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August 14 2004

The Electronic Law Consultancy is acting on behalf of the registered owner of the web site with respect to the legal claims made by Telkom against the owner of the above domain name. Due to the high-profile media response that has occurred the Electronic Law Consultancy wish to put forward our clients views, so as to avoid misunderstanding in this regard.

Our client has registered the web site domain name with the intention of providing a public forum on the Internet for parties who are unhappy with the services they have received from Telkom, to express their views. The web site was registered in November last year and has been in operation since then, but it would only appear that Telkom has only now, due to recent coverage, decided to object to the web site. Our client has never had any intention of receiving any commercial gain from the web site but is rather a dissatisfied Telkom client who wishes to express this. He does so under the belief that he has a constitutional right to freedom of expression.

From the letter of demand that has been issued on behalf of Telkom it would appear that Telkom has no objections to the postings or comments that are put up on the website but does object to the name of the website and considers this a breach of Telkom’s trademark as well as defamatory to Telkom. Telkom has furthermore stated that they will claim damages in excess of R 5 million from him should this web site not be removed from the Internet.

We believe that the domain name www.telkomsucks.co.za is not confusingly similar to the Telkom name and thus cannot be an infringement of the Telkom trademark nor does it take unfair advantage of Telkom’s reputation. With respect Telkom’s assertion of defamation, our clients right to freedom of speech as enshrined in the Constitution and the common law defense of “fair comment” are both applicable in this circumstance.

It is our belief that our client has the right to complain about services that are very poor, especially with respect to an organization like Telkom that has a monopoly protected by law. The right to freedom of speech and fair comment are essential to the development of the democracy in this country.