP that sells Internet services on the open market.

Get the SAIX web site at http://www.saix.net
 
Get the Telkom web site at http://www.telkom.co.za

 

Get a list of all the SAIX POPs at
5.2 Internet Service Providers Association (ISPA)

ISPA was formed in June 1996 in response to the perceived threat to independent Internet access posed by the entry of Telkom into the Internet access market in the form of SAIX and Intekom. ISPA took the matter to the Competition Board and later made submissions to SATRA. In October SATRA announced that Internet access is a Value Added Network Service in terms of section 40 of the Telecommunications Act.38  

30

ISPA controls the South African peering points located in Johannesburg (JINX) and Cape Town (CINX). This allows member ISPs to carry their inter-SA traffic effectively without having to rely on agreements in the United States or Europe. In 1996 and 1997 ISPA decided by majority vote to exclude Telkom, SAIX and Intekom from connecting to these peering points because of the political stand-off between these organisations. This was changed in 1998 when all access providers were allowed and Intekom immediately joined.

Get the ISPA homepage at
5.3 South African Telecommunications Regulatory Authority (SATRA)

SATRA is a statutory body established by section 5 of the Telecommunications Act39 and is a regulatory watchdog for the telecommunications industry. One of the motivating factors for the creation of SATRA was to bring about a telecommunications environment with a clear separation between the functions and powers of the government, telecommunications operators and a regulator (SATRA) to encourage transparency and accountability. SATRA is responsible for the administration of government policy, issuing licences, managing the radio frequency spectrum and implementing a range of tasks mandated by the Telecommunications Act.40

In terms of its functions, SATRA is very similar to the Office for Telecommunications (OFTEL) established in connection with the liberalisation of the telecommunications industry in the United Kingdom, a process which culminated in the privatisation of British Telecom in 1994.

SATRA made a landmark ruling in 1997, namely that Internet access services41 fall under the ambit of Value Added Network Services (VANS)42 and not Public Switched Telecommunications Services43 for which Telkom has the exclusive right. Telkom therefore has no claim to exclusivity when it comes to Internet access.

Get the SATRA web site at
5.4 Department of Communications

The Department of Communications is the public service arm of the Ministry for Posts, Telecommunications and Broadcasting. With the establishment of the new political dispensation in South Africa in 1994 it was decided to place posts, telecommunications and broadcasting in one cabinet portfolio. The reasons for this move were that one ministry should head all forms of communication and because of the growing technological convergence between telecommunications and broadcasting.

31

The enactment of the Telecommunications Act44 changed the role and functions of the department comprehensively and also changed its name from the Department of Posts and Telecommunications to the Department of Communications. The name of the head of the department changed from Postmaster General to Director-General.

Get the homepage of the Department of Communications at http://docweb.pwv.gov.za/
5.5 Universal Service Agency (USA)

The Universal Service Agency is a statutory body established in terms of section 58 of the Telecommunications Act.45 The vision of the USA is to promote access to telecommunication and information services for disadvantaged communities through the promotion of public awareness, research and recommendations to the Minister of Posts, Telecommunications and Broadcasting. The USA will also manage a fund, the Universal Services Fund,46 to support projects bringing telecommunications to disadvantages communities.

Get the web site of the USA at
5.6 South African ISDN Forum (SAIF)

SAIF was formed in July 1995 to promote the use of ISDN technology in South Africa. Its objectives are to stimulate the use of ISDN solutions, monitor international trends and technologies and promote the introduction of ISDN into the commercial market. Membership is open to all parties involved in the use and supply of ISDN communications and equipment.

Get the web site of SAIF at

32
5.7 National Research Foundation (NRF) and Uninet

The NRF, a statutory body established in terms of the National Research Foundation Act,47 consolidates the activities of the former Foundation for Research and Development (FRD) and the Human Sciences Research Council (HSRC).

The NRF manages the Uninet network between academic institutions and research councils. The Uninet project started in 1987 as a network between
universities in South Africa and played an important role in the establishment of the Internet in South Africa. The main object is to provide computer networks complying with the standards of the Internet for the use of every academic, researcher and student in South Africa. Uninet is linked to the USA by a 3 Mb/s link and to all the commercial ISPs in South Africa. Full Internet facilities are available on Uninet.

The NRF appoints the manager of Uninet. A 10-member Uninet Board provides policy input.

Get the web site of the NRF at
5.8 Internet Society South Africa Chapter (ISOC ZA)

The South African Chapter of the international Internet Society was formed in October 1998 and is officially recognised by the Internet Society. In early 1999 ISOC ZA elected members of a namespace drafting committee to draft policy for the top-level .za domain name.

Get the web site of ISOC SA at
5.9 Domain name operators in South Africa
South Africa has been assigned the .za domain space by the Internet Assigned Numbers Authority (IANA). Uninet administers the top-level .za domain. A whole range of organisations and individuals administer the following second-level domains in South Africa:
 
.ac.za for South African research and academic institutions
.co.za for commercial organisations
.edu.za for distance learning organisations
.gov.za for government departments
.law.za for organisations and individuals involved in the legal profession
.mil.za for military establishments
.net.za for the ports on the networks of ISPs and for ISPs’ hosts
.ngo.za for non-government organisations (NGOs)
.nom.za for individuals
.org.za for non-commercial organisations, e.g. charities
.school.za for schools
.tm.za for legal owners of registered trademarks
.web.za for individuals or organisations who require namespace only for Web servers  

The Chapter of the Internet Society in South Africa (ISOC ZA) is in the process of developing a new policy for the .za namespace. The idea is to create a suitable organisation to administer and manage both the top-level .za domain and the secondary domains.

33

ISOC SA Namespace in South Africa (1999) at
6. History of the Internet
6.1 Origins of the Internet
Many people think that the Internet is a recent innovation, when in fact the essence of it has been around for over a quarter of a century. In 1962 the US Air Force commissioned the Rand Corporation to do a study on how the US could maintain its command and control over missiles and bombers during and after a nuclear attack. This led to ARPANET, a project to create a nation-wide computer network that would continue to function even if a large portion of it were destroyed by a nuclear attack. During the following two decades, the evolving network was used primarily by academic institutions, scientists and the US government. The appeal of the network to these bodies was obvious, as it allowed disparate institutions to connect to each other’s computing systems and databases, as well as share data via e-mail.

The nature of the Internet changed abruptly in 1992, when the US government began pulling out of managing the network, and commercial entities offered Internet access to the general public. This was also the year in which the World Wide Web was proposed by the European Laboratory for Particle Physics (CERN) in Geneva, Switzerland, as a means to better communicate research ideas between the members of the far-flung organisation.

34

6.2 The Internet in South Africa
The Internet in South Africa commenced when the first sustainable e-mail link was established in 1988 between Rhodes University in Grahamstown and a private home in Portland, Oregon.48 This link was later connected to the Internet. At about the same time the Foundation for Research and Development started the Universities Network (Uninet). Before that, around 1986, there were two networks between South African universities: one between Rhodes University, the University of Cape Town and the University of Natal in the south, and another between Potchefstroom University, Wits, the University of Pretoria and the CSIR in the north. Other universities soon joined as a result of Uninet and later the two networks were connected to each other. But in 1989 access to the world-wide Internet was restricted because of the political situation in South Africa.49

Developments in Uninet and the end of apartheid helped propel South Africa into the top 20 connected countries in the world. It was estimated in 1999 that South Africa had more than 1 million Internet users.50 In 1999 there were more than 80 ISPs in South Africa.51

Lawrie The History of the Internet in South Africa: How it began at http://apies.frd.ac.za/uninet/history/

Author biographies  
Reinhardt Buys grew up on the farm Beerlaagte outside Grootvlei (Mpumalanga) and matriculated from the Hoër Volkskool Heidelberg in 1989. He completed BLC and LLB degrees at the University of Pretoria where he was also elected to the Student Representative Council in 1994. After completion of his articles at Weavind & Weavind Attorneys in Pretoria, Reinhardt completed an LLM degree at the University of Cape Town, focusing on electronic commerce and civil liberties in cyberspace. He currently heads the IT/Internet Law unit of Sonnenberg, Hoffmann & Galombik in Cape Town and is enrolled for a Postgraduate Diploma in Company Law at the University of Stellenbosch. Reinhardt frequently publishes articles on Internet law and Y2K-related legal issues.
 
Johan Rothmann grew up in Balfour (Mpumalanga) where he also matriculated in 1973. After his military training he embarked on a career in the computer industry, ranging from computer operator to business manager of new technologies. He completed a part-time BSc degree through UNISA. In 1981 Johan founded Properdata, a software company that pioneered application packages for farmers in South Africa. He is currently the business manager responsible for developing and implementing electronic commerce in Boland PKS in Paarl.

35

  1. Smith Internet Law and Regulation 2 ed (1997) 1
  2. Benzine & Garland Accessing and Using the Internet (1995) 26
  3. Kraynak & Hebraken Internet 6 in 1 (1997) 5
  4. GN 769 in GG NO 17984 dd 7/5/1997
  5. See also GN 1320 in GG NO 18272 dd 5/9/1997 (Back)
  6. GN 768 in GG NO 17984 dd 7/5/1997
  7. The same satellite is used for digital satellite television.
  8. The minimum bandwidth on the satellite connection is 64Kbit/s.
  9. Kraynak & Hebraken Internet 6 in 1 (1997) 441
  10. Ibid. 8 (Back)
  11. 103 of 1996
  12. GG NO 18272 dd 5/9/1997
  13. Brooks Internet Blue Paper (1997) 4.1 http://www.internet.org.za/bluepaper.html
  14. 103 of 1996
  15. Smith Internet Law and Regulation (1997) 1 (Back)
  16. See also www.ccic.gov.ngi
  17. ND Cal. 1995
  18. Smith Internet Law and Regulation (1997) 10; see also Burcher & Hughes Internet Service Providers: The knowledge standard for contributory copyright infringement and the fair use defence (1996) http://www.richmond.edu/~jolt/v3i1/burhugh.html
  19. See the definition of the terms in GG NO 18272 dd 5/9/1997
  20. Smith Internet Law and Regulation (1997) 7 (Back)
  21. Ibid. 11
  22. Coetzer in Sawubona Internet scores a high IQ (April 1999) 104
  23. Smith Internet Law and Regulation (1997) 11
  24. Ibid. 201
  25. 44 of 1958 (Back)
  26. 103 of 1996
  27. 44 of 1958
  28. 103 of 1996
  29. Section 78(3) and 78(6)(a) of the Post Office Act 44 of 1958
  30. Section 78(6)(b) (Back)
  31. Section 90A(1)(a); GG NO 4817 31/1/92
  32. Section 40 of the Telecommunications Act 103 of 1996
  33. GG NO 18272 dd 5/9/1997
  34. GN 769 GG NO 17984 dd 7/5/1997
  35. 103 of 1996 (Back)
  36. GN 768 in GG 17984 dd 7/5/1997
  37. As defined in the licence
  38. 103 of 1996
  39. 103 of 1996
  40. 103 of 1996 (Back)
  41. As defined in GG NO 18272 dd 5/9/97
  42. As defined in section 40(2) of the Telecommunications Act 103 of 1996
  43. Section 36 Telecommunications Act; GG NO 18272 dd 5/9/97
  44. 103 of 1996
  45. 103 of 1996 (Back)
  46. Section 65 of the Telecommunications Act
  47. 23 of 1998
  48. Lawrie The History of the Internet in South Africa: How it began (1997)
  49. Ibid.
  50. Africa Media The 1997 South African Internet Services Industry Survey 14 October 1997 see further http://www.mafrica.co.za/isp97.html
  51. Ibid. (Back)